REMARKS BY PRESIDENT McALEESE AT THE OPENING OF THE LAW SOCIETY OF ENGLAND & WALES CONFERENCE
REMARKS BY PRESIDENT McALEESE AT THE OPENING OF THE LAW SOCIETY OF ENGLAND & WALES CONFERENCE ON "LAWYERS' INDEPENDENCE..."
Bishop Urquhart, Distinguished Guests, Ladies & Gentlemen.
I thank the Law Society for hosting this debate and for inviting me to give the opening address. Quite an act of generosity considering I chose the other branch of the legal profession, a fact I hope you will not hold against me - I was young and impressionable at the time.
I have the highest regard for the work of the Law Society and, indeed, spent a large part of my career involved in the professional formation of solicitors as Director of the Institute of Professional Legal Studies, at Queen’s University in Belfast. That work brought me into direct and regular contact with the Law Society of England and Wales so I am in fact, by a circuitous route, back among old friends.
We are dealing this afternoon with a vexed contemporary question – striking the balance between national security and the rule of law and contemplating the role played by lawyers in that complex interplay.
Over the years of the “Troubles”, lawyers on these islands have dealt on a daily basis with the issues in question here today. Some of them paid a cruel personal price for maintaining their independence and for insisting that respect for even the most calumnified defendant’s human and civil rights is a signature value of the very rule of law itself. Absent clear-sighted and steady adherence to that value, the rule of law runs the danger of becoming hollowed out, becoming a husk with nothing inside to feed the individual or collective conscience with a healthy moral diet but enough contradictions to feed cynicism and alienation. Consistency in showing respect for the human person is a key value and key test of the credentials of the rule of law.
Terrorism does exactly the opposite. Terrorists value their own cause so highly that the rights and suffering of the individual are of no emotional or moral consequence to them except as a means to their own ends. We are rightly aghast at their easy contempt for the men, women and children from whom they so cruelly take life, health and peace of mind.
This city has its own harrowing stories to tell and we have all directly experienced the impact on our lives of changes in laws, practices and procedures driven by enhanced security consciousness and a desire to close down the space in which terrorists can easily operate. Ireland, North and South, has faced such dilemmas and responded over the years in a variety of ways. Both have had historic experience of internment without trial, of special juryless courts, of emergency legislation which increased police powers and of changes in the laws of evidence. These things, justified by reference to the overarching concern for national security, have impinged on the rights of the individual. While the vast majority of citizens continue their everyday lives largely unaffected, it is the very individual whom the lawyer encounters whose experience points up the extent to which civil liberties and human rights have been properly or improperly rendered vulnerable in the interests of security. I don’t need to rehearse to this audience names like Annie Maguire, the Guildford Four, the Birmingham Six to point up the tragic consequences of that vulnerability for individuals and systems.
We expect the public to express fear and outrage in the teeth of terrorist violence but we also expect that our legal and political systems will respond in a more collected and considered way, with a distilled and robust wisdom of ages that safeguards individuals both from having their rights and very humanity obliterated by terrorists and from having those same rights and that same humanity sidelined by legal and political systems under tabloidised pressure or moral panics. It is into that tight spot between the noisy clamouring world, the world of an understandably angry public and the more reflective confines of the courtroom that an independent legal profession performs, well or badly, probably its noblest role. It is in articulating a determined adherence to the rule of law along with a determined adherence by the rule of law to basic and inviolable precepts of human rights that lawyers perform that essential duty. They are a crucial part of the checks and balances which keep our free, egalitarian, democracies precisely that, free egalitarian democracies, where trite stereotypes of race, religion, gender, etc, do not create the hazardous faultlines that make a two-tier society. As the rule of law stretches and strains under pressure to respond to terrorism, the greatest victory for the terrorist would be if the rule of law were itself to collapse the carefully constructed, hard-won rights and freedoms of the individual which are the very seed-bed of its legitimacy and the air that true justice, true freedom, breathes. What if, in response to our horror at the contempt terrorists have for the individual, we as a society, as a political and legal system, become ourselves careless of that individual’s rights?
