The Rule of Law: Where are we now?

Following a first event entitled ”Rule of Law and Access to Justice: where do we go from here?” held in November 2020 (and summarised here), the Pro Bono Week Committee and LexisNexis gathered with their panellists to reflect on developments related to the Rule of Law. The panellists shared their thoughts on how threats have changed, while continuing their discussion on how to enhance public appreciation of the Rule of Law.

The panel included Lady Hale, former President of the UK Supreme Court; Baroness Helena Kennedy QC, Director of the IBA Human Rights Institute; Stephanie Boyce, President of the Law Society of England & Wales; James Harper, Executive Sponsor of Rule of Law and CSR at LexisNexis UK; and Iain Anderson, Executive Chairman of the Cicero Group, and was chaired by freelance legal journalist and barrister Catherine Baksi.

What has changed since November 2020?

Before handing over to the panellists, Baksi shared her concern that the respect of the Rule of Law had deteriorated since the previous event was held. Among her examples, she mentioned the backlog of cases in the courts, with some hearings listed for 2023, the historic miscarriage of justice following the Post Office scandal (39 convictions quashed by the Court of Appeal), several allegations of intimidation among the judiciary, and threats occurring around the world including the national security law in Hong Kong.

Current threats

Emergency powers becoming the new norm

During the previous event, Lady Hale identified the complexity of the law and the use of the global health crisis to introduce important changes without proper parliamentary scrutiny. This time, she pointed to the fact that extra police powers introduced by the government as part of a response to the coronavirus (COVID-19) pandemic were “still with us”. According to her, the reliance on emergency powers by the government was “habit-forming”. Kennedy added that the pandemic had also been used as an excuse for many governments across the globe to “restrict citizens’ rights” by enacting various laws without proper parliamentary scrutiny.

Limiting/reform judicial review

The proposed reform to judicial review in England and Wales was also reiterated by several panellists. Lady Hale argued that governments always wanted to limit judicial review, evoking a wish to govern and achieve their policies without any obstruction from the judiciary. She added that independent judges decided “the course of a case in accordance with their judicial oaths” and if they began to be blamed for their judicial review decisions, that was a real threat to the Rule of Law. In reference to the Supreme Court in the prorogation case, ([2019] UKSC 41), Kennedy mentioned that judges “did the right thing in being committed to the rule of law”. Boyce also pointed out to the fact that the government “should act with caution” with its reform of judicial review as the independent review published in March 2021 rejected several propositions from the government.

Criminal justice system

Boyce reiterated what her predecessor, David Greene, had highlighted during the first event regarding issues within the criminal justice system. According to Boyce, the failure to increase legal aid for three decades has deterred young practitioners from joining the criminal defence profession, and left people accused of serious crimes to potentially “be denied fair trial and become victims of miscarriage of justice”. She also highlighted that recent statistics had shown that 38-40% of legal aid firms had simply disappeared in the past decade and that unless action was quickly taken by the government, “the criminal defence system and the Rule of Law could collapse”.

Economic Recovery

Baksi asked Harper for the corporate take on these challenges and how they would impact businesses in the UK. Pointing to the LexisNexis Rule of Law Impact Tracker, Harper noted that there is a correlation between economic prosperity and the Rule of Law, saying “where the Rule of Law is protected, GDP per capita is higher, and where it is not, it is lower”. If we are to recover from the economic impact of the pandemic, Harper argued that building back with the Rule of Law front of mind would be critical.

Involving the public

The other half of the discussions focussed on solutions to raise public awareness. From the various points raised, four will be shared here, namely having a pragmatic approach of the Rule of Law, ensuring education of the system of justice from the earliest age, furthering inclusion, and mainstreaming the conversation.

Pragmatic approach

Anderson argued that in order to bring public attention to the necessity of upholding the Rule of Law, it had to first “resonate” with them. He notably used the examples of the Hillsborough disaster where families could easily identify themselves with the people involved. He also mentioned the recent Supreme Court decision in the Uber case ([2021] UKSC 5) a good example, being “relevant to so many people”.

Education

Lady Hale and Kennedy both reiterated the importance of education. According to Lady Hale, it is important for members of the legal profession to go into schools and to explain what the law is and what it could be to pupils. She highlighted that “most people think about the law as doing things to them instead of for them”.

It has also been noted that education of the legal system should also be undertaken for politicians and the general population. Boyce pointed out that there was a wrong perception of the legal profession which could “lead to damaging the trust of the public” by assuming that lawyers and judges are personally involved in the cases they defend or hear. Boyce added that “lawyers are being the mouthpiece of their clients, (…) enabling individuals to access and exercise their rights”.

Harper recalled the definition of the Rule of Law which includes the presence of an independent judiciary, meaning that the judicial decisions should not, as a course of action, support businesses, or the government, but instead should be based solely on respect for the law.

Furthering inclusion

Through the discussions, several ideas could be associated to furthering inclusion. On the topic of local justice, Lady Hale declared that “we have already lost a lot of local justice” and that it was through local justice in minor cases that the legal profession would keep people’s confidence.

When questioned about the efficacy of virtual hearings when local justice is under threat, Kennedy replied that virtual hearings should not be used for trial courts as it undermined the assessment of credibility or truthfulness. Lady Hale suggested the use of mobile courts – a “caravan court” where the judiciary could travel from town to town.

Regarding the shrinking of the judiciary, as well as a lack of diversity, Harper highlighted the impact this lack of diversity could have. He pointed to the fact that understanding the person in front of you, their life circumstances, and their motivations enabled just and reasonable determination of matters. He also highlighted the study conducted by Cheryl Thomas, Professor of Judicial Studies at the University College London (UCL), which found that the only stage within the judicial system where members of the BAME communities were not disproportionately treated differently was during jury trials – this in light of proposals to limit the size of juries or remove them altogether in some cases. Lady Hale added that all sorts of diversity factors were important including gender, ethnicity, but also professional and socio-economic backgrounds. She mentioned that it was more important to have diversity among trial judiciary than at the top as “for most people what matters is trial judiciary”.

Mainstream the conversation

Finally, Anderson argued that it was important to “mainstream the conversation” and to describe the importance of the law with concrete examples such as divorce, child custody, neighbourhood disturbances, crimes, etc. Harper acknowledged that lawyers had to be more vocal about the importance of the Rule of Law and to have these discussions outside of the legal community. He suggested bringing people from other industries within the legal circle, simply branded as “adopt a non-lawyer”.

A full recording of the event can be found here.