WE NEED eternal vigilance in the rule of law , writes Gordon Jackson QC
In the New Year’s Honours, the Crown Agent, Catherine Dyer, was given a CBE. I have known Catherine for many years. She has the combination of being both a charming and decent person and a lawyer who has earned the respect of all sides of the profession. The honour is well-deserved.
The citation was “for services to law and order.” Nothing wrong with that either. Maintaining law and order is essential in any society and those, like Catherine, who spend most of their life doing that are entitled to our support and appreciation.
There is, however, something else which is of equal, if not more, importance in a free and democratic country and that is the maintenance of the rule of law itself.
That is a big subject but the basic concept is really quite simple. On one hand no individual or group, no matter how rich and powerful, is above the law, and on the other no citizen, no matter how unpopular, should be condemned except in strict accordance with clearly defined and understood laws and procedures. In other words, no-one is to be guilty and punished unless and until the law establishes it.
Nothing controversial there, you say. Surely these are principles we can all agree on. Unfortunately it is not always quite that simple. All politicians believe in the rule of law but don’t always fully understand it. The State in all its manifestations is always liable, in what it sees as the greater good, to chip away at it. Usually with the best of motives, rarely maliciously, often more by neglect than anything else but ultimately there is the constant danger that this essential part of the fabric of a free society will be undermined. Maintaining the rule of law requires constant vigilance.
In that, many groups and organisations play an important part but two are of particular significance - the judiciary and the legal profession. The importance of a completely independent judiciary cannot be over-emphasised. In Scotland we are fortunate to have that and I am sure the new Lord President will have upholding and strengthening the rule of law as an overriding priority. I wish him well.
But of equal importance is an independent, fearless and, dare I say it, properly-funded legal profession. This applies to all lawyers - advocates and solicitors, civil and criminal practitioners, those who go to court and those who never leave their desk. All have a responsibility in this regard but, if I can be forgiven my own bias and background, it is especially true of those Advocates who practice in the criminal courts.
Little annoys me more than the often heard suggestion that those who defend alleged criminals are in some vague way against the forces of law and order.
If we fail to properly support and value those who defend the interests of the unpopular and unlovely we cannot claim to truly believe in the rule of law.
I was delighted to read Catherine Dyer, Crown Agent CBE, for services to law and order. I would be equally delighted to read – and you can choose any name from a long list - Donald Findlay QC CBE for services to the rule of law.
That balance would show a real appreciation of what is important - but I’m not holding my breath.
• Gordon Jackson QC is Vice-Dean of the Faculty of Advocates www.faculty.org.uk