Separation of powers matters

The need for a strong and independent judiciary has never been more vital


‘We need to know more about these people.’ Not the words of a policeman when referring to possible terrorists, but the recent words of a very senior British politician, when referring to our Supreme Court Justices. Once again we have seen far too many of our senior politicians show an incredible lack of understanding of the doctrine of and importance of the separation of powers in this country. The need for a strong and independent judiciary has never been more vital. We have seen far too often in history what happens when powerful politicians override or ignore the judiciary or appoint ‘yes-men’ as judges. It is still happening in countries not far from ours at the present time. The rise of populism across Europe and the removal of some senior judges in countries close to home should be sending warning signals to those in power here.

Instead, we hear calls for judges to be ‘more accountable’ and the spectre raises its head once again of the possibility of US-style judicial confirmation hearings. Our politicians dress their remarks up with comments such as ‘more people are beginning to ask, with some legitimacy, whether it might be time to hold hearings as they do in America’ or ‘many people are saying that judges are biased, that judges are getting involved in politics... I’m just saying what people are saying’, giving the impression that they are merely repeating what others have already said, whilst hiding behind a bland ‘I think they are impartial’ or words to that effect. Sadly, this is not good enough from our politicians, who should know better. If they do not appreciate that these comments have the potential for undermining the rule of law and damaging the standing of our judiciary then they do not deserve to be in positions of responsibility. They well know that their bland words will not be picked up by the headline writers, who will concentrate on the inflammatory lines. Bland words do not sell newspapers or make good copy, but chasing headlines at the expense of something as important as the rule of law is poor form to say the least. Our current Lord Chancellor, Robert Buckland QC MP, has been very quick to defend the judiciary, as has David Gauke MP, his immediate predecessor, a stance which is to be commended and is in stark contrast to some of their less than illustrious recent predecessors. When Robert was Solicitor General he was very keen on championing the education of the public about the rule of law and all things legal. Maybe the time has come for him to try to educate some of his fellow politicians.

On 1 October, I together with Simon Davis, President of the Law Society, hosted Bar Leaders from across the globe at the Opening of the Legal Year ceremonies. The day started with breakfast at Gray’s Inn and it was a fabulous spectacle when all of the Bar Leaders, many in their robes, assembled for the photograph on the steps to the Benchers’ entrance. We then travelled to Westminster Abbey for the Legal Service before processing across to the Lord Chancellor’s breakfast at Westminster Hall. Simon and I then co-hosted a seminar for the Bar Leaders in the House of Lords. In the evening there was a reception held by the American Bar Association at the Middle Temple and then dinner at the Law Society for the International Bar Leaders and other guests. During the course of the day, we signed a Memorandum of Understanding with the Belgian Bars to try to protect the position of our practitioners in the event of a no-deal (or deal which pays no attention to legal services) Brexit. I hope that it is the first of many with our European counterparts. Both the Law Society and the Bar Council have been working hard to protect rights of audience, enforceability of judgments, the European Arrest Warrant, and so much more in the event of a no-deal and we will continue to do so. We have also travelled widely with the intention of opening-up or developing new legal markets.

This year I have spoken at many events across the globe about the importance of the rule of law. There was a time when almost without exception, foreign countries looked to the UK as a champion of the rule of law. There have, though, been occasions in recent months when addressing gatherings around the world that I have had the uncomfortable feeling that perhaps it is they who should be lecturing us about the rule of law. I very much hope that this is just a fleeting moment and that the combined efforts of our Law Officers and others will ensure that ‘normal service’ is swiftly resumed and that the UK is once again viewed as the leading jurisdiction where the rule of law reigns supreme.

Finally, I would like to take this opportunity to thank Mark Hatcher, who has retired from the Bar Council after 13 years of devoted service. He came as Director in 2006, but having had his calling to the cloth, when he was ordained in 2012 his role changed to Special Adviser to the Chair of the Bar. He has served under 13 Chairs and he will be greatly missed. His wise words, eye for detail and unparalleled knowledge of all things and people related to the Bar will be sorely missed. He will not, though, be entirely lost to the Bar. He is a Bencher of the Middle Temple and will continue in the role of Reader of the Temple, at the Temple Church, where together with the Reverend and Valiant Master, Robin Griffith-Jones, they minister to the needs of members of the Bar, that not even the devoted team at the Bar Council can help with. We wish him and his wife, Clare all the best.

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Richard Atkins QC

Richard Atkins QC, Chair of the Bar