Strathclyde: Erosion of trust in rule of law has become acute
The House of Lords constitution committee has called for the ethical training of lawyers to be “reviewed and strengthened” and for lawyers to receive it “throughout their career”.
Peers also said delays and backlogs in the civil justice system should be “urgently addressed by the government” and a continuing failure to address them would be “a significant threat to the rule of law in this country”.
In a report on the rule of law, they said that distrust of the legal profession had been “accelerated by negative rhetoric in the media and by politicians” and exacerbated by the lack of legal advice, but it had also been “undermined by high-profile examples of unethical practice”, such as the Post Office scandal.
Advice, guidance and training on how to fulfil ethical obligations was available from regulators and professional bodies, but was not obligatory.
The committee said “attendees at our roundtables agreed that a culture of ethical practice is very important in the legal profession”, but were concerned that after qualification, in the words of the Legal Services Board, there was “almost no ethical training in our profession and there is no mandated requirement for ongoing ethics training”.
It recommended: “The ethical training of lawyers should be reviewed and strengthened by the relevant professional bodies. Lawyers should receive dedicated ethical training throughout their career.”
Earlier this year, the Legal Services Board proposed new requirements [1] on legal regulators to strengthen ethical standards from the start of lawyers’ careers.
The report, The rule of law: Holding the line against tyranny and anarchy, said too that alongside efforts to reduce delays and backlogs in the criminal courts, the same problems in civil justice needed to be “urgently addressed”.
“A continuing failure to address these issues would be a significant threat to the rule of law in this country.”
They recommended that the government explore how the uptake of alternative dispute resolution could be “further encouraged”, to reduce pressure on the courts.
Meanwhile, the “continued reliance on paper in some parts of the court system contributes to inefficiencies and delays” and the digitisation of remaining paper-based processes should be a priority.
Peers stressed the importance of early legal advice and described the challenges facing legal aid providers as “both systemic and significant”.
Whilst they welcomed the recent increases in legal aid fees, they said the government needed to adopt “a more innovative approach to reform the legal aid and advice system”, which should include both reviewing the scope of legal aid and “technological solutions”.
“The high costs involved in accessing legal advice and representation, coupled with the limited availability of legal aid, is a significant threat to the rule of law,” the report cautioned.
Meanwhile, a “culture of hostility towards the judiciary” had been allowed “to develop in recent years because of inappropriate, and often inaccurate, public criticism by politicians and journalists, accompanied by inadequate defence from government ministers”.
Personal attacks on individual judges or on the judiciary as an institution were “unjustified” and endangered judicial independence.
They recommended that politicians and the media “refrain from publicly criticising judges, in general or individually, even when disagreeing with specific judgments or the law that underpins them”.
This needed to be accompanied by “ministers, particularly the Lord Chancellor”, speaking out in defence of the judiciary when it came under attack.
Other recommendations were that there should also be “uniform provision” of public legal education in schools to improve public understanding of, and confidence engaging with, the justice system.
“Necessary resources and expertise should also be made available to better communicate judicial decisions.”
The law itself needed to be accessible and clear: “The government should avoid introducing additional complexity into the statute book unnecessarily, and it should not seek to bypass parliamentary scrutiny through the excessive use of delegated legislation.”
Lord Strathclyde, chair of the constitution committee commented: “The erosion of trust in the rule of law has become particularly acute in recent years, as law breaking with apparent impunity in the form of shop theft and other visible crimes, alongside delays and backlogs in the courts, have now become part of our everyday lives.
“The government should be at the forefront of restoring our belief in the rule of law. It needs to take strong and visible action to promote and uphold this important constitutional value and this should be underpinned by addressing the weaknesses in our justice system.
“This is a crucial moment and decisive action must be taken.”