Lawyers have choices. To be courageous champions of a rule of law which never loses sight of the individual no matter what and to stand, often lonely and misunderstood in the role of vindicator, judge or advocate for the despised, or to simply be operators of whatever the system decides, like the death camp soldiers, the obeyers of orders without whose help husks cannot be hollowed out. What if no-one defends grand principles? What if only silence greets the use of power to diminish those principles? A question posed by Richard Abel strikes me as appropriate “Under what circumstances does law check power?” he asks. “That it can do so at all reflects the fundamental contradiction of liberalism. Law is simultaneously rule and politics, ideal and reality, neutral and partisan, above the fray and in the midst of it.”
And that is precisely where lawyers stand - not in the least neutral about the rule of law - passionately partisan in its defence, so passionate, that in the middle of the fray and fury, they stand above it, strong and independent advocates for its protection and its vindication which is tested and showcased in how it deals with the individual.
The institutional independence, professionalism and, indeed, courage of lawyers are prerequisites for ensuring that the fundamental grand principles and guarantees that make up the rule of law flourish and triumph precisely when they are most under strain. They are the sacred custodians who ensure that the thing which is the very test of them does not trip them into failing that test.
Pat Finucane and Rosemary Nelson, two brave defence solicitors who believed passionately in the rule of law were brutally murdered in circumstances yet to be fully clarified but you can be sure that what stuck in their murderers’ craw was not some skewed or conveniently-invented belief that the solicitors were the mouthpieces of the alleged terrorists they defended but rather that they were awesomely, miraculously, stunningly, independent and unafraid.
There will always be tensions in our world between the freedom afforded to the individual and the need to protect that individual and all other citizens from the caprice of the terrorist. But the rule of law is itself a hard-earned line of defence, a barricade, a buttress, against all kinds of caprice and not just that of the terrorist. Under its protective roof the individual and society shelter and we who live in democracies shelter there because we trust. Chief Justice Gleeson of the Australian High Court coined it well when he said “the rule of law is not enforced by an army. It depends instead upon public confidence in lawfully constituted authority”.
The rule of law and national security are not opposing forces, nor are they in any sense, mutually incompatible. In fact the very opposite. What we can say with some confidence is that the rule of law is a potent weapon in the fight against terrorism. Combined with robust security measures they are two pillars in a structured response to that evil. That they are complementary, in balance, replenishing and not leaching away public confidence, that is for you and the courts to help the public to safeguard.
No matter how difficult, we have to get them and be seen to be getting them into the right relationship for both to work effectively. Widespread respect for and faith in the rule of law is the basic building block of our democracies, a sine qua non of their very existence. Real security, real democracy, whether nationally or internationally, is unlikely to be well served by cutting corners off the rule of law. The UN Millennium Declaration pledges that States will “spare no effort to free our peoples from the scourge of war, whether within or between States...” It is very telling that the very first action point to meet this goal is a resolve to “strengthen respect for the rule of law in international as in national affairs”. Lawyers are waking up to the remarkable role they can play in local and global stewardship of the rule of law and it is very reassuring to see lawyer networks growing nationally and internationally with a particular focus on this issue.
The rule of law is not a guarantee of our security but it is the guarantee of our freedom. Good citizens in all our jurisdictions exhibit considerable patience, compliance and understanding when faced with the restrictions that enhanced security measures demand. They do so not simply because they feel safer but because they know that the rule of law carries responsibilities as well as rights and active citizenship is a profound responsibility that may from time to time mean living with reduced freedom but never, never with reduced humanity.
Survival of the rule of law in each generation is not guaranteed. Its dessicated fragments litter the vile first half of Europe’s twentieth century and its absence or worse still its bogus impersonators in so many parts of the world threaten our global stability. Wherever it exists, it was hard earned and is as precious as it is fragile. Guard it well.
Thank you.