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History shows the pliability of lawyers during times of political upheaval

‘Lawyers who do not choose the dark side will have to show that the rule of law is worth fighting for,’ says Sir Geoffrey Nice QC

26 October 2016

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The lead prosecutor of Serbian president Slobodan Milošević has highlighted the compliancy and pliability of lawyers working in states during times of political upheaval, such as in Nazi Germany, and warned against the profession repeating the mistakes of the past in post-Brexit Britain.

Writing in the new report from Brunel University-based think tank Britain in Europe, Sir Geoffrey Nice QC said: ‘Post-Brexit lawyers will be operating in a new environment where the supremacy of international human rights norms cannot be so easily taken for granted and if it becomes acceptable to slip back from today’s liberal norms – for economic, ethnic, cultural, demographic reasons – then lawyers may have to confront our state more directly than has been their responsibility to date.’

Referencing the fact that two-thirds of those present at the Wannsee Conference in January 1942 were lawyers educated to doctoral level, Sir Geoffrey writes: ‘If the UK state were to need compliant lawyers to do its work that might by today’s standards be thought unworthy, it would have no trouble finding them. Look no further than the Nuremberg Laws or the Nazi’s “Final Solution to the Jewish Question” to discover how biddable lawyers are never hard for a powerful state to find.’

Speaking to Solicitors Journal at the report’s launch, the former Old Bailey judge elaborated on his provocative comments by saying: ‘Lawyers become more compliant and pliable with the regimes they find themselves in. Unlike priests, lawyers don’t need to assert goodness. We may need to become a body of activists if we seek to preserve the liberal agenda but find ourselves in a political climate that is not the norm.’

The Temple Garden Chambers silk said that interesting cases, such as ascertaining the rights of Europeans living in the UK and those of British citizens working abroad, would, in the short term, be ‘good for lawyers and their incomes’. However, in the longer term, exclusion from Europe would be to the detriment of British lawyers who would lose out on closer collaboration with their mainland colleagues.

‘Fraternal association with European lawyers,’ said Sir Geoffrey, ‘will not be collaboration of the kind brain surgeons may enjoy – to the benefit of their patients – if they share knowledge, experience, or techniques with neighbouring countries. Sharing of thinking and judgment by European judges since WWI in both the ECtHR and then the EU Court of Justice is very similar and with the same likely benefits.’

Sir Geoffrey, who led the prosecution of Milošević for genocide and crimes against humanity, was an ardent supporter of the UK remaining in the EU and believed that a united Europe would strengthen international law and justice. At a Gresham College debate in May, the former vice-chair of the Bar Standards Board was criticised by Professor Richard Evans for highlighting the risk of violence brought on by the increasingly poisonous public debate over Brexit. Three weeks later, the Labour MP for Batley and Spen, Jo Cox, died after being shot and stabbed in Birstall in West Yorkshire.

Returning to the issue of violence in his article, Sir Geoffrey said Cox’s death can ‘tell us much about what lawyers may face in the new, hard post-Brexit world’. He continued: ‘The parliamentary debate about her death could reasonably have assumed that extravagance of language in the public Brexit debate was itself freeing hate and that those using strong Brexit augmentative language might have been in part responsible for the death.

‘The Jo Cox debate showed us how quickly culture can change and the culture of exclusion without responsibility will be upon us soon. It is in this culture that lawyers who do not choose the dark side will have to show that the rule of law is worth fighting for.’

Closing the BiE policy report launch, the silk admonished politicians for handing the public a ‘sledgehammer that smashed the [Brexit] nut in a thousand ways with unforeseen consequences’ before calling for greater cooperation with the government because ‘we are not going to be able to treat this as a mistake.’

‘[Politicians] remain the profession least trusted by the public, less than estate agents… but they now need our help, they do not need to be savaged,’ he said. ‘One of the real tragedies of where we find ourselves is that if we the public don’t think of some way to help them in their impossible task, and return to the position of being content with our neighbours, then this will be a truly dark passage in this country’s history.’

John van der Luit-Drummond is deputy editor at Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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Sir Geoffrey Nice QC Britain in Europe Brexit Brunel University Ethics