by Chantal-Aimée Doerries QC
John F Kennedy said: “Liberty without learning is always in peril and learning without liberty is always in vain.” I don’t agree entirely. Learning is always valuable, but I do agree that liberty is at risk, or in peril, without learning. As individuals, citizens and as lawyers, we have a responsibility to ensure that there is an awareness of, and appreciation for, the justice system in the UK. It is not easy to value something that is not understood.
As lawyers we occasionally take for granted that people understand how our justice system works, how judges reach their decisions, and the role advocates play in the process. Our justice system is not perfect, but it is among the best, and as a society we run the risk of taking for granted that it will continue to function.
We are fortunate: our judges will do what we ask of them, deciding cases brought to the courts, based on the law, without fear or favour. The judiciary and our justice system does not need protection from healthy debate on issues such as the UK’s constitutional arrangements, the rights and wrongs of the court’s decision on Art 50, how we select our judges, or indeed the pros and cons about leaving the EU. We all have, and are entitled to have, views on these matters.
Headlines that judges are the “enemies of the people”, a phrase redolent with historic menace, or that the judges are thwarting the will of the people should worry us. If society does not value and respect the justice system, including the judges and their judgments, much of the benefit of an independent, transparent justice system is lost. Having seen countries where people are fighting to establish a viable justice system, we cannot afford not to stand up for ours.
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 the foundations of our democratic society are so deeply ingrained that they cannot be disturbed. Two cornerstones of our society are the rule of law and the freedom of the press and of expression. When they are tested 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 we should debate them—that is healthy. But it is also important that as lawyers we engage with society and remind society why an independent judiciary is at the heart of our justice system, and at the heart of how society works. We will not be popular, but that is not our role in society. It is part of our role to explain what we do, why it matters and how we do it. The words of the Hon Michael Kirby 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.”
The Bar Council supports debate and discussion, and the importance of press freedom. Together with the National Union of Journalists and the Law Society we ran the Speak in Safety campaign earlier this year, lobbying for amendments to the Investigatory Powers Bill to protect the safety and confidentiality of sources and whistleblowers, and of individuals seeking legal representation. Earlier this year we hosted a debate on the referendum with senior politicians supported both sides.
The Bar Council resolution, passed unanimously on 5 November, called upon the Lord Chancellor to condemn the direct attacks on the judiciary, in particular the direct attacks on those judges involved in the Art 50 High Court decision. The Lord Chancellor wears two hats, one as Lord Chancellor, and one as the Secretary of State for Justice. The role of Lord Chancellor, in contrast to the role of Secretary of State, is not a party political role. Instead the Lord Chancellor fulfils a role that has been described as “the conscience of the government”. Importantly, this role includes defending the independence of the judiciary.
Some have suggested that in asking the Lord Chancellor to deplore the tone and nature of some of the commentary on the decision, the Bar Council was asking the Lord Chancellor in some way to attack the freedom of the press. This is simply wrong. It was not an attempt to curb press freedom. There is a difference between disagreeing with what someone says, or writes, and preventing them from saying, or writing it.
We should debate the issues of the day, but we should do so with tolerance and engagement. Otherwise we risk losing sight of the virtues of listening, debating and disagreeing. Without education, society will struggle to understand what we do and what judges do, and why it matters.
Chantal-Aimée Doerries QC is Chairman of the Bar. An edited version of this article first appeared in Counsel magazine.