Whose Side is the Law On?
My Keynote Lecture from 17 May 2024 at the Open University's Annual Festival on Global Challenges and Social Justice.
“I - and here one interposes one’s own name - do swear by Almighty God that I will well and truly serve our Sovereign King Charles the Third in the office of - and here you insert the name of the judicial office to which you have been elevated - and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”
I will do right to all manner of people after the laws and usages of this realm without fear or favour, affection or ill will.
That noble formula expresses the thing we crave in the law - a Wisdom of Solomon resolution of the complexities of the human condition. An unravelling of the contradictions and multitudes contained.
Alright. Granted, I am laying it on a bit thick.
There is no need to set the law so high on such a flimsy pedestal in order to interrogate whether it delivers on the promises it makes. Enough to ask whether it meets its basic promise of fairness without fear or favour. And, as the title of this lecture ‘Whose Side is the Law On?’ makes clear, I think it falls short.
What I want to do this afternoon is four things.
First, make some points about how the law is constructed to align it with power.
Second, observe some features of the landscape in the United Kingdom that make that situation worse.
Third, offer some evidence that the law is failing to meet its promise to “do right to all manner of people without fear or favour.”
And, fourth, suggest some tentative improvements.
First - the law is constructed to align it with power.
The main sources of the law are statute law, Parliament-made law, if you like, and judge-made law.
For a lawyer, Statute law is how a party holding a majority in the House of Commons leaves its lasting stamp on the country. It is an articulation of the policy preferences and priorities of the Government holding power.
It is the most conspicuous way that a Government enlists the power of the State to express its preferences as to how that society should look. Its will is written into the law books and can then be enforced by the State’s power to confiscate property and coerce through imprisonment.
It is also backward looking - the laws of the land are not cancelled on a change of Government. What this means is that the law is inherently conservative - it is the accumulated policy preferences of those who now or have previously held power.
I’m not saying this is right or it is wrong. It just is - unless you are or you have been in Government you have had no ability to make this form of law. And the lawbooks reflects that.
Common law - our other source of law - is made by judges. And it reflects how they understand the world.
Judges are usually clever men - fewer than a third of senior judges are clever women - but their most singular quality is that they are privately educated. Elitist Britain, a 2019 study by the Sutton Trust and Social Mobility Commission, showed that although only 7% of the population went to private schools, 65% of all senior judges do. And 71% went to Oxbridge compared with only 1% of the population.
No profession in Britain is less socially diverse.
Fairness looks different to those who have grown up in communities where the pathways to highly paid professional positions are clearly mapped and well-trodden to how it looks for those whose peers could not see a way out and amongst whom poverty, unemployment and criminality are a commonplace.
This is a truism - but we still need to wrestle with its consequences.
I began this lecture with the judicial oath.
Nothing in that oath transports judges to a higher spiritual plane, to a more enlightened state of being.
There are lots of day to day examples of how these biases play out but I want to focus on a more fundamental one: the idea of Parliamentary sovereignty.
This is the idea that Parliament is supreme and can make whatever laws it likes. It is sometimes described as the cornerstone of our constitution - although it might be better to describe it as the only (largely) fixed rule of our un-written constitution. And it raises an obvious question about how fundamental rights might be protected.
Tom Bingham to his friends - Lord Bingham to you - was described in one obituary as “the greatest judge of our time – arguably the most significant judicial figure among the long line of notables in the history of the Anglo-Saxon legal systems.”
His legacy for the general reader is a book called ‘The Rule of Law’. Here’s what he had to say in that book about Parliamentary Sovereignty:
“Critics of parliamentary sovereignty have no difficulty conceiving of flagrantly unjust and objectionable statutes: to deprive Jews of their nationality, to prohibit Christians from marrying non-Christians, to dissolve marriages between blacks and whites, to confiscate the property of red-haired women, to require all blue-eye babies to be killed, to deprive large sections of the population of the right to vote, to authorise officials to inflict punishment for whatever reason they might choose.
And then he adds a coda:
“No one thinks it at all likely that Parliament would enact legislation of this character, or that the public would accept it if it did…”
I would say that the coda - that Parliament can be relied upon not to do awful things - speaks to a particular understanding of how (or more particularly against whom) Parliament has used its power through the ages.
The description it gives of what Parliament can be relied on not to do is hard to reconcile with your reality if your skin is Black or Brown. It is hard to reconcile with Parliamentary approval of, for example, the activities of the East India Company - or its treatment of enslaved peoples.
