The value of a strong and independent legal profession

Protecting endangered lawyers and the rule of law: Andrew Walker QC underlines the growing concerns and global initiatives

The entrance to the home of the Paris Bar is dominated by a map of the world.

A spider’s web of lines links all too many countries to short biographical cards that surround it. Each card identifies a lawyer who has suffered from some form of persecution – even death – simply for doing his or her job: defending the rights of others. It is a firm statement of intent by one of the largest Bars in Europe to stand together with our fellow lawyers, wherever they are under threat. It is a stark reminder, too, of how widespread and serious are the threats faced by lawyers in very many parts of the world.

I am reminded of that Parisian map as I reflect on some of our own initiatives as I write this month’s column. The Day of the Endangered Lawyer is a recent idea, designed to draw attention to what seems to be a growing concern. This year, we joined lawyers across Europe in calling on the Egyptian authorities to take a series of steps to uphold the rule of law and to protect lawyers from arrest, detention and prosecution.

I have also signed my first letter of support for lawyers overseas: a practice long honoured by my predecessors. Our focus on this occasion was on lawyers and human rights defenders in Iran, following last year’s 11th Bar Council International Rule of Law Lecture, delivered by 2003 Nobel Peace Prize winner, Dr Shirin Ebadi. These lectures are part of how we show our own Bar’s intention to defend independent lawyers, judges and the rule of law internationally. It is only right we should follow through.

I was joined in both initiatives by Kirsty Brimelow QC, on behalf of the Bar Human Rights Committee, which operates independently of the Bar Council but with our financial support. Unsurprisingly, we share a common purpose in defending the legal profession overseas.

If all this seems rather distant, I would ask you to take just a moment to look close to home. Many Bars within and on the borders of Europe have serious concerns about threats that they and their members already face, both personally and to their independence, and about other threats to the rule of law. I am still digesting sobering presentations in the last 48 hours from Bar associations in Turkey, Poland, Ukraine and Austria, focused on both lawyers and judges.

The primary aim of threats to lawyers is to reduce the strength and independence of legal professions, especially with a view to undermining the rights of their clients, stifling opposition and weakening the rule of law. We cannot stand by and watch this happen.

The experience in Europe has inspired another initiative: the proposal for a European Convention on the Profession of Lawyer. We have thrown our weight behind this, and are lobbying for the necessary government support in the Council of Europe. Such support is far from guaranteed. I regret to say that of the 18 UK members of the Parliamentary Assembly of the Council of Europe, only four voted on the proposal, and only three of them were in favour.

While the main impetus for this may be experience in other countries, we would be foolish to take our own position for granted. To give just one example: the Bar Council has expended considerable time and energy over the last few years in arguing for legal professional privilege to be given explicit protection in a number of Acts passed by our own Parliament, not always successfully. We and others will be pressing for a convention to include protection for legal professional privilege, as well as for the independence of lawyers and their professional bodies. Protection enshrined in an international treaty would be a valuable addition to our armoury.

But if it is challenging to make the case for privilege, the value of an independent legal profession has moved closer to centre stage over the last few months, and may have caught the public’s attention and respect. I have in mind, of course, the role we have played in demanding proper disclosure by the prosecution in criminal cases and, thus, in making sure that only the right prosecutions are pursued and that miscarriages of justice do not happen.

The failings run deep, and are not just matters of disclosure: they often have their origin in the process of investigation itself, even if they are then compounded by unrelenting pressures on the police and the Crown Prosecution Service. The role of an independent legal profession has proved crucial. It is independent lawyers who have identified disclosure failures that threaten a fair trial, and ensured that they are remedied and that either the prosecution is brought to an end or a just and fair trial is achieved.

When I refer to independent lawyers, I do not just mean defence counsel. As we all know (but most of the public do not), lawyers within the CPS, and both prosecution and defence advocates, all owe professional duties which require us to put our duty to the court in the administration of justice above all other duties. Where disclosure failings have been identified by the prosecution, even if belatedly, the importance of that duty is plain to see.

It can be difficult to explain our role and need for independence to a sceptical public, press and politicians, just as it can be difficult to explain the importance of the rule of law; but what is happening to others shows that the need to do so is as pressing as ever. I hope we will all take this opportunity to highlight our duties, and to educate the public about the importance of the rule of law, an independent judiciary, and a strong and independent legal profession. The rule of law depends on it.

Contributor Andrew Walker QC, Chair of the Bar

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Andrew Walker QC

Chair of the Bar