Priti Patel should know that there’s no such thing as an ‘activist lawyer’

During the working day I am a lawyer. For most of the rest of my time I am an activist. But I am not an activist lawyer. Despite the dangerous arguments that have been bandied around by the Conservative-run Home Office over the past week, Priti Patel should know that this is something that just doesn’t exist. The reality is that, under our legal system, the personal views of a lawyer won’t have an impact on the outcome of a case.

I’ve always privately held liberal political views and for the past four years I’ve been an active Liberal Democrat. It’s something I often get asked about by colleagues behind the scenes but I’ve always taken care to keep my politics out of my work. It would be wrong for my personal views to influence the legal advice I give or how I argue a point in Court.

One of the most common questions I’ve been asked is why I would be willing to put my legal career on hold to become a Liberal Democrat MP. Why would I give up something that I enjoy and have worked hard to achieve, in exchange for – let’s be honest – a pretty precarious, highly pressured and intensely scrutinised job in Parliament?

My answer has always been this: there’s an important difference between the roles of barristers and politicians. It comes down to whether or not our own personal views have any influence over the cases and causes that we take up.

As activists and politicians we fight for the causes that we personally believe in. But as a barrister it is my job to fearlessly argue my client’s case in accordance with the law. What I personally think does not matter, and should not matter. And that’s why this idea of ‘activist lawyers’ is such a nonsense.

Our legal system doesn’t allow lawyers to become successful activists unless the law is on their side. Of course, some of the barristers and solicitors who represent those challenging immigration law decisions might well hold political views in favour of more liberal asylum laws. And some might hold more hard line views on asylum. But their personal opinions won’t make any difference to the outcome of any case. That will depend on whether the Government has acted in accordance with the law. If those lawyers are able to ‘disrupt’ Government attempts to stop people claiming asylum, that is because the Government has not acted lawfully. The lawyers are not being activists. They are simply doing their job.

With a few exceptions, and assuming there is space in our diaries, barristers are professionally obliged to take on every case that comes our way. A bit like a cab driver waiting in a taxi rank. That’s regardless of whether we like or dislike the client and whether or not we personally agree with their case. The whole point is that everyone is entitled to fair representation regardless of who they are, what they think or what they might have done. We don’t pick and choose the things we argue for or against.

Last week the Bar Council issued a short but strongly worded statement condemning the Government’s misleading communications about ‘activist lawyers’. The offending video from the Home Office account was deleted, but that did not stop Priti Patel from using the same language in a tweet from her personal account.

I was pleased to see Wera Hobhouse, our newly appointed Justice Spokesperson, call on the Justice Secretary and the Attorney General to condemn Priti Patel’s dreadful comments. As Home Secretary she should know better. She is either deeply misguided or she is deliberately seeking to stoke up tensions with populist anti-lawyer rhetoric as part of the Government’s agenda to stop people holding them to account in the Courts. Whether she is being ignorant of the law or deliberately misleading people, neither is remotely acceptable for someone in her position.

There are plenty of Conservative MPs and members of the Government who are qualified lawyers. They will know that this campaign about ‘activist lawyers’ is disingenuous and dangerous. It is yet another attempt by the right wing authoritarian government to undermine the rule of law in this country.

* Judith Rogerson was the Parliamentary Candidate for Harrogate & Knaresborough at the 2019 General Election and is a barrister specialising in healthcare law. She grew up in South Yorkshire and lives in North Yorkshire. She is a member of the Northern Liberal Network Committee.

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18 Comments

  • Sue Sutherland 7th Sep '20 - 2:34pm

    I think Patel and many others in the Cabinet are both ‘deeply misguided ‘ and ‘seeking to stoke up tensions with populist rhetoric ‘. They are gunning for anyone with the power to prevent them from doing what they want.

  • Knowing what hat you are wearing at any given moment is an important part of being a political activist. Many years ago As a Methodist minister I was accused by a Methodist Circuit Steward of “preaching politics from the pulpit”. He thought it was inevitable and I knew it was nonsense. He had never heard me preach. His rudeness and ignorance was almost as bad as Priti Patel’s.

  • Matt Wardman 7th Sep '20 - 8:06pm

    So Jolyon Maugham is not an activist lawyer because they aren’t allowed to exist.

    Hmmm.

  • Anyone else remember Phil Shiner?

  • Nigel Hunter 7th Sep '20 - 11:43pm

    Considering Patel is a friend of Murdoch and has links to Tufton Street I would say her comments are deliberate .Your last sentence is bang on the button.

