Lawyers must keep independence

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