Yesterday, one of the partners in our firm drew my attention to the Home Office’s video describing immigration lawyers as “activist lawyers” who “delay and disrupt” the deportation system. Later that evening, following wide condemnation from the Law Society and the legal community at large, the video was taken down and the Permanent Secretary of the Home Office gave a response to associated complaints.
Today, I’d like to step away from my standard business focused pieces and explain why, as a new member of the legal community, I feel that removing the video, together with the response was not enough.
Firstly, taking the video down does not mean that it is deleted. Our modern age of communication has made circulating and sharing content faster and easier than ever. The second ‘post’ was hit, the damage was done. The Home Office cannot act like a child covering their eyes with their hands during hide and seek – we can still see you Home Office and we believe an investigation must be conducted into how this message was allowed to be communicated in the first place.
Secondly, the response was almost as bad as the tweet. In writing a response to Jonathan Portes’ complaint (not a direct public address or apology), the Permanent Secretary, Matthew Rycroft CBE, cited the reason behind the tweet being that “legitimate and legal returns are often frustrated by individuals and lawyers putting in last-minute claims”. Frankly, this is baffling.
Just because the Home Office says a certain action is legitimate and legal does not make it so. If the proposed deportation of a person is legitimate and legal, then that individual’s argument in opposition to the Home Office would ultimately be unsuccessful. The important factor here is due process, with any decision being one of the Court alone. Our system allows an individual to make their case fairly in a judicial setting and this requires independent, qualified legal representation to function.
It is the lawyer’s job to uphold the rights of the person granted under law. By issuing an application, these lawyers are not participating in activism; they represent a person seeking to preserve the rights to which parliament says they are entitled.
From a deeper perspective, the tweet and response may represent a dangerous undercurrent of thought. An undercurrent that is sadly not unknown to history. Lawyers have at times been targeted, persecuted or silenced as a repressive measure all over the world. Between 2016 and 2019, the Council of Bars & Law Societies of Europe had to intervene in support of almost 800 persecuted lawyers by alerting the relevant authorities at a national and European level. Beyond Europe, the 709 Crackdown saw the mass arrest of lawyers who sought to represent or assist human rights activists in China in 2015. Your first reaction may be “wow, these are a bit of an extreme comparison” but it is important to note the context. Studies show that a third of the world are living in declining democracies, including the United States – the land of the free. One of the first signs of a declining or failing democracy is the erosion of rule of law and judicial independence. I am not suggesting we are in an autocratic crisis, but I wish to draw your attention to the risks of undermining a lawyer’s function.
If branches of our executive see the rule of law as a nuisance and a cause for delay, this is a dangerous seed that could grow into a poisonous shrub. Think of what could happen to our legal aid funding if the Minstry of Justice shared the Home Office’s view expressed yesterday.
Lawyers are a constitutional requirement. They allow the ‘check and balance’ to function effectively. This, together with lessons from history, is why the Home Office’s conduct yesterday cannot just be considered a tweet-gone-bad. They should have known better and if they didn’t, the question is why?