Speaking truth to power

With the election upon us and populist threats to the rule of law, it’s time to speak plainly: UK justice needs a staunch defender and a place at the high table, writes Andrew Langdon QC

This month’s column starts in Poland. 

We have nearly one million Polish nationals living in the UK and, as with any sizeable population anywhere, they too may need the services of criminal and family lawyers. Often this will require bilateral cooperation between jurisdictions. Both the family and criminal Bar have for years worked with our Polish counterparts in meeting the needs of mutual clients, in extradition applications, in divorce settlements and related financial disputes, in child abduction and other cross-border issues involving the care of children.

So over a weekend in the middle of May, barristers from ten different sets of chambers travelled to Warsaw as part of a Bar Council-led delegation and, together with members of the Warsaw Bar Association, we held an inaugural ‘Polish/English Law Day’ discussing bilateral issues of interest. Promoting direct access to the barristers of England and Wales from Polish firms was part of the object of the exercise. How things will or won’t change as a result of exiting the EU was, of course, part of the discussion.

The leaders of the Polish Bar are grappling with serious issues concerning a populist government which is attacking and undermining the independence of the judiciary. The Polish Constitutional Court is in chaos following political appointments that have created infighting. Press attacks upon the judiciary are common, and the ruling party does nothing to discourage it. Instead it threatens the dismissal of all presidents and vice-presidents of common courts and subsequent appointment of new presidents by the executive.

Our colleagues at the Polish Bar have a proud history. Fearlessly many of them advanced the cause of civil liberty during the communist era. The current threats are of course different. ‘But they worry us,’ I was repeatedly told by our hosts, ‘because we, the Polish Bar, lack the long history of stability in the rule of law by independent judges free from political pressure and of a thriving independent Bar, which would prevent any such development in England and Wales.’

Whilst I am proud to hear the compliment, I also feel uneasy. It might seem trite and foolish to suggest that we in the UK could ever face challenges of the sort faced by the judiciary and the Bar in Poland. But when there are echoes in the USA and other liberal democracies of populist leaders attacking or fostering attacks upon judges and lawyers, it seems irresponsible to believe that we are immune. If there was a prophylactic available to guard against the spread of the disease, now might be a good time to reach for a booster dose. There is, after all, within every jurisdiction including ours, the same viral capacity for dissemination of misinformation in order to agitate the disaffected, with alarmingly swift consequences that leave establishment stalwarts bewildered.

Just as we need constantly to stay ahead of variants of cybercrime, so too do we need to be vigilant and proactive to ensure that the immunity of the rule of law prevails at home. Is this unnecessarily alarmist? Just a couple of years ago, very few of us would have regarded as credible any forecast of the simultaneous threats to the independence of the judiciary experienced by several western democracies in the last 12 months. Are we simply going to proceed as before, on the basis that we are immune? Or would it be wise to reinforce our defences?

In my time as Chairman of the Bar, we have, in the face of Brexit, tried to focus the minds of those who need to understand on the financial value of the Legal Services Industry to the economy. We have tried to focus on the social consequences of deterring access to justice by those who have not the means to pay. We are trying to bring attention to vulnerable citizens like those we routinely detain in immigration detention centres, whom the evidence shows are victims of poor decisions by those in authority at a frequency that the rest of us ought to consider unacceptable.

All these things matter very much, but next to the fundamental freedom that we all enjoy because neither the executive nor the legislature may bully the judiciary, they are secondary. If the first duty of a government is defence of the realm, perhaps the first duty of lawyers is defence of the rule of law.

A general election is upon us. This ought to be an opportunity for us to express, through our vote, our preference for those representatives who are determined, whatever other priorities they have, to protect our liberty within the framework of our constitution. That includes attending to the fundamentals of a justice system to deliver a fairer society. It will not be achieved by carrying on as before. The fact is that our judiciary is unhappy, and the delivery of justice feels undervalued and underfunded by government. It is also the fact that vulnerable sectors of society have been disempowered by a succession of measures that remove their ability to seek redress in law. Forever ignoring these two growing problems will ultimately undermine the robustness of our constitution.

We need political leaders in our next government who champion investment in justice, who have real vision of how to bring the vulnerable back into the fold. In the Bar Council’s Manifesto for Justice, we provide some stimulus for the vision required (see 'Value of justice', Counsel, June 2017).

In the streets of Warsaw I came across a band of protesters, each bearing a large placard with a giant letter, collectively spelling ‘KTO OBRONI KONSTYTUCJE?’ (‘Who defends the constitution?’).

In the face of any populist threat to the rule of law, it’s a good question. The political opposition is enfeebled and disunited. Judges are limited in what they can say. But the Bar can and does speak truth to power. We have a duty not to overstate the problem, or to scaremonger. But we also have a duty to speak plainly: and it is time that the Ministry of Justice lived up to its name and its responsibility. Justice needs a place at the High Table. It needs to be led by a Lord Chancellor invested with the responsibility and funds to get the job done. When asked on these shores: ‘Who defends the constitution?’ we need to be able to say with complete confidence: ‘The Lord Chancellor.’

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Andrew Langdon QC

Andrew was Chair of the Bar for 2017. He was Called to the Bar in 1986 and took Silk in 2006. He has sat as a Recorder since 2002, and became a Bencher of Middle Temple in 2014. From October 2013 until the end of 2015 he was Leader of the Western Circuit.