And this is not just a historical problem. The expanded powers of the British Nationality Act give the Government power to strip British citizenship from a Jew even if, in the case of a Jew who acquired their citizenship through naturalisation, the effect would be to leave them stateless. More recently, it has said that people of colour - let us not pretend that the Rwanda Act is about deporting White people - can be forcibly removed to a country we know not to be safe.
If you are Black or Brown your experience suggests that you should be less complacent about Parliamentary sovereignty than was Lord Bingham.
I don’t make those points to rain on his parade. He was, by all accounts, a decent man and the views he expressed are entirely constitutionally orthodox. All of us are constructed by our personal history. I could have picked any one of numerous other constitutional grandees.
But Parliamentary sovereignty is a notion invented by judges who are even now - and it was more so in the past - grand, privately educated, wealthy, White English men and it reflects their perception of who England is in the world, what it has done and to whom, and what it is likely to do.
And what it is likely to do to people like them is very different from what it is like to do to a Brown woman who has been trafficked to the United Kingdom for the purposes of sexual exploitation. She, the House of Commons recently decided, can be deported to a country that is not safe for her.
The final feature of the law I want to point to is its expense. It has become routine for lawyers to cost thousands of pounds. Not thousands a week - or even thousands a day - but thousands an hour. It is obvious but too rarely said that a tool that is too expensive for normal people to use becomes a tool that only the wealthy can use. It is a tool they use to embed their interests, the interests of people with money.
The law is a very different thing for those with the wealth or social capital to engage lawyers - to those who can afford us we are a powerful militia - to what it is for the overwhelming majority who do not.
The traditional response to this is to make the point that there are lots of lawyers who will give their time for free to ensure access to justice. And there are. The point is true so far as it goes - but it does not go very far.
The way our system allocates costs means that if you litigate and lose you will generally, not always but generally, pay the winners’ costs. So even if you have lawyers acting for free you often cannot fight because if you lose you face enormous financial penalty or bankruptcy.
This critical feature of the law - a profound shortcoming in a thing whose main purpose is to be a safeguard - is crafted by a civil procedure rules committee who we believe to be entirely white and overwhelmingly Oxbridge educated.
I would point to these three features of the law that align it with power rather than fairness. The nature of statute law, the identity of our judges, and the nature of our costs regime.
The law is the victory dance of power.
Second - some features of the legal and social landscape in the United Kingdom that make this situation worse
The first is the limitless power of Parliament over judges.
I have touched upon this already - lawyers call it the sovereignty of Parliament and we have seen it mostly recently in the constitutional tussle over Rwanda. The Supreme Court looked at the evidence and said “Rwanda is not safe” and Parliament responded with a statutory provision that said, “We don’t care, you have to treat it as safe when exercising your powers as judges.”
You might think this is inevitable. In a country that is a democracy - who else can wield power but those elected by the people? (Some of the people, at any rate: Tony Blair won a significant workable majority in 2005 with only 35% of the popular vote.)
But it is not inevitable.
Other democracies find ways to distribute democratic power over temporally different electorates. They elect representatives in tranches rather than all at once. They have multiple elected houses, each of which can clog the other and which are also elected at different times. They have an elected Head of State who has his or her own democratic legitimacy. And, most of all, they have a higher law which safeguards fundamental rights and which it takes a super-majority of the electorate or its representatives to change.
What we have is what Lord Hailsham described as an “elective dictatorship” - the only real power belongs to the House of Commons. The Lords - as we have seen from the Rwanda Act - gives way.
And this feature - which is present in England and Wales although less clearly in Scotland which has its own legal system - is judge-made.
We have no written constitution, no higher rule to define or restrain the power wielded by a Government. So although we talk about the separation of the powers - constructing the Executive and Parliament and Judiciary as independent and counterbalancing sources of power - our reality is very different.
Parliament can do what it wants.
In the early years of its life, Good Law Project brought a number of cases. We raised money from tens of thousands of people to litigate cases in our name. We were, if you like, a legal trade union. We enabled normal people who could not afford to wield the law alone to wield it together.
Good Law Project versus the Government was the new In re a Company - an excellent if ‘inside baseball’ joke made by one of the senior judges hearing cases against the Government. But then everything changed in about the summer of 2022 - since which time we have only been allowed to litigate in our own name once, in an environmental case where special rules apply.
What happened was a series of attacks on us in the press culminating with a very explicit threat made to the judiciary by Rishi Sunak:
“I have the greatest respect for our judiciary and the rule of law in this country” wrote Sunak in a press release in August 2022. He then went on to threaten new legislation to force judges to do his bidding “which he would activate in the event of judicial recidivism”: an extraordinary word to use. And he said he would not need the consent of Parliament to do it.