  • Andrew Toye 8th Sep '20 - 1:41am

    How do you destroy freedom and democracy in a country like Britain, where we take it for granted that we are the “Mother of the free”; we “never never never shall be slaves”?
    Very slowly, gradually eroding trust in institutions that hold government to account and protect our rights. Set up a “drip-drip” publicity campaign that these institutions are “elitist”, “out of touch”, or even “unpatriotic” and in the long term you can build up momentum for populist “reform”.

    Don’t actually end the mechanics of the democratic process (there will be no support for that) – encourage a cohort of corrupt oligarchs to use their immense wealth to swamp the media with pro-populist propaganda, so there is no real democratic choice as information about alternative options is deliberately sidelined or labelled as treacherous.

    Is there anyone attempting this slow-motion coup in the UK? I think we need to be vigilant.

  • John Marriott 8th Sep '20 - 8:03am

    It’s probably due to COVID but, from the Marriott household’s recent experience, it would be nice to get hold of an ACTIVE lawyer at the moment and the same goes for an active doctor, dentist and any representative you care to name! If this is what ‘working from home means!

  • Peter Martin 8th Sep '20 - 8:37am

    “The reality is that, under our legal system, the personal views of a lawyer won’t have an impact on the outcome of a case.”

    I would say this is the theory rather than the reality. Anyone who has any experience of miscarriage of justice cases will know this. An example I can give is lawyers who allowed, without challenge, a prosecution expert witness to overstate the height of the defendant by 4 inches.

  • Michael Mansfield ? Did some excellent work, but surely qualifies as an “activist lawyer” ?

  • Nonconformistradical 8th Sep '20 - 9:09am

    @Chris Cory
    He has a reputation for human right and civil liberties work.

    So what?

  • He clearly identifies as a campaigning lawyer and has given lectures on the morals and ethics of working in what he described as ‘his space’ as a campigning lawyer. He has even used the term activist lawyer in his lectures, and described how he uses the law to persue his political beliefs
    If he does not fit the idea of an activist lawyer then we are dancing on the head of a pin, which may be where lawyers like to play, but won’t wash with most people.

  • For clarity the above is in reference to Jolyon Maugham.

  • Judith Rogerson 8th Sep '20 - 10:30am

    Thanks to all those who have commented. As I said in my article, as lawyers we will of course have our own views on any particular issue. That might influence what area of law we choose to go into and there are undoubtedly some out there who have done work in cases that I privately consider to be very good causes.

    But the important point is that in this country – despite what some of the media and certain politicians might say – we have an independent judiciary who are overwhelmingly honourable people who make their decisions based on the law and the law alone. Most cases won’t get very far if there isn’t a decent legal argument to back it up.

    That is why I said that, “Our legal system doesn’t allow lawyers to become successful activists unless the law is on their side.” This language of ‘activist lawyers’ implies that there are people out there deliberately scuppering the legal system and disrupting what the Government are trying to do. That is not what is happening. Lawyers can only successfully operate within the law. If the Government disagree with those laws then they can try to change them through Parliament. But when things happen that they don’t like, they shouldn’t seek to shift the blame onto legal professionals purely for their own political point scoring.

  • The approach in this piece is completely wrong. It is clearly possible to be an activist lawyer and possible to be a non-activist lawyer. The US has far more activist lawyers partly because their system allows it and partly because there is more money washing around their political system. This does not mean that the UK doesn’t have any.

    Lawyers choosing pro-bono cases which look to push the law in certain directions are activist lawyers, and there is nothing inherently wrong with that. This is normally those at the CoA cases or above, where case law is really being set rather than helping an individual who has a specific case failing. Where legislation is badly drafted and allows for that governments can correct if there is a legitimate problem.

    The correct criticism of Patel (and many before her) is that in trying to resolve the issue they are concerned with they are doing so incompletely. Attempts to restrict judicial review, or turn the HRA in to whatever the nonsense Grayling came up with shows ineptitude in both administration and politics. Judicial review normally wins when the executive has screwed up, the answer is to do the job properly.

    The appropriate response to an attack on “activist lawyers” is not to claim that they don’t exist but to simply point out that they are few and far between and the problem they are responding to is incompetent politicians.

  • I think this article:
    It’s not “activist lawyers” this government hates, but the laws themselves
    provides a better insight into what Priti Patel and her colleagues in the Conseervative party are up to. ; people need to learn to look a little deeper to find the real target.
    We are seeing the same ofuscation in other areas where the government is wanting to increase executive power without Parliamentary involvement: Withdrawal agreement, Planning law (changes ‘necessary’ to permit construction of Brexit lorry parks etc.).

    Fundamentally, Brexit as far as the establishment Conservtive party was concerned wasn’t about the EU but about their executive being able to do whatever they want ie. to restore the power of the monarchy/crown/executive over a ‘sovereign’ Parliament. ..

  • We have no freedom. No one is fighting for it. Now put your muzzle on, stand here, and do that.

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