The government has been accused of undermining the rule of law by putting pressure on an independent regulator in its action against a legal firm pursuing claims of human rights abuses involving British troops in Iraq.
The former deputy leader of the Labour party, Harriet Harman, has called for the release of any emails that would reveal whether the ministries of justice and defence attempted to influence the Solicitors Regulation Authority (SRA) to act against Leigh Day. The human rights firm has been involved in many high-profile cases against British soldiers and has referred a number of them to the controversial Iraq Historic Allegations Team (IHAT), now being wound up.
Earlier this year, the firm, two of its senior partners, Martyn Day and Sapna Malik, and a junior lawyer, were cleared by the Solicitors Disciplinary Tribunal of any wrongdoing over claims they had made against British troops. The MoD said it was disappointed with the verdict which, if it had gone the other way, could have been fatal for the firm.
Now in an extraordinary intervention, Harman has written to the attorney general, Jeremy Wright, claiming that “the government’s pressure on the Solicitors Regulation Authority to take disciplinary action against Martyn Day and Sapna Malik of Leigh Day was an action which undermined the rule of law”.
The SRA’s case against Leigh Day was launched following the Al-Sweady inquiry into claims that British soldiers tortured and murdered Iraqi detainees following the battle of Danny Boy in 2004. It concluded that the allegations were “wholly without foundation” although it did find that nine Iraqi detainees had been mistreated.
Phil Shiner from Public Interest Lawyers, who represented a number of the detainees, was found guilty of 22 charges of misconduct and struck off.
The tribunal hearing the case against Leigh Day was told that 276 pieces of correspondence were exchanged between the MoD and the SRA. In several, defence ministers urged civil servants to contact the SRA to seek updates on the firms’ prosecutions.
Senior officials at the authority replied, and its chief executive, Paul Philip, wrote directly to the defence secretary, Sir Michael Fallon, on at least one occasion. In several emails, SRA employees explained to MoD officials that they were unhappy with the way legal services were being regulated. Dr Ben Sanders, assistant head of responsibilities for public law and historic investigations at the MoD, responded to one: “I am sure ministers here will wish to be supportive.”
The counsel for Leigh Day, Patricia Robertson, suggested to Sanders that the correspondence showed a clear relationship between the SRA and the MoD. Robertson said: “Taking all of that material as a whole what we find here is the SRA using these disciplinary proceedings as a platform for lobbying the government for regulatory reform and also enlisting support from the MoD in that objective. That’s what we see in those exchanges isn’t it?”
Sanders replied: “Yes, I would say that seems a fair characterisation.”
The tribunal ruled that the authority must disclose all its correspondence with the MoD, MoJ, IHAT and the House of Commons defence sub-committee to the relevant parties. But it has not been made public.
Harman has asked the attorney general to publish all the correspondence including any alleged MoJ/SRA emails, which she claims “were wholly inappropriate and designed and perceived to subject the SRA to pressure”.
Before the tribunal, Leigh Day was subjected to fierce criticism in parliament. Fallon said that “the Al-Sweady inquiry was a completely unacceptable attempt to abuse our legal system to falsely impugn our armed forces”.
And David Cameron, then prime minister, declared that “Leigh Day has questions to answer, not least because it was deeply involved in the Al-Sweady inquiry”.
“Having your own government attacking you for doing your job as a lawyer crosses an important line and is something which has the potential for severe consequences for society,” Martyn Day told the Observer this weekend.
“We fully expect the Ministry of Defence to defend claims against it robustly, but there is a line to be drawn when it moves away from the claims and denigrates, in parliament, the lawyers who have been instructed to bring those claims. It would be a very sad day if British lawyers became too scared to take on the UK government, on behalf of individuals in this country and overseas, over issues which are essential to basic human rights.”
In her letter to Wright, Harman said: “It is quite wrong for the government to seek to dictate to the SRA who they should be taking action against. It is invidious for the government to denounce solicitors who are representing claimants who believe that their rights have been violated by the government.”
A MoJ spokesman said: “We fully respect the important and independent role the SRA plays in upholding standards in the legal profession. We are aware of the letter and are investigating further.
“However, early investigations have uncovered no evidence to support these claims.”