The Judicial Role

The adversarial system fits perfectly with the rule of law based on formal legality. It underpins the structural independence of lawyers and judges from the machinery of the state and provides a platform for the institutional separation of powers^[33] and the rule of law.^[34] From this position, the judiciary and legal profession are strongly placed to control government powers and restrict government immunities.^[35]

A.

Locke conceived of a social contract based on the state’s promise to respect individual autonomy in return for the citizen’s observance of positive law.^[36] Restraints such as bills or declarations of rights are only flimsy protections against state power. Judges have a primary responsibility for limiting the state. They must follow the example of Chief Justice Coke who, in 1610, asserted that James I had no extra-legal or personal prerogative. Even a king could not judge cases personally because he was not versed in the ‘artificial reason and judgement of the law’.^[37] Confidence that judges can fulfil this constitutional role, without being influenced by other organs of state, hinges on the separation of state powers.

B. The Judicial Role

i. Maintaining the Separation of Powers

The traditional conception of the division of constitutional roles under the doctrine of the separation of powers was expressed by Lord Mustill in 1995:

Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers con­ferred on it by law. The courts interpret the laws and see that they are obeyed.^[38]

Prior to the Constitutional Reform Act 2005 there was considerable doubt that the structure of the state supported the effective separation of powers.^[39] The Act addressed the central criticisms, most notably by confining the Lord Chancellor to an executive role, transferring his judicial functions to the Lord Chief Justice and relocating the highest appeal court from the House of Lords to a new Supreme Court.

Under the Constitutional Reform Act the Lord Chief Justice became President of the Courts of England and Wales, with the exception of the Supreme Court.^[40] The Lord Chief Justice was given statutory authority to lay before Parliament any representations about the judiciary or administration of justice.^[41] In another act of separation, a Judicial Appointments Commission was created^[42] replacing the process whereby the Lord Chancellor selected judges following confidential and informal con- sultations.^[43] Although the Lord Chancellor was no longer required to be a lawyer,^[44] the Act imposed an obligation on him to support the effectiveness of the court sys- tem^[45] and uphold the independence of the judiciary.^[46]

The elaborate measures introduced by the Constitutional Reform Act were intended to safeguard the judicial role in checking the activity of the other constitutional powers. Any conflict between the judiciary and legislature would ultimately involve the Supreme Court, established in 2009 to assume the judicial function of the senior appeal court in the UK.^[47] This step removed judges who had formerly sat as life peers in the House of Lords from the legislature, with the intention of increasing transpar­ency and the appearance of independence of the superior civil court of appeal.^[48] With this in mind, the Supreme Court was sited near to, but outside of Parliament, with one of the Justices as President.^[49] Supreme Court Justices were to be appointed by the President and Deputy President and a representative of one of the judicial appointment committees for the three jurisdictions in the UK.

The close relationship of the executive and legislature places responsibility on the judiciary to resist erosion of the separation of powers. The physical separation of judicial institutions from government and administration provides some insulation from day to day pressure or influence.

The Justices are to a large degree self-regulating, the President having statutory power to create Supreme Court rules.^[51] The true test of the judiciary’s success in main­taining the separation of powers arguably lies in its record on holding the executive and Parliament to account. The scope of this role can be summarised as the defence of the rule of law.

ii. Formulation and Defence of the Rule of Law

a. Controlling Abuse of State Power

The judiciary has, both historically and more recently, invoked the rule of law when controlling government. An early example of court control of state power occurred in 1765, in Entick v Carrington.^{[52] [53] The defendant was authorised by the Secretary of State to conduct a search of the plaintiff’s property for papers evidencing seditious libel. In an action for trespass the defendant claimed that he}

held himself bound by his oath to pay an implicit obedience to the commands of the secre­tary of state; that in common cases he was contented to seize the printed impressions of the papers mentioned in the warrants; but when he received directions to search further, or to make a more general seizure, his rule was to sweep all.

The court said that, if, the power was so broad ‘one should naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant... If it is law, it will be found in our books. If it is not to be found there, it is not law’. The court decided that there was no authority to ‘sweep all’ and the defendant was liable in trespass to the plaintiff. The responsibility to check the executive survives in modern jurisprudence.

Ministers and public officials may only act prospectively, so government cannot deprive citizens of accrued rights.^[55] In Congreve v Home Office,^{[56] [57] for example, the claimant was one of many viewers who tried to avoid an increase in the television licence fee by purchasing a new licence before the old one expired. The government tried to revoke all such renewals. The Court of Appeal held that it was an improper exercise of the Minister’s discretionary power to revoke a licence validly obtained.}

The courts also ensure that the powers of the state are used fairly. In R v Rimmington^6x a defendant’s private joke, sending some salt in a letter to a friend containing a cheque, backfired. He was charged with public nuisance when the postal sorting office mistook it for anthrax. Overturning the conviction, Lord Bingham said that conduct forbidden by law should be clearly indicated, so that a person is capable of knowing what is wrong before he does it. No one should be punished for doing something which was not a criminal offence when it was done.

