Lawyers should never again be dubbed ‘woke’, warns former Treasury Solicitor

Lawyers should never again be described as ‘woke’ or ‘activist’, former Treasurer Solicitor Sir Jonathan Jones said today as he set out  ‘unsolicited advice’ on what steps this or the next government should take to show its commitment to the rule of law.

Jones, who ran the Government Legal Department from 2014 to 2020, when he resigned as Treasury solicitor in protest at the government’s plans to breach the special Brexit arrangements for Northern Ireland in contravention of international law, said: ‘I no longer work directly for the government but I’m going to offer it some unsolicited advice anyway… [This] might be particularly relevant to a new government, whatever its political composition, following a general election which must happen some time before January 2025.’

Jones said the first thing that government should do to underline its commitment to the rule of law was to ‘say so – and mean it’. He said: ‘It could express confidence in the vital role of the independent judiciary in [applying] a body of law; and the role of lawyers in fiercely, frankly and independently advising their clients whatever their politics. Let us never again hear judges described as “enemies of the people” for independently ruling on the law, or lawyers described as “woke” or “activist” just for doing their jobs. Such language is wrong and corrosive.’

Jones, who was addressing the 2023 European Conference of the International Legal Finance Association, added that ‘words should be backed by actions’, and so the justice system must be properly resourced rather than treated by government as ‘just another service’, as the outgoing lord chief justice Lord Burnett of Maldon highlighted to the House of Lords Constitution Committee earlier this month.

Noting that there have been nine justice secretaries in the past 10 years – or ‘10 if you count Dominic Raab twice’ – Jones said the role of head of the judiciary should be held by someone with ‘real legal standing and political heft’ who had ‘held the job for more than five minutes’. He stressed that his remarks were not aimed at the current incumbent, former legal aid barrister Alex Chalk KC.

Turning to international law, Jones said the UK’s commitment to abiding by international law including treaty obligations had been ‘seriously thrown into question’ in recent years.

He said: ‘In the Internal Market Bill in 2020, the government said explicitly that it was prepared to break international law in limited and specific ways, by legislating to override the Northern Ireland Protocol, which was part of the EU Withdrawal Agreement that the government itself had negotiated and concluded only months before… So a row ensued which included my departure as Treasury Solicitor. The offending provisions were later withdrawn, but the damage was done.

‘The UK government has shown and said that it was prepared to renege on its treaty obligations when politically inconvenient… How could any international partner know when it might do that again? And indeed it did. The Northern Ireland Protocol Bill introduced last year contained even broader breaches of the protocol.’ This bill was ultimately dropped following Rishi Sunak’s negotiation of the ‘Windsor Framework’ with the EU Commission on 27 February.

Jones said that to restore international trust, the government should take the ‘visible’ step of re-instating the reference to ‘international law’ in the ministerial code. He said: ‘The code talks about the overarching duty of ministers to comply with the law. Before 2015, it went on to say ‘including international law and treaty obligations’. It would send a positive message to [re-instate those words]’.

In relation to EU law, Jones noted that the 600 EU laws to be repealed at the end of this year under the Retained EU Law Bill are ‘pretty unimportant’. But he warned that the bill contains ‘wide powers in future for ministers to go even further to revoke, change or replace former EU laws with no public consultation, relatively little notice and with at most a short debate in each house of parliament – and in many cases, not even that.’

He added: ‘So my unsolicited advice to the government in using these new powers, is, please consult anyway. Consultations make for better, more workable laws… And allow parliament a proper opportunity to scrutinise such wide-ranging changes to our law.

‘One of the objections to EU law is the lack of democratic input. Let us not replace it with a system which is even less democratic. If Brexit was about taking back control of our laws, let that be proper democratic control by parliament.’

Jones is a senior consultant in public and constitutional law at Linklaters and a visiting professor at Durham Law School.

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