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Boris Johnson Is In A Tug Of War Between Populism And The Rule Of Law


4 min read

Boris Johnson has been accused of putting “populism” before the rule of law by showing a “temperamental disregard” for international conventions when it hinders key policies.

Critics of the Prime Minister point to plans published this week to override parts of the Northern Ireland protocol, and the government’s new policy of sending asylum seekers who arrive by illegal means to Rwanda for processing as key examples. 

Both have been heavily condemned by the legal profession, who in turn Johnson’s allies have accused of politically motivated activism. 

Former justice secretary David Gauke believes ministers are “welcoming a row over our legal system” by attacking lawyers involved in appeals against removals to Rwanda, claiming that the rhetoric was being used as a “distraction”.

“They’re constantly searching for political dividing lines, and trying to provoke anger amongst the population and play into this belief that there's liberal elites that are standing in the way of supposedly common sense policies. It really just is pure, pure populism,” he told PoliticsHome.

“What the government should be doing is delivering sensible policies for the British public rather than trying to act like your mid-market newspaper columnist.”

Gauke said that the government had a “temperamental disregard” for the rule of law and was guilty of a “de-prioritisation of complying with rules and laws” that “got in the way”. 

“I’m sure that if they could not breach international law but achieve their objectives, they would. But if it comes to a choice between breaching international law or backing down, their priority is to carry on regardless, and that is damaging for the UK's international reputation.”

The former Cabinet minister, who resigned his post in 2019 following Boris Johnson’s election as party leader, added that the government’s arguments for ripping up the Northern Ireland protocol were “very thin and unconvincing”. 

The government has repeatedly insisted that its plans to override the post-Brexit trade agreement are compliant with international law, and while a summary of its legal position to accompany the legislation presented to the Commons on Monday was published, it did not detail all of the legal advice received. 

Last week PoliticsHome revealed that First Treasury Counsel, James Eadie QC, was not asked to provide his view on whether the plan breached international law, and that in his opinion it would be "very difficult" for the government to "credibly" argue that it did not. 

Ellie Cumbo, head of public law at the Law Society, said the government was treating legal advice as “inconvenient and obstructive” instead of as a “vitally important constitutional check and balance on executive power”.

She added that current arguments mounted by ministers defending its stance on the Northern Ireland protocol have come with a “side order of attacks on lawyers”.

“Not only are they proposing a more, let's say, flexible approach to whether they obey their legal obligations than previous governments have done, but they also seem entirely set against acknowledging the legitimacy of challenge when they do that,” Cumbo continued.

“We would say that that is as concerning as the proposals themselves. It's one thing for governments to float an idea. It's another thing to seem entirely resistant to the idea that they can be held to account for those proposals.”

The government has also come out strongly against the lawyers and campaigners hoping to prevent the first flight of asylum seekers leaving for Rwanda.

Johnson told a Cabinet meeting on Tuesday that the lawyers challenging the flight in court were “abetting the work of criminal gangs” and urged his colleagues not to be “deterred or abashed” by criticism of the scheme.

Speaking to journalists later, he also suggested that he would be willing to withdraw the UK from the European Convention of Human Rights (ECHR) if legal appeals against the Rwanda flights continued.

“Will it be necessary to change some rules to help us as we go along? It very well may be. All these options are under constant review,” he said.

Several attempts to prevent the deportation flight to Rwanda have failed, with the Supreme Court denying an appeal from one asylum seeker on Tuesday.

Setting out his reasoning, the court’s president Lord Reed said he’d had an "assurance" that those deported would be allowed to return to the UK if the Rwanda policy is found to be unlawful at a later date.

He defended the lawyers who had brought the claims, adding. “In bringing that application, the appellant’s lawyers were performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the government,” he added. 

Cumbo said it was “unusual” for the Supreme Court to have to defend legal professionals in that way, and that the interventions “speaks to the government's narrative around these issues”.

“I don't think that it is an insignificant development that the highest court in the land feels it does have to point out that the workings of the judicial system are entirely normal and valid.”

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