Please see below article from Stephen Grosz QC as featured in Solicitors Journal (ISSUE: Vol 159 no 11 24-03-15 24/03/2015)
Human rights lawyers are an unpopular species: they are a thorn in the side of government and they attract public hostility for representing people or causes that are regarded - according to current opinions - as undesirable or unworthy.
Yet these are the very features that make them vital in a functioning democracy that respects the rule of law. It is not only healthy but categorically essential that public authorities should be held to account for their actions. Sometimes, however, they are found wanting; and it is vital that marginalised, vulnerable and disenfranchised people should have representation. And guess what? Not many of these people can afford to pay lawyers, so much of this work must be publicly funded.
As Law Society president Andrew Caplen said recently, the ability of lawyers to perform their professional duties without fear is ‘not only a basic human right for the lawyers themselves, but is crucial to upholding the rule of law in democratic countries.’ This principle is enshrined in the Basic Principles on the Role of Lawyers, adopted by the UN in 1990. These include freedom from harassment and improper interference for doing their job, and the right to independent adjudication of any professional disciplinary charges. Through its Lawyers for Lawyers programme, the Law Society consistently upholds these principles in support of lawyers around the globe; and successive UK governments have also stated their support for them.
What’s suitable for export must apply equally at home, which brings me to the case of solicitor Phil Shiner and his firm Public Interest Lawyers (PIL). Last week, three national newspapers reported that the government had sent the Solicitors Regulation Authority a dossier on Shiner’s and PIL’s conduct in the Al-Sweady inquiry into allegations of murder and ill-treatment in Iraq. Two of the papers said they had seen the dossier, which had been prepared by the Ministry of Defence. All three reported, in strikingly similar terms, details of the allegations made in the dossier, and all quoted a government source. The articles took the government’s allegations for the absolute truth and gave PIL’s response perfunctory coverage. The tone of the reports varied from highly critical to downright abusive, describing Shiner as a ‘shyster’ and ‘the lowest of the law’.
If lawyers contravene the rules of professional conduct, or act unlawfully, they must be subject to professional discipline, as well as the general law, like anyone else. The profession has a responsibility to uphold both its standards and its reputation. But the disciplinary process must be independent, and free from outside pressure, whether it be from the press or government. So if the government - or anyone else - has evidence of misconduct, it is of course right that they should report it to the authorities. But it is decidedly not right that they should show their allegations to the media. Such disclosure would be made in the knowledge that the story would be reported with a hostile tone and that the law firm and individual solicitor cannot respond, both as a result of client confidentiality and because an investigation is pending. The presumption of innocence notwithstanding, the government would also know that, regardless of the outcome of the SRA investigation, the damage to the solicitor’s reputation will already have been done, and any exoneration of PIL and Shiner will be taken as evidence of ‘the nagging concern that the legal establishment will close ranks’.
The government can and does defend its human rights record robustly, but it should not subject human rights lawyers to unfair attack. Last year, defending his legal aid residence test, the Lord Chancellor, who has a particular responsibility to uphold the constitutional principle of the rule of law, wrote: “Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong … And yes, you’ve guessed it. Another group of left-wing lawyers has taken us to court to try to stop the proposals”. In a judgment quashing the residence test, Lord Justice Moses reminded Mr Grayling that ‘It is usually more persuasive to attempt to kick the ball than your opponent’s shins’.
But the government has not learned this lesson. Requiring a regulator to uphold standards of professional conduct is one thing. A responsible person would leave the SRA to conduct its inquiry free from any form of outside pressure. But it is quite another matter to undermine a lawyer’s reputation by feeding red meat to media attack dogs, knowing full well that they will sink their teeth into it. Such conduct risks making human rights lawyers not only unpopular but endangered.
This article is written in a personal capacity