Ahead of Pro Bono Week 2021, the National Pro Bono Centre and LexisNexis hosted a stimulating panel discussion on the Rule of Law and Access to Justice: Where Do We Go From Here? It was a relevant topic in light of the pandemic which, as well as dramatically altering every aspect of daily life, has laid bare the policies that currently threaten the rule of law and access to justice in the UK.

Chaired by the legal journalist, Catherine Baksi, the stellar panel I was invited to join included Baroness Hale of Richmond (former President of the UK Supreme Court), I. Stephanie Boyce (President of the Law Society of England and Wales), Iain Anderson (Executive Chairman, Cicero Group and a non lawyer), and James Harper (Executive Sponsor of Rule of Law and CSR, LexisNexis).

Between the five of us was more than 100 years of experience in the legal and law-adjacent professions, which made for a well-rounded and informed discussion on threats perceived to the rule of law and access to justice, particularly in the context of the pandemic. We also examined the measures needed to protect people’s rights and our constitution. Continuing the themes from the panel discussion held in Pro Bono Week 2020, we also considered the disconnect between the public and the rule of law as it stands, and how the two can be brought closer together.

There was a prevailing consensus amongst the panel that the current desire by the Government to reform the judiciary emanated from the Gina Miller cases, most particularly the Prorogation of Parliament ruling in 2019. The ruling had engendered a deep resentment among many who supported Brexit who were fed the fiction that the judges were biased. Regrettably, the government has decided to build on those misconceptions to engage in wholly unnecessary reform. This planned assault upon judicial independence was seen as the most imminent threat to the rule of law in the UK.

In placing a political complexion on what are purely judicial decisions, parliamentarians have constructed a false image of the judiciary and the legal profession, with unfounded suggestions of partisanship and alleging ant-Brexit sympathies, when we have one of the most distinguished Supreme Courts in the world, where politics are left at the courtroom door and intellectual rigour and judicial integrity are paramount. Such attacks serve to undermine the trust that the public places in our senior judiciary and poisons the rule of law.  Our judiciary upholds the rule of law in the interest of the public it serves. Sometimes we will disagree with their decisions but that is different from challenging their good faith.  

Concern was also expressed about the increased use of emergency powers by the Executive under the flag of the pandemic to limit civil liberties with inadequate democratic oversight.  However, an issue which caused serious alarm amongst the whole group was Government’s clear intent to dismantle Judicial Review as it currently stands. The whole point of judicial review is that it provides a mechanism for challenging abuse of power by government or arms of government. It enables ordinary citizens to seek redress from the High Court when a public authority has abused its power or failed to pay due regard to human rights in the decisions that have been made.

The Hillsborough Inquiry would never have been held without a successful application to the High Court under Judicial Review. The scandal of bullying and sexual abuse in the army would not have been exposed but for JR. The reopening of inquiries into the murders of women, or the separation of very elderly couples in care homes would not have been given a public airing without JR. It is why governments do not like it and they want to curtail it. When a leading QC who was a Conservative Minister in the House of Lords was asked to conduct a Review of JR he reported that there was not much wrong with it and it should be left alone apart from a few administrative tweaks. A disappointed Government is now holding another Review. If you do not get the right answer the first time, just keep having reviews till you do.

However, it should concern us that that none of these assaults on the Rule of Law cause much concern to the public; the working of the legal system is largely a mystery. Thus, while support of the rule of law may be assumed to exist among the public, understanding of its practical applications is rare. The onus to rectify this must be borne evenly across education systems, the media, politicians, and the legal profession.

One of the pillars of the rule of law is access to justice, and as the primary guardians and enforcers of the rule of law, it is for lawyers to ensure all people have access to good legal advice and representation before the courts. The draconian cuts to legal aid and to court services have caused enormous damage to our system. It is imperative that we explore new ways to promote access to justice.

That is why Pro Bono Week matters. It is a reminder to all of us of the significant impact we have when we take on a pro bono case, as well as the importance of standing alongside those within our profession currently shouldering the brunt of keeping the legal aid system afloat in the face of government stupidity. The panel was unanimous in emphasising the importance of public education about law and this included civic education in schools so that people are better informed about the workings of the legal system. It was also felt that our politicians could do with some extra curricular tuition on why the rule of law matters!

The world is facing many challenges and increasingly we are seeing the subversion of the rule of law by authoritarian leaders around the globe who try to capture their judiciaries and bend them to their will. This is now happening in places that claim to be democracies. The real measure of a true democracy is more than a mere muttering about adhering to the rule of law. It means a separation of powers, ensuring real independence of judges and an independent legal profession.

Sadly, attacks on the legal profession and on a free media exposing such abuse are now rife in many jurisdictions. Internationally, people look to the UK as a model of judicial integrity and independence. That is why it is vitally important that we do not allow our stature in the global community to be impaired. The panel discussion shone a light on the cracks in the UK judicial and legal systems, further fractured by the global health crisis.

The legal community has to be prepared to speak out about attacks upon those fundamental features of the Rule of Law – judicial independence; judicial review and access to justice. It does not matter which area of law we work in, whether commercial or corporate or family law or crime, this matters. It is about the fundamental values which underpin lawyering. We cannot be bystanders.

Baroness Helena Kennedy QC is director of the International Bar Association’s Institute of Human Rights. The Rule of Law event was co-hosted by the National Pro Bono Centre and LexisNexis, following on from an event with a similar panel in Pro Bono Week 2020. The event will run again this Pro Bono Week (1 – 5 November) with the same panel of speakers.