Speaking to an audience of lawyers, judges and students at the Malaysian Bar Council on Monday 25 May, the President of the Law Society of England and Wales, Andrew Caplen, explained how the principles that the Magna Carta enshrined are as valuable and relevant as ever. He discussed the challenges to the rule of law, both in England and Wales and internationally, as well as the vital role that the legal profession has in ensuring it’s continued existence. Read the full speech below. 

The Rule of Law: A Challenged Tradition

Section 1 – Introduction

Good evening everyone. Thank you so much for that introduction. And also for giving me the opportunity to address you today.

Next month, on the 10th of June, we will be celebrating in England the 800th anniversary of the sealing of the Magna Carta. A document that is widely regarded as being the foundation of the rule of law in our country. And also one that has influenced many other constitutional thinkers throughout the world.

As we move ever closer to that date, and as preparations to commemorate our commitment to the rule of law are being finalised, It is surely very appropriate for us to pause and consider the state of the rule of law both in our own jurisdiction and abroad. And also to consider what challenges exist today to that fundamental principle.

Further - and even more crucially - why it is so absolutely vital that the global legal profession remains alert to both recognising and fulfilling its public interest role of safeguarding the rule of law? Especially during sometimes difficult times?

Section 2 – The Magna Carta

Firstly, a short historical background.

Eight centuries ago, the English King – King John  – had brought the English throne into debt and disrepute. Particularly following an unsuccessful war against France. His barbarity, extortionate taxes and preference for ruling under the principle of vis et voluntas – or arbitrary “force and will” – had resulted in great discontent.

In the winter of 1214, rebellious Barons led by Robert Fitz-Walter demanded that the King restore their rights and privileges. King John’s response was negative and on 12 May 1215 he ordered that their entire estates be seized.

On 17 May 2015, the Barons reacted by marching on London, which welcomed the rebels and opened its gates in defiance to the King. Once King John had lost London, he sensed that perhaps it was time to compromise.

And that compromise was the Magna Carta. Also known as the Great Charter.

The two camps met at a place called Runneymede, a few miles west of London. Chosen because it’s boggy ground made open combat almost impossible.

The Barons made their demands – sixty three in total. King John did listen. He had little option to do otherwise!

Most of their demands only make sense in the context of their time. But some have proven to resonate across the ages. 

Most famously – a guarantee to all free men that they would be protected from illegal imprisonment and seizure of property. That there would be access to swift justice and Parliamentary assent for taxation. And further limitations as agreed by a new “Common Council” of the realm. An early form of Parliament.

King John agreed. He had no choice. In doing so, he was the first King to bow before the supremacy of law.

Lord Denning, a previous Master of the Rolls, referred to the Magna Carta as  “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”

Because, although the Magna Carta may have been written eight centuries ago, it’s words still serve to inspire people throughout the world. Reminding all of us that the rule of law is the foundation of any truly democratic society.

Some of the clauses in the Magna Carta remain in force in the United Kingdom today.

Clause 39 for example –

“No freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man, either Justice or Right.”

And Clause 40  –

“To no one will we sell, deny, or delay right or justice”.

The Magna Carta was a watershed moment in English law.

It cemented the idea that the law of the land should reign supreme, not the state. Once this concept was given credence, it proved impossible to revoke. That is why the Magna Carta is regarded as being the foundation of the rule of law.

Rudyard Kipling, a famous English novelist and poet wrote this:-

“And still, when the mob or monarch lays

Too rude a hand on English ways,

A whisper wakes, the shudder plays

Across the reeds at Runneymede”

Section 3 – “Rule of Law”

This leads to a broader point. How exactly should we define the rule of law? Is it a concept often mentioned but rarely defined? 

And is the prerequisite to it’s adherence as simple as a state needing to bind itself to the laws it creates? Promising not to exercise power it has not at some point previously already afforded to itself?

No.

That would just limit the rule of law to something I would term ‘rule by law’. Where all a state must do is legislate it’s future intents into the Statute books before it acts.

History - as well as current events in some countries across the world - clearly show that this offers little or no credible safeguard. Because it is entirely possible that legitimately made laws may have entirely illegitimate intents. I will speak further about this later.

Law and Justice should not necessarily be taken as synonyms. Which is why many countries insist that there should be both an independent judiciary and an independent legal profession. And that the process for judicial review of state actions, together with subscription to the jurisdiction of international courts, is regarded as being so important.

