Gordon Jackson QC: What the rule of law means

Gordon Jackson QC

Fabulous work is being done with families on the whole issue of conflict, trying to alleviate conflict, find new solutions to old problems, and helping young people, in particular, to better understand and manage conflict. The real eye-opener for me was understanding the effect that domestic conflict has on young people leading to homelessness, mental health problems, lack of confidence and inability to form relationships.

Of course, advocates deal in conflict, conflict is our livelihood. It is conflict that brings people to the courts. Divorce cases with often a great deal of conflict…neighbours in dispute over a couple of feet of boundary land. And my own field of criminal law is all about conflict, as disputes end in violence and sometimes of the most extreme kind. Individuals and families shattered because conflict has not been managed.

So very often there is a pattern of young homeless men, hardly more than children, with a background of domestic conflict and violence and no control mechanism. And what does the law do but bring them into an adversarial system itself. Quite simply, the judicial system is a very blunt instrument. It can analyse what has happened, it can punish and detain but at best we paper over the underlying problems that many people have and which has brought them to where we find them.

The law is of little value in dealing with society’s real problems. We are perhaps getting a little better. Mediation rather than litigation is becoming more common. Specialist courts to deal with domestic violence and people with addiction problems, and that means specialist judges with a greater understanding of these issues. All good but I repeat, we are more often than not just picking up the pieces.

Comparing what lawyers within the judicial system do with what the SCCR does is a pretty cheap comparison. They proactively prevent the consequences of unresolved conflict. We just clear up the mess as best we can. So, having beaten my breast and confessed the limitations of the judicial system, is there a positive side to my chosen profession? Do we, with all our limitations, offer anything of value to society? I believe we do. A couple of examples.

The rule of law is a phrase used often without understanding what it means. It means a lot of things. Firstly, and vitally, it means that no-one is above the law. Politicians, lawmakers, judges, none of them and no constitution is exempt from being constrained by the law. As it has been put in a free democratic society, the law is king. And equally, no-one can be denied the protection of the law. You can neither be above the law nor beneath it. That is why the right of everyone is protected by the law. There must be no arbitrary arrest or punishment. The right of everyone to a fair trial is absolute. That is why I get mildly irritated when I get the oft-repeated challenge: “How in good conscience can you defend such apparently bad people?” There is no-one I would not defend with vigour to the best of my ability and it is quite simply because I believe passionately in the rule of law. Without it there cannot be a fair and functioning and free democracy as people in some other countries have found out to their great cost. And for that lawyers are vital. A free society needs us if the rule of law is to survive.

Secondly, the rule of law needs a truly independent judiciary. We have that and not every country can say the same. A judge has two functions. To protect the state from the actions of the individual and to protect the individual from the power of the state, and to do both without fear or favour. I meet people from other cultures and countries who find it hard to believe that money never changes hands and that no amount of money will influence a judge or prosecutor. But it is true. And I get angry when politicians or the media attack judges for just doing their job as best they can.

One other thing. It is all meaningless unless there is access to justice so that even the poorest in our society can have access to the judicial system. Rights are meaningless if they cannot be exercised. That, too, is demanded if the rule of law is for everyone. In this country we are quite fortunate that we have a legal aid system which, while not perfect, is better than any other I have encountered and we will be vigilant in seeing that does not change.

I began by comparing what we do to what the SCCR does in a world of conflict. I repeat that what they do is of great, and perhaps greater, value, but we all have a direct part to play.