For good measure, that press release attacked me, by name, ten times. And since then, save for only one case in a special regime, we have not been allowed to litigate. Would this have happened if the independence of the judiciary were protected by a higher law - so that Sunak could not issue that threat and expect to be taken seriously?
The reality is that, because the independence of the judiciary is not protected by a higher law, there is no need for Sunak to legislate to stop judges interfering. When the Israeli Government threatened the independence of its judges hundreds of thousands took to the streets. When the Hungarian Government threatened the independence of its judiciary the EU threatened it with sanctions. But the absence of a higher law in the United Kingdom enables the Government to interfere with the judiciary in private, behind closed doors, and without sanction.
It would be an oversimplification to say that judges can be obliged to do what Government wants. But they can certainly be lent on. You will struggle to find a single senior public lawyer who (speaking privately) would take serious issue with the proposition that Government has successfully tilted the playing field against those who want to use the law.
I was told a year or so ago of a prominent Court of Appeal judge - I know his name - who had been saying that claimants were going to lose a lot of cases because judges wanted to conserve their power in case of another “prorogation-type” event, another direct attack on democracy. And you can see this very clearly in the figures - there has been a broad spectrum collapse in success rates in cases against the Government.
Has this Government - famously characterised as ‘We’re fucking breaking international law like it’s one of our five a day’ - suddenly become hugely law abiding? Or have judges moved the goalposts?
This - the absence of proper legal protection for judges from bullying Ministers - is a subtle feature of the constitutional landscape that aligns the law with Government power.
I also want, under this section, to draw attention to one further feature of our legal landscape, this one in plain sight, that aligns the law with Government power.
Different judges have different approaches to the relationship between themselves and the Government.
There is nothing sinister in the fact of these differences - they might reflect different philosophies (which are certainly to be found in academia) and they might also reflect different approaches. So some senior Administrative Court judges worked almost exclusively for the Government before becoming judges and others worked almost exclusively against it. It would be surprising if their personal history didn’t reflect how they thought about their former clients.
One can’t sensibly deny that they exist - these differences. I was a King’s Counsel - notionally I still am. And I am now through Good Law Project one of the biggest buyers of the services of public law lawyers. So I know very well, having been on both sides of the table (payee and payer?), that lawyers are always interested in who their judges are. And they always tell their clients and sometimes (not always) they have strong views. Sometimes as a lawyer you believe you know that a difficult case can become impossible - or a simple case easier - because of the particular judge you get.
What is troubling is the belief that judicial review cases which carry enhanced political risk for the Government are placed before judges whose way of looking at the world is politically convenient. In other words that we decide politically sensitive cases by handpicking the judge.
There is a widespread perception that this happens. In one very high profile case of ours - the Defendant was Michael Gove and Dominic Cummings was implicated - we won at first instance but were overturned in the Court of Appeal. This was a profound surprise to everybody - certainly to our lawyers and (it also seemed because they didn’t appeal until after the deadline) to Government lawyers. After the result came out, I was contacted by a High Court judge who said to me (I have their email) “You managed to pick 3 Tories in the CA (or rather Burnett did).”
Ian Burnett was then the Lord Chief Justice.
That role is where the political rubber hits the legal road.
The Lord Chief Justice is appointed by the Lord Chancellor - who is of course a Minister, indeed a senior Cabinet Minister. Under the Constitutional Reform Act 2005 the Lord Chancellor can, but does not need to, consult anyone else before making the appointment. So the Lord Chancellor can, if so minded, make a political appointment when choosing a Lord Chief Justice.
And under that Act the Lord Chief Justice “is responsible… for the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales and the allocation of work within courts.” He or she can decide who hears cases.
What I can say is that Government leaning judges are believed within the profession to be allocated to politically sensitive cases. And I can say that it is clearly constitutionally possible for that to happen. And I can also say that Ian Burnett was a member of the Carlton Club which is often described as the home of the Conservative Party.
I should add, I can’t say that what the law clearly permits and insiders believe does happen actually does happen. I do not know that the High Court judge who sent me that email was right - and they have since claimed they were just joking. And I don’t think that the data points about Ian Burnett are anything like ‘conclusive’ evidence that he did what is said; I know that privately judges, even judges who are sympathetic to the work that we do, speak highly of him.
But what I can say is that the perception of politically motivated listing is widely held. And the Constitutional Reform Act, in plain sight, does give to the holder of the most political of judicial appointments the power to decide who should hear cases.
Third - offer some evidence that the law is failing to meet its promise of fairness
Much of what I have said before is heretical for a lawyer to say. Or, more accurately, it is heretical for a lawyer to say it publicly because we certainly say it to one another .