The late Lord Thomas Bingham is considered to be one of our leading jurists. He

encapsulated the rule of law into eight principles. Each serves as a caveat to the next. No one principle can be isolated and said to taken as the entire rule of law itself. The State and the Judicial sector, therefore, have to subscribe to all. Excluding none.

In no particular order, Bingham’s principles are these:-

 That the State must abide to both domestic and international law. So that no Government has the ability to act by whim.

 2. The second is closely related; that people should only be punished for crimes set out by law.

3. The third; questions on the infringement of rights should be subject to the application of law, not discretion. In essence, it the courts should interpret the law.

4. Four; that the law should be accessible, clear, precise and open to public scrutiny. This is to protect people from “illegitimate laws” – that is where a state uses it’s power to enforce laws to the detriment of it’s own citizenry.

5. Five; all people should be treated equally.

6. Six; there must be respect for human rights.

7. The seventh and eighth are particularly interesting because they extend beyond the creation of law or who it protects. Rather, they relate to a state’s responsibility to ensure adequate access to justice. They are –

That courts must be accessible, affordable and cases should be heard without excessive delay. You might recall some similar wording in clause 40 of the Magna Carta, mentioned earlier.

And finally; that means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties themselves are unable to resolve.

Section 4 – “Access to Justice”

These last two points invoke an important debate which I would like to reflect upon for the next few minutes. A debate which I personally believe many jurisdictions around the world – England and Wales most certainly included – may need to consider or revisit. And that is the question of access to justice. 

In order for the rule of law to work effectively, citizens must have a realistic ability to enforce their rights, to have their cases heard. To access justice. Without access to justice, the rule of law is nothing more than a concept, an ideal. Because, what use is it being told that you have a right if you have no way of putting that right into force?

An example; a disparity between what the rule of law promises citizens and what they can realistically enforce can arise when the costs of taking a case to court are too high. For example, where a welfare recipient has his or her State benefits reduced or are told that they are no longer eligible. That recipient should – and does – have the right to appeal. To challenge the decision that has been made.

However, if the costs of that appeal are unaffordable  –  because, for example, financial assistance is not available  – then the result will be that the State’s decision cannot be challenged.

This is why in the United Kingdom one of the most important ways in which our jurisdiction has been able to assist victims of injustice is through our system of Government funded legal advice  and assistance. A system known as Legal aid.

Legal Aid in the United Kingdom was a fundamental part of the post Second World War welfare reforms. The wider reforms stemmed from something called the Beveridge Report, which sought to consider how to improve the State’s existing national schemes of “Social Insurance”. That is, safety nets designed to ensure everybody had access to the basic rights of citizenship.

In the 1948 House of Commons debate on the Legal Aid and Advice Bill, the then Attorney-General, Sir Hartley Shawcross, opened by saying:

 “This is a bill which will open the doors of the courts freely to all persons who may wish to avail themselves of British justice, without regard to the question of their wealth or ability to pay.”

In other words, the UK Government had accepted that it’s responsibility was not just as a law maker, but also the enabler of putting those laws into practice. A noble aspiration. And one which was largely achieved for a generation.

However, things have changed.

Successive UK Governments have shown signs of avoiding their responsibility. They have regarded Legal Aid as just another item of public expenditure. And a less important one at that. With the result that full access to justice is currently at risk in England and Wales. 

Some statistics; when the Legal Aid and Advice Act was passed in 1949, 80% of the population was eligible for some measure of advice and assistance. By 2008, that had fallen to just 30%.

Following the economic crash in 2008, almost every UK Central Government department had it’s budget decimated in the name of austerity. Justice was no exception. Then our Government determined to cut Civil Legal Aid still further. The result being the Legal Aid Sentencing and Punishment of Offenders Act 2012.

We at the Law Society campaigned vigorously against these cuts. Or, at the very least, that alternative means of accessing justice should be provided. But despite our best efforts, and those of many other organisations, these changes came into force on 1st April 2013.

The result; at least 300,000 people each year who would have previously benefited from Legal Aid advice and assistance, no longer qualify to do so.

The UK is not,of course, the only country to suffer from austerity. Many others face similar difficulties. But this is a tragedy for our system of justice. My hope is that those who have travelled down this path, reverse immediately. And that those who have not, never follow the same course.

Access to justice is not a goal or an end, it is a vital precondition. When access to justice is diminished, than so too is the rule of law.

Section 5 - Anti-Terrorism

There are a number of other modern challenges to the rule of law.

One is the threat of terrorism. Or, more correctly, how a country responds to the threat of terrorism.

