There is no choice over the rule of law

Do solicitors have a choice as to how to respond to the Northern Ireland Secretary’s admission in the House of Commons last week that the Internal Market bill would breach international law 'in a very specific and limited' way? Or indeed to the lord chancellor’s threat to resign over the Internal Market bill if the government 'breaks the law in a way that I find unacceptable'?

Ordinary citizens are of course free to respond to such controversies how they want, and have been freely doing so, often viewing them through the inevitable Brexit lens.

Is the proposed bill part of hardball negotiations against an EU acting in bad faith? Is it a wind-up distraction to throw red meat to Brexiteers after all the bad publicity over the pandemic? Is it a proper and patriotic response to a threat to the union?

We can have great fun discussing the politics, and if we were not solicitors, that is all we need do.

But there are obligations on solicitors, and on the lord chancellor, which do not apply to other citizens.

The first of the SRA’s principles addressed to solicitors is that: 'You act: in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice'.

The lord chancellor takes an oath on assuming office, under the Promissory Oaths Act 1868, that he or she will respect the rule of law.

The current incumbent has wriggled out of the dilemma by saying, in effect, that nothing has happened yet: the bill has not been enacted, the EU has not behaved in a way that would bring its provisions (if passed) into effect, and so there is no breach of international law.

Under the SRA principles, it is the constitutional principle of the rule of law that must be upheld. It is on adherence to that principle that solicitors will be judged, and not on any actual breach that may or may not take place.

Can it really be argued then that a threat to break the law, even if it is international law and even if only in a limited and specific way, is not a breach of upholding the principle of the rule of law, regardless of whether any breach has yet taken place or will ever take place? Can a solicitor support such action? I would argue not, for the following reasons.

First, threats are often themselves treated as breaches of law in other contexts.

Second, people have obviously retorted that they will then use this defence themselves when faced with a criminal charge.

To this, the lord chancellor said in one of his interviews that ‘we are talking about a difference between international law and domestic law on a political scale. It’s a world away, I would suggest, from issues of enforcement of the law and regulations on a day-to-day basis’. A journalist from the Financial Times asked legal experts whether this held up in law, which was answered by leading legal Twitterati with a resounding 'No'.

It must follow then that the lord chancellor – and the Attorney General and any other lawyers in the government – are in breach of the duties which apply at any rate to our side of the profession, the duty to uphold the constitutional principle of the rule of law.

In other words, in the secrecy of our heads where we are only private citizens, we may support the government in its wish to play hardball in its negotiations with the EU or to cheer up its voters, or in some other laudable aim we may discern.

But in our role as solicitors we cannot support the government’s stated intention to break international law.

What would happen to a solicitor in a different context who expressed support for someone who had declared an intention to break the law – to take an extreme case, for a terrorist threatening to blow up a building, or in a mild case, for a company threatening to break an element of consumer law? If our support were publicly stated, it would undermine the reputation of the profession and doubtless expose us to the danger of disciplinary proceedings.

Some think the Law Society should stay out of this political knife-fight. But it is the representative body of solicitors. It is not there to express political opinions, and so kept out of the great Leave-Remain debate. However, a threat to the rule of law is a different matter. It conflicts with one of the core values of the profession.

As with solicitors themselves, the Law Society has no option but to condemn a threat to the rule of law and express dismay at a lord chancellor who will resign only if there are breaches of law by the government which he personally finds unacceptable.

Jonathan Goldsmith is Law Society Council member for EU matters 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