When I have talked about perceptions of individual judges publicly I have been criticised by my peers - even by those I think of as enlightened. Their point is that it is wrong to say this stuff publicly because to do so is to undermine public confidence in the administration of justice.
This notion - that one must not undermine public confidence in the administration of justice - is an idea heavily embedded in my regulatory super-structure. It is, for example, an explicitly stated outcome sought by my professional conduct rules. And we all understand that it is important - the rule of law functions best when the limits of its authority are not tested, when the public has confidence in it. It’s a bit like being a parent.
But I do think a blind prioritisation of promoting confidence in the rule of law is dangerous and misguided. And that the omerta on examining whether the law delivers on its promise of doing right to all manner of people without fear or favour might ensure that it doesn’t. It might mean it serves privilege rather than fairness.
If we see or experience racism in the police force our confidence in the police declines. If our concern is for public confidence in the law we should ask people who might have experiences of the law different from our own whether they have confidence in it. We will build more confidence in the judiciary by interrogating how it works and what it does rather than by drawing a veil.
So Good Law Project asked people from all ‘minoritised groups protected by the Equality Act what they thought.
We commissioned polling from YouGov which showed that, for example, people of colour do have lower levels of trust in judges. Asked “How much, if at all, do you trust judges?” 65% of the general population (including people of colour) said: “a lot” or “a fair amount”. That figure fell to 61% for “Black, Asian and Minority Ethnic” adults and to only 47% or 50% for Pakistani and Bangladeshi people respectively (albeit from a small cohort). The only group that had less confidence in the judiciary was trans people at 46% (and 40% of all trans people said their confidence in the judiciary had fallen).
What was true of people of colour was also universally true.
The data showed, without exception, that the closer you looked like the archetypal judge the greater the degree of confidence you had in judges and the rule of law.
Those from higher social classes had more confidence than lower, older people had more confidence than younger, white people had more confidence than people of colour, straight people had more confidence than gay, able bodied people had more confidence than disabled, and cis people had more confidence than trans.
I may have missed it but I’m not aware of previous detailed polling on trust in the judiciary across minoritised groups. And that is a striking omission given the importance the legal profession attaches - or says it attaches - to upholding public confidence in the law. But is public confidence really the concern?
If it was, wouldn’t you want to know whether people actually had confidence in the judicial system - and if some did and some didn’t why?
Of course, many of these relative levels of confidence exist in relation to other institutions too. My point is not that these differing levels of confidence are unique to the law. My point is that lawyer’s attitudes to them - that they shall not be acknowledged or spoken of - is unique.
What is really being contended for by those who say, ‘you must not criticise judges, you must not undermine public confidence in them’?
If the concern really was to protect confidence in judges would they not be asking why it is that society’s 'winners' have confidence? Perhaps the true concern revealed by this selective silence - and silencing - is that things are working well for people who look like judges. Perhaps that is the real concern - to maintain the status quo? For it is certainly the status quo that is served by the omerta.
Just by the by, another important question is, why is public confidence in the rule of law given an elevated importance? For sure it has value but is it more important than the law working properly and fairly? And if a thing is broken, or damaged, is it right to encourage people to have confidence in it?
And, how is it that you really ensure confidence in judges and the law? Do you do it by protecting them from criticism? Or do you do it through responsible interrogation? Most lawyers, if asked to comment on any other feature of society, would say that the best way to keep things honest, and functioning properly, is through scrutiny, to interrogate whether things are actually working.
If that is right of everything else, why is it wrong of justice and judges?
I want briefly to share a postscript to that YouGov poll.
The group that had the lowest confidence in the judiciary was trans people: only 46% percent had confidence in the judiciary. And a staggering 40% of trans people said their confidence levels had fallen.
Causation isn’t correlation. But it is striking that when judges decide issues which have a profound effect on the lives of trans people, trans people themselvesoften aren’t in the room. Indeed, sometimes it has been bolted shut to them.
One of the guiding principles of the conduct of justice is that you should hear from those who are affected. But in the signal case of our times for trans people concerned - the Bell case - the Divisional Court refused permission for Mermaids, a charity that represents young transgender people, to intervene. It refused permission for Stonewall, undoubtedly the country’s leading LGBT+ charity, to intervene. And, having initially allowed an intervention from a trans child, it then changed its mind and rejected it. But it did allow an intervention from an anti-trans pressure group, Transgender Trend, which was not affected by the case and which had no recognised professional expertise in treatment protocols for trans children.