Modern times have ushered in a different type of warfare. Previously, warfare was primarily between two States or, at the very least, constrained within geographical borders. However, the fight against terrorism more closely resembles a conflict between States and international networks.

The rise of the terror network, often spread by new methods of online communication, has made defending ourselves much more difficult. Radicalised individuals across the world can now conspire together remotely. Meetings between them are kept to a minimum, if they take place at all.

The pressure on our security services is immense because the threat is much less predictable. It does not abide to international conventions. it has infiltrated society - “the enemy lurks within”, so to speak. In response, Governments and security services around the world have had to become more “introverted” as they are forced to suspect their own populations.

Fear breeds repression and this can result in the curtailment of civil liberties.

During these difficult times, it is absolutely vital that Governments AND the legal profession work together to openly debate and carefully balance questions of national security with those relating to civil liberties. Because even if we do not see the need to exercise the liberties surrendered in the present, we cannot be sure that we will not need to look to them at some point in the future.

The “war on terror” – as it has become known – poses two core challenges for the rule of law:-

  •  Firstly, the risk that laws that are passed to deal with the immediate situation are disproportionate. That is, they are too harsh, too intrusive.
  •  Secondly, that laws which are stated to be made with the intention of preventing terrorism are not then used for different purposes.

I propose discussing both of these and will explain a little about the situation in England and Wales.

Section 6 – “Mass Surveillance”

The issue of mass surveillance is an important one in the UK at present.

There is of course a question as to whether any system of mass surveillance is proportionate in itself. Can it result in an unofficial society control mechanism, forcing people to think twice about what they say or who they criticise because of a feeling – whether justified or not – that the proverbial “big brother” is watching over their shoulder?

It is an incredibly important topic. I would, however, like to narrow my focus slightly today – to the principle of Legal Professional Privilege. Which some of you may know as Professional Secrecy  A topic which the Law Society considers a campaigning priority.

It has to be right for an individual to be able to consult with a legal adviser in confidence. Without having either their communications tapped or fearing that they might be. This is fundamental to the right to a fair trial

In England we have held this principle sacred for centuries.

The first recorded instance in our case-law dates back to 1577 when a lawyer, Thomas Hawty, was ordered to testify in his own client’s case. He protested and the Master of the Rolls – the chief civil judge in England – declared that Hawty should not be compelled to disclose the relevant information. The reason behind this decision? The Master of the Rolls said that this principle was not about professional conduct – but rather the proper administration of justice.

However, the UK Parliament recently passed The Data Retention and Investigatory Powers Act - or DRIP.

In effect, DRIP overrules a recent judgment of the European Court of Human Rights. It re-asserts sweeping surveillance powers that had been deemed to be in breach including, potentially, in the area of Legal Professional Privilege. It also extends our Government’s powers to allow for extra-territorial reach. They can now force non-UK companies, such as Microsoft and Facebook, to retain information on UK users.

You would have hoped that, given the importance and far-reaching implications of this Act, that it would have been subject to at least the standard level of Parliamentary scrutiny. Unfortunately, this was not the case. DRIP was rushed through Parliament as emergency legislation. Only three months after the Court’s judgement. The Parliamentary process took just three days – without the flaws that had previously been expounded being properly addressed.

Needless to say, the Law Society has very serious concerns. We still do not know what justified the use of emergency legislation. A cynic might argue that the process utilised was in order to prevent proper Parliamentary and public scrutiny.

Without any assurances that professional secrecy will be adhered to, should we assume the worst?

Section 7 – Misuse of Law

The second issue is the risk that laws which are passed to prevent terrorist activities are then used for purposes which were not initially made clear.

An example; in 1993 a young black teenager by the name of Stephen Lawrence was murdered by a racist gang in South London, England.

For well over a decade, nobody was charged. And for years, his family– led by his mother – campaigned for justice. They called for the police to properly investigate Stephen’s murder.

Only recently has it been discovered that Stephen’s mother, as well as key supporters, were subject to undercover police surveillance. Not because the police were suspicious that a serious crime had been committed. Or that there was a threat to national security. The suggestion is that the surveillance was taking place in an attempt to smear the Lawrence family, with the aim of ending a campaign which could potentially discredit the way in which the police had dealt with the investigation.

Another example; in 2005, an 82 year old man disrupted a speech on the Iraq war that was being given by our then Foreign Secretary, Jack Straw. His protest consisted solely of him shouting the single word “nonsense!” when the Foreign Secretary sought to justify the British Government’s involvement.

