All modern civilised societies are built on two pillars: democracy and the rule of law. A critical lesson for 2019 is to remind ourselves of the importance of the second of these.
Democracy involves the legislature having to submit itself to regular elections. They engender great interest—politics is inherently headline-catching. But we hear much less about the rule of law: the people ultimately responsible for it, the judges, are not elected, and judging is not a headline-catching exercise.With over 300 years of tranquillity at home, people take the rule of law for granted, and undervalue it. This could prove dangerous, for it is beginning to fray around the edges. Without it, private, public and commercial rights and responsibilities cannot be reliably enforced and society quickly becomes unjust, violent and poor.
It is of fundamental importance that judges are independent and robust, and that their courts are open and accessible.
Being able to see judges trying cases engenders confidence in the courts, essential for the rule of law. Seeing the courts at work dispassionately also provides a useful contrast to the partisanship of democratic politics. Accessibility means that people with grievances and those being sued must get access to legal advice and to courts. It is an affront to justice if people cannot understand or enforce their rights.
Judicial independence is crucial. No one, especially politicians, should have any influence over a judge. But judges should also be independent in a wider sense. Administering the law involves rigour, humanity, common sense, and not giving in to short-term public pressures. So, judges must also be robust in terms of both intelligence and character. If they are not, respect for the law will crumble, as will the UK’s international reputation for legal services, which is vital to our economy.
Recent events have highlighted how these requirements are both vital and under threat.
Extensive reductions in legal aid, especially since 2012, mean that many people must choose between not enforcing their rights (unacceptable) and acting for themselves (unjust). Mitigating steps have been taken, but they have not eliminated the access to justice deficit. The government has also substantially increased court fees—so unreasonably in employment cases that the courts intervened. Especially since the Brexit referendum, there has been much talk of the less well-off feeling alienated: this is one cause.
"Reductions in legal aid leave many people choosing between not enforcing their rights (unacceptable) or representing themselves (unjust)"Just how vital judicial independence is was demonstrated two years ago in the Gina Miller case, when the courts had to decide whether ministers could serve notice to leave the EU without formal parliamentary sanction. This required the judiciary to rule on fundamental constitutional issues—the distribution of power between parliament and ministers, and between parliament and the devolved assemblies. The judges faced unprecedented, sometimes disgraceful, media pressure, and ministers rather shamefully failed to speak up for them. With parliament and the executive under remarkable stress with Brexit, the need for a detached and robust judiciary is especially pressing. (The US Senate Kavanaugh hearings, in marked contrast with Miller, demonstrated very well how politics and judging do not mix; and, goaded as he may have felt, Justice Kavanaugh’s public emotional and party-political statements were the antithesis of our notion of judicial impartiality.)
The Miller case also embodied open justice. Anyone could watch the four-day hearing and then read the judgment on the UK Supreme Court’s website. You could see the judges at work: principled, careful, fair. Maybe rather slow and boring to a non-lawyer, but none the worse for that. Although we must never do anything to unsettle witnesses or juries, the more people that can see the courts in action, the better. Currently, however, only the Supreme Court is filmed.
Other recent emotive and controversial cases, such as that of terminally ill infant Charlie Gard in 2017, have underlined the pressure on judges. And this is at a time when judges’ working conditions are poor, and some have had their pay effectively reduced. Unsurprisingly, but alarmingly, judicial morale is at a low ebb, and relatively few first-class lawyers are applying to be judges, as a result of which there are unfilled vacancies on the high court bench.
The Lord Chief Justice and his colleagues have been pressing these points, but will ministers listen and then act? They should.
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