The decision was an appalling one - as was the conduct of the case by the judges in question. Speaking as a lawyer, and I am not commenting on its outcome, I cannot think of a worse decision in recent times. And for the record, I was saying this very publicly before it was overturned by the Court of Appeal.
We have come to think of minoritised groups as unable to participate in decisions affecting their lives, often because they are ‘self-interested’. I wonder where that leads - what does it mean for the body autonomy of women? But if groups are excluded from the room when decisions are made about their lives is it any surprise that they have little trust or confidence in the process?
That is the law failing to meet its promise of fairness. That is the law deserving the lack of confidence it has generated.
And it is right, rather than wrong, to say so.
Fourth - I want to finish with some ideas about how to make things better
Despite all I have just said, I don’t want to be too apocalyptic about any of this.
My uninformed guess is that, relative to our peers, our legal system is second or third quartile in terms of how it operates. Certainly not awful - but not nearly as good as we kid ourselves. But there is ample room - and possibility - for it to improve.
Three specific suggestions.
First, the rule that the loser pays the winners costs is much too rigid.
The rule exists for good reason. Without it litigation can be used to deprive people of their legal rights. If you are forced to sue to recover money you are owed and you cannot reclaim the costs of suing then the law does not deliver justice. If you are forced to defend a hopeless lawsuit and you cannot recover the costs of your defence your pursuer can use litigation to harm you even if the law is not on their side.
But if the rule is applied too rigidly, it can mean that justice is avoided and not done. If I cannot afford the risk of defending myself against a rapist who threatens to sue me unless I apologise for naming him that does not serve justice. If I cannot afford to assert my legal rights because of the risks of losing them, they are not, except in a theoretical sense, my rights at all.
Resolving these tensions is not a matter for today. What is a matter for today is recognising that there are tensions to resolve.
Second, we need to take an interest in the outcomes that particular judges deliver.
The power exercised by the judiciary is such that - even if it was your heartfelt belief that taken as a whole they are uniquely blessed with kindliness, wisdom and equanimity - even then you might still think it wise systematically to monitor their actions just, you know… just to be sure.
The law requires large employers to produce and then publish their gender pay gap. It does this, in part, to pose questions to employers about why their figures look like they do. Perhaps there are good and satisfactory answers - but without the production of the data they might never think to ask. And the publication of the data serves another purpose - it enables employees to interrogate the system,
There is no reason why we should not produce equivalent data for judges. Sometimes the data will only serve the purposes of asking questions about outlier judges. If the data shows that a particular judge is more likely to arrive at a particular outcome than their judicial colleagues, shouldn’t they know? Might it help them gain awareness of the possibility of biases in their conduct? Might that data form part of the interrogation of whether they should be promoted up the judicial ladder?
Kick their tyres and well-worn aphorisms about the law often reveal themselves to be expressions of what Gramsci would have called the cultural hegemony. They are part of the way in which those with power hold it to themselves and to their benefit. They amply justify the political theorist and philosopher Judith Shklar’s acid observation that the ‘rule of law’ has:
“become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.”
Those, and I number myself amongst them, who would like to fend off that powerful criticism do so best by muscular engagement with what the law and judges do, and how and why, rather than an intellectually demeaning mixture of Victorian paternalism and thoughtless indignation. If the conduct of the law is to remain more than empty performance of our own sense of virtue these questions cannot be dodged.
My final point is this.
We have our share of virtues, us barristers, but qualifying as a barrister is expensive and so we tend towards the privileged and we tend towards the conservative. Judges are overwhelmingly drawn from the bar and if you want to become a judge you know you have to keep your head down. So they become the most conservative members of a conservative profession. Not, taken as a class, a group well equipped to interrogate its privilege.
And we are not hugely diverse in other ways. In England and Wales there are 1,417 salaried judges - those who have decided to become a judge permanently. Of those 1,417, the number who are Black or Black British is… eleven. This is quite a big jump from when I last checked, several years ago, when the equivalent number was four. But it remains very poor. And after the departure of Victoria McCloud I don’t think there is a single salaried trans judge in the UK, certainly not one who is out.
If we want people to have confidence in the law - and we say we do - and if we want the law to deserve the confidence we invite people to repose in it, I think we need to return to an idea Sadiq Khan pushed when he was Shadow Justice Minister, of quotas.
So, to conclude, we need to revisit our costs rules to ensure that they serve justice not money. We need to monitor what judges do - they do not live on some higher moral plane - they are prone to the same biases as everyone else. And we need to care who judges are - not just to rend our cheeks and wail about the deplorable state of the judiciary - we need concrete steps to fix the problem.