5 times the Johnson government complained about ‘lefty lawyers’

There are legitimate reasons to deprecate the conflation of lawyers with their clients, but there are also reasonable grounds for criticising the de facto open border policy espoused by many left wing lawyers, including nearly all immigration lawyers.

There are reasonable arguments that (1) Parliament has delegated too much power to the courts; and (2) Strasbourg in particular has gone off on a frolic of its own, contriving ‘left wing law’ which has not undergone proper democratic scrutiny. Those of a left-wing inclination will disagree, but there are real issues about (a) judicial review being used to conduct ‘politics via the court room’ by zealots unable to support their position at the ballot box; (b) the concept of non-refoulement; and (c) Article 8 of the European Convention of Human Rights (“Article 8”). It is perfectly legitimate to believe that English and Strasbourg judicial positions are both the proper ones, and that any adverse consequences are an acceptable price to pay, but it is dishonest to ignore the fact that many people disagree. Specifically:

– Judicial review. Judicial review is routinely used to defeat the clearly-supported intent of the electorate. Deportation appeals by foreign criminals are an excellent example. I’m familiar with the predictable responses about tyranny, executive power, etc. but it is a reasonable position (reasonable, not universally shared) that the UK ought to be able to efficiently and effectively dispose of foreign criminals without interference from legal aid-funded activists milking increasingly angry taxpayers.

– Non-refoulement. This is the principle that countries cannot return people to potentially dangerous countries. There are many potentially dangerous countries. This doctrine means that dangerous people who force or trick their way into the UK can not be returned to their country of origin if they can persuade a court that on the balance of probabilities there is a threat to them in that home country. Inevitably, migrants are tutored to contrive excuses to withstand judicial scrutiny: I remember a BBC journalist being asked by someone in Sangatte whether it would be better to pretend to have been oppressed back in Africa for Christianity or for being gay. They’re both unfalsifiable, so such tactics work.

– Article 8. Both criminals and other terrorist suspects’ own Article 8 ‘right to a family life’ have prevented deportation in the past, and also that of their families – i.e. dangerous convicted criminals have been able to remain in the UK because their deportation would have adversely impacted their children. (The obvious answer would be to deport the entire family, but…)

– Social cohesion/economic impact/terrorism. Social cohesion and economic impacts are obvious, but terrorism is also a problem. The above stratagems apply equally to those who would do us harm. Since we can’t expel them, the UK population is left either paying a small fortune for 24/7/365 Security Service surveillance teams to monitor individuals, or – as there are thousands of such, usually [redacted religion], threats – it leaves them unmonitored and potentially lethal.

I’ve focused on immigration, as this area provides the easiest examples. All of the above issues however are political ones on which reasonable people can differ. Thomas Hobbes’ description of reality in “Leviathan” in 1651 remains true: in much of the world, people’s lives are “solitary, poor, nasty, brutish, and short”. We can’t change that, and we are not obliged to take in anyone who demands entry, simply because they came from somewhere unpleasant. How many, if any, we accept, and how we deal with them, are issues which *voters* ought to decide, not left-wing pressure groups. That is demonstrably not the case at present. Those on the left should be more sympathetic to this argument, as it loses their side votes, and allows the plainly incompetent Tories to triumph.

We survived well enough in the past, before the overreach of judicial review and before the Human Rights Act 1998 incorporated the Convention into domestic law, with enforcement at Strasbourg available in extremis. While I broadly prefer the status quo after the Act was implemented in 2000, I would be comfortable if we amended all of the areas above to limit their application solely to second generation UK citizens. This would prevent it being abused by non-nationals and recent arrivals.

Plainly, this is not a view held by the left, and it would also require very clear Parliamentary drafting and derogation or withdrawal from both the ECHR and Refugee Convention. But to simply argue there is one correct view, and that those who diverge from it are dumb populists, as the left usually does, paints an unfair picture of critics’ positions – and is simply bad politics.

Re. the predictable intervention of the courts into the Rwanda plan, I said to friends ages ago that we would need to withdraw from the ECHR to regain UK autonomy, and Lord Sumption alluded to this almost a decade ago: https://www.theguardian.com/law/2013/nov/28/european-court-of-human-rights (the link in that story to his speech is broken. It’s now at https://www.supremecourt.uk/docs/speech-131120.pdf).

Finally, I would respectfully submit that any lawyers who work in the area of so-called “human rights” are clearly biased. Not because they pay their mortgages by extracting money from taxpayers for such work (though that is also true), but simply because it is axiomatic that they are on the left of the political spectrum. Those of us who are on the right (and who instead share the views of, e.g. Jonathan Sumption and the late Keith Joseph), specialised in commercial and chancery work. That doesn’t give ‘human rights’ lawyers a stronger claim to standing than us – or the average bloke on the street: quite the contrary. One can confidently predict human rights lawyers’ views in advance, regardless of the merits of reform.