As individuals, citizens and as lawyers we have a responsibility to ensure that this is understood and valued. But it is hard to value something that is not understood. Perhaps we occasionally take for granted that people understand how our justice system works, how judges reach decisions and the role advocates play in the process.
I was surprised to read the headlines of some papers on the day after the Art 50 judgment, describing the judiciary as ‘enemies of the people’. The judges do not need the Bar to defend them – they will do their job in accordance with the oath they have taken without fear or favour. We are fortunate indeed that we can say this. During my travels overseas, it has been made clear to me by foreign lawyers and others that it is the professionalism and integrity of our judiciary which is particularly valued. It has contributed to the stability of our democracy and played an essential role in securing the UK’s position in the world as a leading services market. Both the outgoing and incoming Lord Mayor stressed this in their speeches at the Lord Mayor’s banquet in the presence of the Prime Minister and the Lord Chancellor.
But the judiciary and our justice system do need people to speak out publicly in their support. They do not need protection from debate around the constitutional arrangements of the UK, the rights and wrongs of the court’s decision, how we select our judges, or indeed the pros and cons about leaving the EU. I have views, as most of you will do, on these matters. But when it is suggested, among other things, that the judges are the ‘enemies of the people’, a phrase redolent with historic menace, and that deliberately or otherwise they are thwarting the will of the people, we need to speak out. It is not about this particular judgment, which is now on appeal to the Supreme Court. It is about the value and respect we as a society place on the justice system. Without this, much of the benefit of an independent, transparent justice system is lost. Having travelled to countries where people are fighting to establish a viable justice system, it is clear to me that we cannot afford not to stand up for ours.
As a society, and as a profession deeply rooted in advocacy and the courts, we take for granted at our peril the relative stability and adherence to the rule of law in our society. The risk is that we assume that the foundations of our democratic society are so deeply ingrained that they cannot be shaken. Two of the cornerstones of our society are the rule of law and the freedom of the press and of expression. It is perhaps only when they are tested that we, as a society, have to grapple with what these concepts mean in real terms and what, if any, the limits to them are. It is right that they should be tested and that we should debate them – that can only be healthy. But it is also important that as lawyers we engage with society. It is not our job to be popular but it is, I believe, part of our role to engage with and explain to society what we do, why it matters and how we do it. And to remind society from time to time, why an independent judiciary is at the heart of our justice system, and at the heart of how society works.
It is also important that we continue to explain that as barristers we do not identify with our client’s case, or client’s viewpoint, but argue a case to the best of our ability before the courts. That is why the cab rank rule is so important – and relatively unique. The words of The Hon Michael Kirby AC CMG come to mind: ‘Where there is no independent legal profession there can be no independent judiciary, no Rule of Law, no Justice, no Democracy and no Freedom.’
I have always believed in promoting debate and discussion, and also the importance of press freedom. The Bar Council resolution, passed unanimously on 5 November, which called upon the Lord Chancellor to condemn the direct attack on the judiciary and in particular the direct attack on those judges involved in the Art 50 High Court decision, was not an attempt to curb press freedom. There is a clear difference between disagreeing with what someone says, or writes, and preventing them from saying or writing it. The Lord Chancellor wears two hats, one as Lord Chancellor, and one as the Secretary of State for Justice. In the former role, she is not primarily a politician, but fulfils a role that has been described as ‘the conscience of the government’ and includes defending the judiciary.
I grew up believing in debating issues with tolerance and engagement. There must be risk that, in a world where much is pared down to the obligatory 140 characters or less, we lose sight of the virtue in listening, debating and disagreeing. If I am right it means that society will struggle to understand what we do and what judges do, and why it matters.
This is my last column as Chairman of the Bar. I leave, as I started, firm in the belief that we are one Bar, and that we will survive and thrive because of our ability to adapt to changes in society and our commitment to the highest professional standards and to excellence in advocacy. I am delighted that Andrew Langdon QC, the former Leader of the Western Circuit, will be our Chairman next year. We have worked together closely and I am certain he will lead the Bar with distinction. I will be cheering him, and the Bar, from the sidelines.