26 May 2021 — Good Law Project
What should the campaigner do if he hears from an insider that a formal response to judicial review proceedings is “a work of fiction Government has created”? Should he close his ears? And if he is sent documents supporting that proposition, what then? What should he do if those documents show Ministers acting in ways their own lawyers – and external lawyers after that – told them was unlawful?
The stakes are high: large sums of public money, a diminished but still precious pool of public trust in our institutions, and the integrity of judicial review proceedings.
Judicial review is meant to be a partnership between the courts and Government “based on a common aim, namely the maintenance of the highest standards of public administration.” The very rules governing how judicial review is conducted are shaped and conditioned by that central idea. In judicial review proceedings, Government is exempted from the onerous duties of disclosure that apply to all other litigants in civil litigation. The reason for the exemption is the high duty of “candour” that applies in judicial review. It imposes on Government a duty to put all of the relevant facts before the Court, including (indeed especially) those facts that are harmful to the Government’s case. The current system of judicial review simply cannot work if Government lawyers do not hold true to that idea, if they become gladiators rather than servants of public administration.
In Tuesday’s Guardian profile I explained how I had answered those questions in relation to the Abingdon case.
The information that was leaked to me was shared with a senior journalist whom I trusted, on terms that protected my source. In the event, I left to that journalist the ethical and legal questions of what should (or should not) properly be published. I did so having taken and weighed legal advice. I did so not with an eye to protecting myself – but mindful of the promise I had made to those who fund the work we do.
The Government’s lawyers responded with a series of furious letters culminating with this:
My lawyers responded thus:
I do not know whether the GLD has referred me to the Bar Standards Board. But I did not self-refer because I believed that my actions were consistent with the trust and confidence the public should place in the Bar. I don’t want to mount a high horse – they have a tendency to get rather unruly – but that was the course of action I thought delivered on the promise I had made to our funders.
What I do know – and you may think this speaks to its motivation – is that to the best of my knowledge (and I have asked) the Government never raised any complaint to or about the Daily Mail, the newspaper that actually published extracts from the Government’s documents. You might ask yourself (and I have certainly pondered this question): what might cause the Government to threaten a solitary lawyer but to choose not even to write to the Daily Mail?
This is far from the only, I believe, wrongheaded attack on me by Government lawyers.
In a recent witness statement, supported by a statement of truth, a lawyer acting for the Secretary of State suggested that I had deliberately misled the court as to who was funding our Abingdon case. He had, so far as I can see, no evidential basis for doing so, indeed the allegation did not appear to be supported by a shred of evidence. He did not put the points to me in correspondence before swearing them in a public witness statement. And they lacked any remote foundation, as I explained in my witness statement in reply:
It’s not really the point – whether this was an appropriate way for the Government to behave can’t be determined after the event – but the Judge accepted my evidence. Our note of her judgment records: “I accept Mr Maugham’s evidence who has set out very carefully and fully the Claimant’s finances.”
Unfortunately, these are only examples of recent, I believe unfounded, attacks on my conduct by the Government.
I think – and this is one of the reasons why I have not named the individual lawyer who wrote both the letter and the witness statement that I have cited above – that these incidents illustrate the extremely difficult position Government lawyers now find themselves in. The devil is a Government with a diminishing attachment to the truth and the deep blue sea the obligations which the lawyers acting for that Government have to the Court. Pity those trapped between the two.
But what I want to say to those who support Good Law Project is this.
I have arranged my life – including giving up my practice at the Bar except for a few cases still in ‘run-off’ – to be able to do this work in a way that feels ethical to me. Where I make mistakes, and in life mistakes are inevitable, I hope I will have the courage to tell you so. But one of those mistakes will not be that I put my preference to avoid direct attack from Government ahead of delivering on the promise I have made to you about the work that Good Law Project will do.
Until Government shows a serious interest in keeping its own house clean we will be brave in working to expose the truth.
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