Sunak v Truss: The Legal Battle
As we enter into the dog days of summer there are far fewer ‘serious’ news stories about to comment on. Parliament is on its summer recess and for courts the Michaelmas term does not begin until October.
Nevertheless it is easy to forget that we are also in the midst of a leadership contest that will decide who the next prime minister will be and so in this edition of the newsletter I thought it would be interesting to take a look at the records of the two contenders and try to understand what the legal world will look like under their premiership.
Rishi Sunak
Sunak has been an MP since 2015 and does not have experience in the legal sector. Before he was elected he worked in the banking industry and so, as he became recognised as a rising young star within the Conservative party, he was appointed as chief secretary to the Treasury and then later as chancellor of the Exchequer.
It is that access to the purse strings that helps to give us some ideas about Sunak’s views on funding to the legal sector.
In October 2021, Sunak delivered a budget that was warmly welcomed by the Law Society. As part of the effort for the justice system to recover from the global pandemic, the Ministry of Justice’s budget was increased by more than £3 billion and there was government investment of around £1 billion to address court backlogs.
This was all very positive but there has also been a systemic failure to invest in legal aid and that has led to the ongoing strike by the Criminal Bar Association. That industrial action is not something that Sunak is specifically at fault for because it has been a government policy that stems from the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Nevertheless he did very little to redress this problem and it is telling that this (as well as industrial unrest across other occupations) has come to a head while he was in Number 11 Downing Street.
One of the other areas where we can look at the record of the candidates on legal issues is human rights. Now that Brexit is pretty much done and dusted, the Conservative party are looking for other foreign ills to blame things on and that tends to result in a hard-line on immigration and threats to the UK’s membership of the European Convention on Human Rights (ECHR).
I talk about this in the podcast this week as well, which concerns human rights arguments in the context of immigration law. Despite it being very clear that great focus is placed on the public interest in deportation when it comes to foreign criminals in the UK, this will still not be enough for many in the Conservative party and that includes the contenders themselves.
Recently Sunak said that all options should be on the table when it comes to the UK’s membership of the Convention. In fact he went a bit further during his interview with Andrew Neil and said the quiet part out loud:
Human rights law were once seen as something that strengthened our democracy and ensured people were not subject to abuse from public authorities. Now, instead, they are seen as something that just gets in the way of policy.
Liz Truss
Truss has had a longer political career than Sunak as she became an MP in 2012. During her time in Parliament she has held a number of different posts but the one that is most directly relevant to us is her time as the Secretary of State for Justice from the summer of 2016 until the summer of 2017.
At the time her appointment itself was controversial because she does not have a background in the law and there were concerns that she was more of a lackey for Theresa May rather than someone who would stand up for the principles of justice. In fact Lord Faulks resigned on this issue and was proven somewhat correct in his assessment when the infamous ‘Enemies of the People’ headline was published on the front cover of the Daily Mail following the Miller decision in 2017. Truss failed to defend the judges at the heart of that story and did not stand up for an independent judiciary in general.
Her lack of expertise should also be a concern if Truss eventually becomes prime minister. Like Sunak, she has threatened the human rights regime in the UK and has arguably gone further than her rival by saying that she is prepared to pull the UK out of the ECHR if reforms aimed at curbing the influence of judges in Strasbourg are unsuccessful.
Over the course of the contest both candidates have also sparred on the issue of immigration with each trying to appear tougher than the other. Once again though it is Truss who appears to be going further than her rival in a bid to secure the keys to Number 10. Whereas Sunak has expressed support for the Rwanda migrant scheme, Truss wants to sign similar agreements with other countries.
The Rwanda scheme itself is on rocky ground after a number of defeats in the courts for Priti Patel. The case is due to be picked up in the autumn and if the policy is dealt a final nail in the coffin it could set up a clash between the courts and the new prime minister, whoever they might be.
Overall I think we should be a little hesitant with some of the remarks that the candidates have made so far on the campaign trail. As noted above, they are trying to appeal to a core base of the party and that means expressing a strong stance on issues such as immigration or law and order.
The reality for the new prime minister will be quite different. Whether they seek a mandate in the form of a general election or not, there is now another election on the horizon and it will not be long before all of the parties enter into electioneering mode.
That might be a good thing for the justice system as a new prime minister may not want to be blamed for court backlogs or striking barristers.
The more likely scenario is that it is a bad thing for the legal sector. There is a cost of living crisis and, with a recession predicted for later on this year, it is only getting worse. If cuts need to be made then, as if often the case, it will probably be the justice budget that gets cut first.
Whether it is Sunak or Truss, the road ahead look rocky.
The podcast this week looks closely at a couple of tests around immigration law:
the ‘unduly harsh’ test
the ‘very compelling circumstances’ test.
Both are to do with the deportation of foreign criminals and whether that deportation should be permitted based on a number of factors.
The Home Secretary argued that the way the tests are applied should be changed and so the Supreme Court was asked to clarify.
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Marcus