Legal challenge brought by Oxford Professor against Lord Chancellor’s failure to respect the rule of law in his conduct concerning the UK Internal Markets Bill.
On 12th November 2020, lawyers acting on behalf of Professor Joshua Silver of Oxford University filed an application for Judicial Review against the Lord Chancellor, Robert Buckland QC MP seeking a Declaration that he is in breach of his oath of office, having failed to "respect the rule of law".
This claim aims at resolving a constitutional crisis which, if not addressed, exposes the UK to continuing damage to its credit worthiness and to its credibility and international standing in the political world and in financial markets.
For centuries the Lord Chancellor has been “the Guardian of the rule of Law” in Cabinet. In 2003, the then Labour government changed that role. Serious concerns were raised as to how the rule of law would be protected in Parliament going forward. In response the Government enacted the Constitutional Reform Act 2005 which was backed up by a requirement that the Lord Chancellor swear an oath "respect the rule of law". Uniquely, the Lord Chancellor is the one Cabinet member with this important duty.
On 9 September 2020, the Government published the United Kingdom Internal Market Bill. It was immediately seen that this contained clauses which, if enacted, would breach the terms of the Withdrawal Agreement, an international treaty recently entered into between the UK and the EU. That would be a breach of the rule of law.
There was national and international uproar: Lord Keen (the Advocate General, the Government’s legal advisor on Scottish law) resigned; Sir Jonathan Jones QC (the Permanent Secretary to the Government Legal Department) resigned; Vice-President of the European Commission complained saying that if the Bill were to be adopted "it would constitute an extremely serious violation of the Withdrawal Agreement and of international law"; The President of the Law Society complained that to hear the UK Government proposing to breach international law was "shocking"; Moody’s, the international rating agency downgraded the UK’s credit rating for reasons which reportedly included "the weakening in the UK’s institutions and governance". Joe Biden, now president elect of the USA, issued a concern, warning the Prime Minister Boris Johnson not to let Brexit destabilise the Good Friday Agreement concerning Northern Ireland.
Yet the Lord Chancellor, who appeared to accept that adherence to International Law could be “fudged”, did not either:
- call the Cabinet to account or
- resign. His conduct suggests that he considers that his Oath to respect the rule of law is meaningless.
This claim seeks to challenge that assessment. It maintains that the Oath is meaningful; that the Lord Chancellor must either prevail on the Government to uphold the rule of law, or consider his position. Without the protection of a meaningful Oath, the Judiciary and the rule of law itself have no one in Cabinet to protect them.
The concern for the validity of the Oath was triggered by a Brexit related bill, but the claim is entirely Brexit neutral. Professor Silver is seeking to protect the rule of law, and has no agenda regarding the underlying legislation.
Professor Silver explained why he was pursuing the Claim:
I am very concerned that our Government is ignoring overwhelming and repeated protests from senior retired Judges, Former Prime Ministers, Parliamentarians and academics that its conduct will erode trust and confidence in the United Kingdom. The rule of law is the foundation for any democratic society. We as citizens need a Lord Chancellor as an effective and accountable guardian of the rule of law.
WHY THE CASE IS IMPORTANT
The UK has perhaps the most well respected legal system in the world. More international contracts apply English Law than any other legal system. That drives business to the UK which is seen as a safe destination for investment and jobs. All of this is undermined if the rule of law is not respected.
Now more than ever before, we as a Nation need to maintain and strengthen our relationships with other States and build on the respect we have the world over as a beacon of legality. How can they trust us if we show that we are prepared to violate our International Obligations? The Lord Chancellor is meant to stand up for the rule of law. Unfortunately, this is not happening, and the consequences for our society as well as our future International relationships may be very serious,
said Professor Silver
Despite requests, the Lord Chancellor has refused to explain his conduct. In an interview with Kay Burley on Sky News on 16th September 2020, he said that he would only consider his position as Lord Chancellor if the UK was found to have breached International Law in a way which "cannot be fudged", suggesting that ‘fudging’ a breach of International law is acceptable.
This strikes me as deplorable and betrays a disturbing disregard for the rule of law,
said Professor Silver
It is essential that the Courts have an opportunity to confirm whether the checks and balances within our constitutional arrangements, designed to safeguard the rule of law, are actually effective. That is what this claim seeks to achieve,
said Khawar Qureshi QC, counsel for Professor Silver.
Professor Silver is represented by Leading Counsel Khawar Qureshi QC, who was formerly a UK Government “A” Panel Treasury Counsel, and international litigation specialists Asserson Law Offices.
For further information:
Asserson Law Offices
Telephone - 0203 150 1300
We can provide a copy of the Grounds for Judicial Review on request.