Rule of Law

Lord Bellamy Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I add my congratulations to the noble and learned Baroness the Advocate-General for Scotland and to my noble friend Lady Laing on outstanding maiden speeches.

I will address something that has not been directly touched on so far, which is the importance of the role and the integrity of lawyers in the application of the rule of law. I will then come on to discuss some of the issues that may arise as a result of the Horizon scandal.

I ask first, as some other noble Lords already have: what is the essence of the rule of law? My answer is the same as that of Thomas Fuller in the 17th century:

“Be ye never so high, the law is above you”.


Indeed, we sit here in this Chamber under the visual representation of that principle. If noble Lords opposite look at the fresco up on the left-hand side, they will see the famous scene from Shakespeare in which King Henry V—in modern terms, the Government—kneels in front of the Lord Chief Justice, Judge Gascoigne, and accepts his authority as embodying the rule of law. If every thought one has ever had is to be found somewhere in Shakespeare, for the rule of law please see “Henry IV, Part 2”, act 5, scene 2.

In a modern, democratic society such as ours, the law in question, and hence the rule of law, requires not only the consent but the trust of the governed. This trust we achieve, broadly speaking, through parliamentary democracy and an independent and incorruptible judiciary, both priceless aspects of the rule of law. But in our adversarial common-law system, the judges determine cases that are presented and largely conducted by the lawyers. So today I would like to concentrate on the role of lawyers in the English common-law system, particularly in cases where the resources of the parties are not evenly matched.

I say the role of lawyers in the English common-law system since very long ago, in the last century, I once worked as an EU judge in a system essentially based on the more inquisitorial approach of French civil law. In a more inquisitorial civil law system, the role of the lawyer is much reduced: it is the judge who has the primary responsibility for ascertaining the truth, examining the witnesses and deciding the law, with only limited participation by the lawyers. By contrast, in our adversarial common-law system, the lawyer’s role is central. The lawyers assemble the evidence, present and shape the case and challenge the witnesses. The role of the first instance judge, or in criminal cases the jury, is essentially to decide which of two rival versions is to be preferred. The judge and the court rely on the lawyers to a very considerable extent to draw attention to the evidence, to ensure disclosure, to cross-examine and so forth. So the fairness and the integrity of our legal system in practice depend significantly on the competence and integrity of the lawyers. If that competence or integrity weakens for any reason, the system is vulnerable to injustice, particularly where there is inequality of arms between the parties, and thus the rule of law is itself diminished.

It is for that reason that lawyers have ethical duties, not only to the client but to the court, to act with

“complete integrity, probity and trustworthiness”—

to quote Tom Bingham when Master of the Rolls. But, as the noble and learned Lord, Lord Hoffmann, has said, for the lawyer, this in turn gives rise to “divided loyalties”, because the lawyer also has a duty to the client to do the best they can for the client. In practice, there may be very heavy pressures on the lawyer to act primarily in the client’s commercial or reputational interest, in the interest of the lawyer’s firm or, for an in-house lawyer, in the interest of his or her employer. In a civil law system, those conflicts are reduced because the role of the lawyer is reduced, but in a common-law system, very difficult dilemmas are sometimes presented to our lawyers. Those very difficult dilemmas and the rules applicable to them must be worked through very openly and very thoroughly for the rule of law to thrive.

I am sorry to say that in my short time as a Minister, answerable to your Lordships for the affairs of the Ministry of Justice until the last election, I began to wonder whether everything in these regards was entirely in order. In my conversations around the country, judges in courts and tribunals operating at the sharp end, if I may call it so, raised concerns about declining ethical standards, not least the widespread use of inexperienced and often poorly trained paralegals. Then along came SLAPPs, where lawyers in essence weaponised the law to the detriment of weaker parties. Before your Lordships on behalf of the Government, my noble friend Lord Sharpe and I sought to address that problem, at least in part, in the Economic Crime and Corporate Transparency Act. Later, when I was responsible in your Lordships’ House for the Arbitration Bill, questions of ethics came up again, including what is known as the Nigeria case, where it turned out that even the lawyers conducting the arbitration were personally implicated in corruption.

However, towering above and overshadowing all that was the Horizon scandal, involving hundreds of wrongful convictions, wrongful imprisonment and many other cases where money was wrongfully extracted from sub-postmasters or sub-postmistresses, leaving lives ruined, families in deep distress and, in some cases, deaths or suicides. My last ministerial duty was to support my noble friend Lord Offord in passing the unprecedented legislation needed to overturn those convictions. I have been asked by fair-minded observers how the legal system in this country can be said to uphold the rule of law if such an appalling disaster as Horizon can be allowed to happen. There are no doubt many views, but in the post office inquiry, great attention has been focused—whether fairly or not, I do not know—on the role of the lawyers. We need to wait for the outcome of Sir Wyn Williams’ report before we have the full picture, but there is a question as to whether Horizon was a one-off or whether there are weaknesses in how our lawyers approach their duties and responsibilities.

Richard Moorhead, professor of law and ethics at the University of Exeter, considers that there is a problem. He sets that out in his Hamlyn lecture this month, entitled “Frail Professionalism: Lawyers’ Ethics After the Post Office and Other Cases”. These are highly prestigious lectures. Recent lecturers having included the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Thomas of Cwmgiedd. Professor Moorhead suggests that current ways of thinking in the legal profession result in some cases in damage to the rule of law, particularly where there is inequality of arms. He discusses ways of promoting more rigour and honesty on the part of our lawyers.

Therefore, does the Attorney-General agree, in the light in particular of Horizon, that there should be now a full review of the ethical standards and training of all lawyers in England and Wales, including paralegals, and that that review should further define the ethical standards applicable, reinvigorate those standards and ensure that there is proper accountability and effective regulation of the legal profession?