Lawyers must keep independence
8 February 1999
Shadow Attorney General Edward Garnier QC argues that Lord Irvine's plans
for a Criminal Defence Service threaten the constitutional role of the
On 5 July, the Lord Chancellor made a speech to the Third Worldwide Common
Law Judiciary Conference in Edinburgh. He concentrated his remarks on what
he called the "cornerstone issues" of judicial independence. Without that,
said Lord Irvine, there can be no rule of law. He cited the security of
tenure and of remuneration and certain legal immunities that British judges
enjoy as safeguards to that independence.
The Lord Chancellor was right to imply that British judges have not
historically abused their privileges and powers. They are trusted to be
impartial and faithful to the law. We can be proud of our system and we can
have every confidence in our judiciary. But as the Lord Chancellor also
pointed out, the independence of the judiciary is also "nourished by a
political and professional culture.
"With us, this derives from the free and self-confident legal profession
from which our judges are drawn. This enables every judge to look the
Government, his fellow judges, or anybody else in the eye and do his duty,
in the words of the judicial oath, 'without fear or favour'".
So far, so good. I agree with all of that as a practising member of the
Bar, as an assistant recorder, as a Conservative MP, as Shadow Attorney
General, and as a citizen who may need to resort to law and the arbitration
of Her Majesty's Judges.
I am also a strong supporter of the office of the Lord Chancellor. It is
one of our constitutional quirks, which places on office in all three parts
of the constitutional firmament.
Like so much of what is good and of lasting value in our country, the
peculiarity that is the Lord Chancellor (the office, not the man) has
evolved over centuries. Holders of the office have always come to it after
long and distinguished careers at the law, a profession that puts
independent individual judgement above all else. They have come to the job
imbued with the values that underpin our democracy: the rule of law; the
independence of the judiciary from any executive interference; the duty of
the courts to stand between citizen and state; and to confine public
authorities within the law.
What the Lord Chancellor was saying in Edinburgh was not new or original
and I do not complain about that. Too often MPs can be heard sounding off
about judges, the judicial appointments system, particular sentences in
criminal cases or judgments in civil cases, without understanding the role
of the judge and their place within the constitution. It is not infrequent
to see newspaper columns do the same. The law and parliament are becoming
foreign to each other and that ancient, symbiotic relationship is fading
fast. It is easier to hurl abuse than to learn about the strange.
Having said all that, I want to hurl a little abuse myself. I am not a fan
of the personal attack. This Lord Chancellor is in many ways a remarkable
holder of the office. He has certainly given it a new profile.
We know more about his friendship with Mr and Mrs Blair than the
relationships between any of his predecessors and their prime ministers and
spouses. We know he is determined to change much about this country and its
institutions which he, and perhaps other members of this extraordinary
government, consider to be outmoded or inappropriate.
But we also know that he is determined to foist upon this country a
Criminal Defence Service (CDS), a nationalised state defender system. In my
view, this runs wholly contrary to the interests of an independent legal
profession and the clients it presently serves without fear of or favour
from the state.
The very independence of the judiciary is nourished by the independence of
the advocate's profession whence the judges came. State defenders can be
good men and true; state defenders can be people of independence who will
at all times follow the statutory code of conduct. I am sure that many will
I am equally sure that public perceptions will change, that public
confidence will diminish and that the quality of justice will be adversely
affected by the CDS. I wish it were not so. I wish Lord Irvine would
re-read his Edinburgh speech. He said some good things in it.
Edward Garnier QC is Conservative MP for Harborough and Shadow Attorney