Making the powerful answerable to law

Once we agreed that nobody should be above the law, there was a problem over who gets to decide whether there has been a breach of law, especially when it might have been by someone very powerful, like a king, a president, a prime minister or a minister of State. The idea that there should be an independent judiciary separate from the State is a vital element in the rule of law – a judiciary that is beyond reproach, that is independent and that makes decisions without fear or favour.

That element of independence is the real measure of whether the rule of law is operating in a country. There are places that insist that they are operating the rule of law, but when you look closer, you see that the judiciary is not independent, that there aren’t independent lawyers and a legal profession that will stand up on behalf of those who are critics of the State or of the government, journalists who expose corruption or whatever. An independent legal profession is another element absolutely essential to the rule of law.

The judiciary should be well enough paid that they’re not going to be corrupted by offers of money to make a decision one way or the other; offers not just from the State but from interests within a State, for example very wealthy business people or the mafia. The business of corrupting judges is one of the things that always has to be addressed.

It’s important that judges are appointed in independent ways. It took a bit of arguing for, here in the United Kingdom, but we have the Judicial Appointments Commission now. Before that, it was the Lord Chancellor who ultimately made the appointments to our highest courts. You really do need an independent appointments method to find some mechanism for choosing those who have integrity, those who have little reason to be corrupted, those who are not parti pris and who have become experienced in the business of independent decision-making, and this usually involves proper training processes.

Now, in the common law system, the judiciary is usually appointed from the practitioner lawyers. In Canada and in Australia, the appointments processes draw upon practitioner lawyers who’ve had lots of experience in the court and then move them into higher judicial offices, while giving them proper training and opportunities to help to develop their skills as judges. In other systems, like the civil law system, people can study law and then decide to do the training to become a judge when they’re in their late 20s. They then start at a lower level than the judiciary and work their way up through the system.

The important thing for lawyers is that they mustn’t feel that they’re simply there as a hired gun. There are certain rules of professionalism – you don’t invent defences for people. When someone says to you, I’m guilty but I’m going to tell lies and pretend that I’m not guilty, you have a duty in law and a duty as a professional lawyer and barrister to say, I’m not able to act for you because to do so would be to be complicit in dishonesty. There is a whole set of rules about how you function as a lawyer. The integrity of lawyers has to revolve around the idea of a first principle that you are a protector and safeguard of the law and of the independence of our legal system.

One of the things that we’ve been debating in the United Kingdom recently has been the limits of one’s role as a lawyer outside of one’s own nation. We operate something called the cab rank principle, and that is one of the things that helps people understand the importance of the independence of lawyers.

In my years of practice, I’ve done many cases which have been abhorrent to the general public. I’ve acted in cases involving allegations of terrorism, where explosions have taken place or where there have been conspiracies to cause explosions, where my clients have been hated for the organisations that they belong to. I’ve acted for people who’ve been accused of murder or a violation of other human beings. All of that could very easily make you someone that the general public thinks of as a terrible person. But, of course, the answer to that is that, as lawyers, we’re actually protecting the system and acting for whoever we’re asked to act for, if we’re available and if we have the expertise in that field of law, and we do it on the basis that it’s protecting the system.

We call this the Erskine Principle. In the 18th century, Tom Paine, who was a great champion of human rights, wrote a pamphlet called Rights of Man. He was brought before the courts for sedition, for championing something that was going to bring down the State, and he fled to France, where a revolution was in the offing because people wanted rights. He was put on trial in his absence and a very distinguished lawyer called Erskine stepped forward and represented him. Erskine was excoriated for doing so by his political confederates, who would be considered very conservative people today. He said, no, I am doing this because we have to make sure that people with whom we don’t agree are properly represented in the courts and defended, and that freedom of speech is protected, because that is what makes for a decent society.