Human-rights lawyer and QC warns of rise in ‘lawfare’

Speaking at the award of the 2021 Sakharov Prize for Freedom of Thought to the Russian activist and political prisoner Alexei Navalny, Irish-born QC Caoilfhionn Gallagher said that this was a very strange time to be an international human-rights lawyer in the United Kingdom.

“I find very difficult when I meet with states holding one of my clients in arbitrary detention, and it is said to me on a regular basis ‘well you're based in London and the UK says it's OK to breach international human-rights law,’” she said.

Undermining rule of law

Such irresponsible language was being used as a “dictator's playbook”, and as a rationale for further undermining of the rule of law and international human-rights standards in those countries, the Doughty Street Chambers barrister said at the discussion entitled ‘Is it Possible to Live an Honest Life Under a Dishonest Political System’ (1 July).

“I am finding it thrown back in my face in relation to cases that I act in, so it does have a real impact – in part because of the UK's leadership role on many of these issues,” she said at the event, hosted by the European Parliament office in Ireland.

Abuse of clients

Gallagher added that she had been “caught in the slipstream of the abuse of clients”, with attempts to hack e-mails, surveillance, and an actual physical attack in her London chambers.

The language used in media coverage about immigration lawyers, and claims that human-rights lawyers ensured that criminals were allowed to remain in Britain, had worsened this, she said.

“When you have people at a very high political level – including, I'm afraid to say, the Home Secretary and the Prime Minister – using language like ‘lefty lawyers’ and ‘irresponsible human-rights lawyers’, this has real-life consequences,” she said.

There was also a growing trend towards anti-Irish rhetoric in Britain, she said, which was linked to irresponsible language used in relation to Brexit.

“It's probably fair to say that it's precisely because of the beacon that the UK has been in relation to international law in many other respects that people are so taken aback by its position,” she said.

The world paid attention to what the UK said on international law, so language such as “breaking international law in a specific and limited way” resonated, she added.

Gallagher, who specialises in human rights and civil liberties, said that she had observed an increase in ‘lawfare’, or the weaponisation of the law against those who spoke truth to power.

Laureates of the Sakharov Prize include journalists, political dissidents, lawyers, civil-society activists, writers, and cartoonists globally.

Spleaking truth to power

“The golden thread which runs through all those individuals is the concept of speaking truth to power, despite very grave risks to them as individuals  – to their safety, their security, their liberty, and often their lives,” Gallagher said.

Gallagher said that Alexei Navalny was very much on her mind when he was arrested at Moscow airport after he returned from Germany, where he spent five months recovering from being poisoned with the nerve agent Novichok.

“He returned to Russia knowing full well what faced him,” she said.

“Russian authorities indeed had broadcast on state TV and via state media for months the fate that would befall him when he returned, apparently in an attempt to scare him off; but scared off he was not, despite knowing precisely what conditions would await him in Russian prisons,” she said.

Russia was no longer satisfied with silencing critics within its borders, but would use nerve agents on foreign soil, she added.

The Portmarnock, Dublin-born QC said that her client Jimmy Lai was languishing in a Hong Kong prison, while also facing a wide range of misuses and abuses of the law in an attempt to silence and gag him.

Lawyers acting for peaceful protesters, or journalists writing about such matters, face certain predictable legal threats under defamation laws, terrorism laws and sedition laws.

Misuse of fraud law 

However, regimes were increasingly misusing fraud laws, copyright laws and intellectual-property laws, or alleging financial mismanagement, as a silencing tool, the barrister said.

Many of Gallagher’s clients were living in non-rule-of-law-compliant regimes, and their lawyers are frightened and targeted simply for the act of defending individuals who were subjected to “lawfare”, she added.

Deeper levels of expertise, in copyright and fraud, were now needed to fight these cases, she said, and there was a more complex story to relay to the international community.

Gallagher also said that she dealt with a long-standing “culture of impunity” in these states, adding that there was an opportunity for Ireland, given its role in the UN Security Council, to show leadership on this topic.

China’s state media recently ran a news story that there was a vast conspiracy to violate its national-security law in Hong Kong, accompanied by a graphic of her client Jimmy Lai, she added.

The leader of the Hong Kong Bar had also left the country following threats after he represented peaceful protesters in Hong Kong, she said.

Worrying development

“This is an extremely worrying development, and it comes against a backdrop of Benedict Rogers from Hong Kong Watch, an NGO based in London, receiving a threat that he'll be extra-territorially prosecuted unless he removes criticism of China from his website in London,” she said.

“It's no longer the case that states as such as Russia and as China and Iran and Saudi Arabia are satisfied with doing what they can to quiet their critics within their borders.

Long arm of state

“The long arm of the state is being used, and it's vital that Ireland, the European Union, and other states, stand up to that and take proactive action to protect individuals from those types of threats.

“Otherwise, I'm afraid it's not only an erosion of the rule of law in those states, but also an erosion of the international order and the international system whereby states can be held to account,” she said.