The courts also ensure that government does not interfere in the exercise of powers it has delegated to others. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council,^[58] the government tried to stop a new Conservative local council from adapting the former Labour council’s plan for comprehensive schools by retaining grammar schools. The House of Lords held that it had no power to do so, unless the proposed conduct was that ‘which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt’.^[59] These cases illustrate the ways in which courts have defined the powers of the state by invok­ing the rule of law.

b. Failure to Exercise Adequate Control

There are examples of where the judiciary has not been sufficiently vigilant in pro­tecting rights and the state has abused its power. In McIlkenny v Chief Constable of the West Midlands,^[60] for example, men convicted of a terrorist bombing had claimed that confessions were extracted by torture. While the men were serving prison terms, the Court of Appeal halted their civil action for assault against the police because, it said, the allegations were too serious to be believable. The men were, much later, exonerated.

In Gillan v United Kingdom^[61] police stopped a couple under anti-terrorism legisla­tion. One was wishing to protest against an arms fair, and the other was a journal­ist intending to film the demonstration. Both were detained and the journalist was ordered to stop filming. The courts unanimously upheld the right to stop and search, which were used to interfere with the right to protest. The European Court of Human Rights held that the detentions violated the right to respect for private life under the European Convention on Human Rights 1950, Article 8.

c. Subverting the Rule of Law

Allegations that judges are sometimes political in their role have re-surfaced recently in relation to the Profumo scandal. In 1963 John Profumo resigned as a Conservative Minister over lies he told to the House of Commons about a brief affair with Christine Keeler, an alleged call-girl. A recent book by Geoffrey Robertson QC sug­gests that the prosecution of a friend of Keeler, Stephen Ward, for living off earnings of prostitution was a politically motivated witch hunt.^[62]

The prosecution of Ward was allegedly driven by the Home Secretary, with the active support of senior judges, in a spirit of ‘Christian solidarity’. The prosecution apparently knew, but did not reveal, that Keeler, on whose evidence Ward’s convic­tion hinged, was a liar.

d. Control of the Legislature

Despite occasional tension between the judiciary and the executive, there is less conflict between judiciary and legislature. The judiciary tends to cast itself in a partnership role, ensuring that legislative intent is realised. In fact, if a test of judicial independence lies in the right to invalidate legislation, the Supreme Court has lesser powers compared with superior courts in other advanced states. It can overturn secondary legislation it finds to be ultra vires, but not primary legislation. In interpreting legislation, however, the rule of law is a powerful tool in divining the intention of the legislature.

In R r Secretary of State for the Home Department, for example, Lord Steyn said that ‘unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural’.^[63] This principle is illustrated in Ghaidan v Godin-Mendoza^[64] where the House of Lords reinterpreted the Rent Act 1977 in such a way as to protect homosexual couples. It was said that to do otherwise would be discriminatory and that ‘discriminatory law undermines the rule of law because it is the antithesis of fairness’.^[65]

In common with some other courts, the Supreme Court can make a declaration that primary legislation is incompatible with the Human Rights Act 198 8.^[66] While this does not invalidate the legislation, Parliament usually does, but is not required to, make amendments to it.^[67] Despite the restrictions on judicial power, the Human Rights Act represents a ‘higher law’ than the domestic law. Judges have been active in upholding the rights of suspected terrorists against executive action and legislative provisions.^[68] In future the judiciary may regard it as its duty to defy legislation on the issue.^[69]

The combined effect of the Human Rights Act and the Constitutional Reform Act is to strengthen the legitimacy and authority of the judiciary. These Acts could ulti­mately lead to a codified constitution in which the judiciary is given formal powers to override legislation that does not conform to defined constitutional principles. In the meantime, the limit of judicial power is unclear. Could, for example, the Supreme Court strike down action that conflicts with the rule of law, such as legislation that removes a sphere of executive action from judicial review? ^{[70] [71]}

In Jackson and others v Attorney General,¹⁵ the House of Lords cast doubt on whether parliamentary sovereignty was an absolute constitutional principle. Some of their Lordships said that it was a doctrine of the common law that could be changed by the judges. As to whether there is a supreme principle, Lord Hope said that ‘[t] he rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’.^[72]

The absence of formal powers under the Constitutional Reform Act means that the scope of judicial responsibility for defending the rule of law against the legisla­ture is unclear. Lord Bingham found evidence both in favour of the supremacy of Parliament; for example, the Human Rights Act makes clear that the courts cannot declare legislation in breach of the Act because that would breach sovereignty. He also saw evidence of the supremacy of the rule of law in the decision of the House of Lords in R v Secretary of State for Transport, ex p Factortame Ltd (No 2) to Mis­apply’ UK legislation applying to part-time employees because it violated an EU directive.^[73]

The Factortame decision briefly invited the conclusion that the House of Lords was setting itself up as a constitutional court.^[74] In common with most commentators, however, Bingham concludes that parliamentary sovereignty always prevails. This means that the British Parliament can legislate to infringe the rule of law or human rights. To do so would, however, invite conflict with the judges and could precipitate a constitutional crisis.^[75]

iii. Maintaining Public Trust in the System of Justice

The judiciary has primary responsibility for maintaining public trust in the system of justice. This responsibility has at least two dimensions, reflected in the code of ethics, the Supreme Court Guide^[76] (the ‘Guide’) adopted by the senior court, which is similar to that applying to judges in other UK courts.^[77] The first dimension is to uphold the designated constitutional role. The statement in the Guide that the ‘judiciary of the United Kingdom have been independent of the government since at least the early 18th century’^[78] can be seen as a claim for legitimacy for the judicial role in maintain­ing and defending the rule of law. The second dimension of maintaining public trust in the justice system is the demonstration of proper conduct in the handling of day to day matters in the courts.

