The Rwandan lawyer trap has snapped shut

This was the week when the Rwandan lawyer trap, carefully set by the government, snapped shut on its intended victims.

Having said from the moment the plan to send migrants to Rwanda was first announced that it would be opposed by lawyers, the prime minister predictably ‘lashed out at liberal lawyers for delaying his plan to send thousands of migrants from the UK to Rwanda - and vowed to get it done’.

The Law Society responded with a dignified statement, which garnered many thousands of likes and retweets. It pointed out that the prime minister’s comments undermine the rule of law and can have real-life consequences. The Law Society even released a video with similar sentiments. I would assume that every solicitor would agree with the statement. But that is just music to the ears of the trap-setters, showing that they have succeeded in their aims.

In the same week, a government-supporting newspaper – just as predictably - went further, and named the law firms involved in at least some of the potential Rwandan challenges. It said that the lawyers concerned ‘have blood on their hands’, ‘are effectively colluding with the criminal gangsters’, ‘might be called the political wing of the trafficking movement’, and so on.

It is a marvellous coincidence that last week also saw a government official suffer in the courts for verbally abusing a lawyer. That was in the European Court of Human Rights case of Mesić v. Croatia (Application no. 19362/18), published on 5 May 2022.

The circumstances are somewhat different to those of our prime minister, who repeatedly and generally attacks all liberal (or lefty) lawyers as a group, since the official in question here, who was the president of Croatia at the time, named the particular lawyer when he said something disobliging about him – essentially, that the lawyer needed psychiatric treatment. But the reasoning of the court is interesting for laying down rules about the consequences of attacks on lawyers by high state officials.

The court was faced with a dilemma over clashing rights under the European Convention of Human Rights. Two were involved, which needed to be weighed against each other: the right to freedom of expression under Article 10, and the right of a person who is facing abuse (such as a lawyer who is not in the public eye) to protection of reputation under Article 8.

We need not bother with the particular arguments in the judgement, apart from one. It was put by two of the interveners, which were the national bar of France and the Paris Bar. The Law Society should take note of their intervention, because it articulated one of the grounds on which the lawyer’s case was found to be successful.

The court found that ‘high-ranking state officials attacking the reputation of lawyers and making them objects of derision with a view to isolating them and damaging their credibility – as the applicant did in the present case – is often as effective as a threat in preventing lawyers from exercising their professional duties. Such statements could … have serious consequences for the rights of the accused and the right of access to a court, which are essential components of the right to a fair trial guaranteed by Article 6 § 1 of the Convention’.

The court specifically cited this argument when it found that the interference with the former president of Croatia’s right to freedom of expression under Article 10 was necessary in a democratic society to avoid a 'chilling effect' on professional duties carried out by lawyers.

Exactly the same could be said about the prime minister’s repeated comments about liberal/lefty lawyers. He does not name specific lawyers or law firms, but he does not need to, because he presumably knows how the game is played. Willing journalists will usually do the work for him soon after, as happened on this occasion. Sometimes photos and biographies will accompany the press’s repetition of the accusations, as after the recent parliamentary debate when some lawyers and law firms were named in the House of Commons during the SLAPP controversy. And the same occurred at the time of the ‘enemies of the people’ furore over judges.

Some support the prime minister’s targeting of lawyers, forgetting that our legal system is based on the adversarial system, where opposing arguments – some obviously against a government policy, where that is the matter under question – need to be heard for the rule of law to be maintained. Some say that it is part of the lawyers’ role to absorb such criticism and to carry on regardless.

But the case of Mesić v. Croatia reminds us that attacks by a prime minister on lawyers exercising their professional duties can have a chilling effect on the right of access to justice.

Jonathan Goldsmith is Law Society Council member for EU & international and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society

This article is now closed for comment.