He was removed from the conference room. The story made our National news. Many were outraged that such an elderly man should be treated in such a way. But more bizarrely still, he was detained – albeit briefly – under anti-terrorism legislation! And it was also used to prevent him from re-entering the conference.

I imagine the legislation was used simply because it could be. The powers existed and it was more convenient to use them than not to.

But that is dangerous. To free speech. And to the rule of law. Which is why it is so important that legal professions across the world remain vigilant. That we scrutinise proposed legislation, the actions of our governments. To ensure that legal boundaries are respected and also that the laws themselves are appropriate and proportionate.

This brings me to my next topic. What do I consider to be the role of Law Societies, Bar Associations, in this respect? In a properly functioning democracy?

Section 8 – “Role of the Bar Association”

Professional associations of lawyers do, of course, have a clear primary function. We represent, and many of us also regulate, our membership. And we are responsible for upholding professional standards and ethics and protecting our members from improper restrictions and infringements.

However, we also surely have a broader role. A duty to work in the public interest that includes utilising our knowledge and expertise to warn and safeguard wider society from what we believe might be harmful changes in legislation.

The Law Society in England and Wales regards this role to be one of great importance. Some examples - our National Access to Justice campaign, launched in September last year. The work we have been doing in respect of mass surveillance and the protection of Legal Professional Privilege.

Further, as I am sure you are already aware, a General Election was held in the UK three weeks ago. The Conservatives were returned to government, but without the need for a coalition partner. One of their pre-election pledges was the replacement of our Human Rights Act with a British Bill of Rights.

Our Human Rights Act was passed in 1998. It’s purpose was to entrench into UK law the European Convention of Human Rights. The reason given for its proposed repeal is that our Government considers the European Court is passing judgments which interfere with their ability to make and implement law which they believe our electorate want.

Just one example. There has been a dispute between the European Court and the United Kingdom Government regarding voting rights for prisoners. Our Government does not consider that prisoners should have the right to vote, notwithstanding a decision of the Court which granted them the ability to do so.

Critics suggest that the European Court is treating the Convention as a ‘living instrument’. interpreting it in ways which were not initially intended. And that our domestic courts, who they say better understand British circumstances, should have the final say.

Others, however, consider that the Act is essential for safeguarding our basic human rights. And that there is a role for a supra-national body in keeping signatory governments in check.

We consider that the Law Society of England and Wales has a big part to play in this debate. Whether by publicly campaigning against the changes or acting as a “critical friend”. Ensuring that all safeguards which must be kept are in fact so retained.

In my opinion, there is immense value to the public in having an organisation which represents some 160,000 lawyers considering and commenting upon issues such as this. Explaining clearly its concerns. Engaging with the press and the general public. So that they too can have a fully informed view.

That is true for a wide range of issues. Including those I have mentioned earlier.

Section 9 – “Conclusion”

So, to come to a close.

I have already quoted from Rudyard Kipling. This is William Shakespeare. It is Portia’s speech from “The Merchant of Venice”, where Portia is acting as an advocate, speaking on behalf of her friend, the merchant, Antonio.

 The quality of mercy is not strained,

It droppeth as the gentle rain from heaven

Upon the place beneath: it is twice blest;

It blesseth him that gives and him that takes:

’Tis mightiest in the mightiest: it becomes

The throned monarch better than his crown;

His sceptre shows the force of temporal power,

The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;

But mercy is above this sceptred sway;

It is enthroned in the hearts of kings,

It is an attribute to God himself;

And earthly power doth then show likest God’s

When mercy seasons justice. Therefore,

Though justice be thy plea, consider this,

That, in the course of justice, none of us

Should see salvation: we do pray for mercy;

And that same prayer doth teach us all to render

The deeds of mercy. I have spoke thus much

To mitigate the justice of thy plea.”

That is probably the most famous plea of mitigation ever recorded!

And also this - King Solomon from the Book of Proverbs:-

“Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.”

These are both tremendous reminders us as lawyers. That one of the most important facets of what we do is to act as advocates, either orally or in writing, on behalf of our clients.

We are called, in whichever country we practice, to do this. That is our role. It is so much more than a just a job we do on weekdays. It is our vocation. For life.

And one of the greatest aspects of our profession is that we all share values of ethics, justice and a commitment to the rule of law. That is so wherever we might have been trained. Or whereever we might practise. And in each and every country in which infringements to those principles that we hold so dear occur, we can be sure that we have the support of our fellow lawyers from around the world.

Thank you