C. Judicial Ethics

The ethics of a judge under a system based on the formal version of the rule of law is based on the six ‘values’ of the Bangalore Principles of Judicial Conduct. This code is endorsed by the United Nations Human Rights Commission in 2003 and was published with a commentary in 2007. It set out widely accepted standards for the conduct of judges. They are judicial independence, impartiality, integrity, propriety, competence and diligence.

i. Independence

The independence of judges is seen as fundamental to good government^[79] and, accord­ing to the Supreme Court Code, ‘a prerequisite to the rule of law and a fundamental guarantee of a fair trial’.^[80] There is potential overlap between the requirements of independence and impartiality. Separation from the other organs of state may best be seen as a collective dimension of the condition of judicial independence. This could mean, for example, that judges should not be trained by the state, work with state officials or be too aligned with state institutions.

Freedom of thought, of a kind necessary to bring an open and unbiased mind to hearing cases and making decisions, is the personal dimension of independence.^[81] Both kinds of independence are required for judicial decision-making. It is presumably this distinction referred to by the Guide when it states that ‘[a] judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects’.^[82] This section addresses the institutional aspect of independence.

The independence of the judiciary from executive influence is underpinned by the Constitutional Reform Act 2005. The Act explicitly provides that ‘[t]he Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary’.^[83] It continues by providing that ‘the Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary’.^[84] The Lord Chancellor must have regard to the need to defend judicial independence.^[85]

The House of Lords Select Committee on the Constitution speculated on whether this duty went far enough. The Select Committee mischievously asked whether the duty not to influence applied to ‘Ministers who publicly ask for judges to be tough on suspected terrorists, or who threaten the courts with the prospect of amending legislation if they do not give effect to government policy?’ It also wondered ‘[h]ow substantial is the duty placed by Section 3(6) on the Lord Chancellor to have regard to... the need to defend that independence?’,^[86] whether it went go beyond the duty to uphold judicial independence and, if so, how.

ii. Impartiality

a. The Impartial Disposition

Independence from state control is necessary before a judge can be said to be impar­tial, but it is not sufficient. Impartiality reflects the attitude to a particular case of a specific tribunal. To achieve this, judges must be independently minded, rationale, dispassionate and able to ignore every other opinion. It is fundamentally important in delivering the protection of minority rights and interests that are the promises of liberalism. Judges must be able to assume a neutral disposition towards an issue, uninfluenced by their own beliefs, the establishment or popular opinion. Therefore, the Guide provides that:

The Justices must be immune to the effects of publicity, whether favourable or unfavourable. But that does not mean ignoring the profound effect which their decisions are likely to have, not only on the parties before the Court, but also upon the wider public whose concerns may well be forcibly expressed in the media.^[87]

To this end, Supreme Court Justices swear a judicial oath, stating: ‘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’.^[88] The apparently clear promise of the judicial oath is not as easy to deliver as first appears.

b. The Scope for Judicial Law-making

A system of formal legality demands that judges are not just rational, neutral and dis­passionate. They must be predictable. The theory of the rule of law pre-supposes that law is fixed and certain and that judges merely apply the rules to reach their decisions. In the 1930s the legal realist movement demonstrated that judges brought their own values to judicial decision-making. Recognition that law was malleable in the hands of judges led to suggestions that the rule of law was a sham.

Critics on the left, like Roberto Unger,^[89] echoed the critique of those on the right, like Dicey and Hayek,^[90] that the growth of social welfare legislation demanded more interpretation by judges. Applying open-ended concepts, such as fairness or reason­ableness, would lead different judges to diverse conclusions. This undermined law’s certainty and precision, that is, its determinacy. According to the critics there could be no rule of law without predictability of outcome. British judges did conform to a conventional, passive role until the mid-1950s. Thereafter, it began to be acknowl­edged that judges filled in the legislative gaps left by Parliament.^[91] By the 1990s the growth of judicial review had given rise to a culture of ‘judicial activism’ whereby judges began to act as policy-makers.

c. Judicial Activism

Tamanaha argues that the increased space for judicial interpretation is potentially dangerous; ‘if judges are seated on the bench who have few qualms about exploiting the indeterminacy of law to favour personal of political objectives, the law is defence- less’.^[92] The main hope that judges will faithfully apply the law lies in their commit­ment to a legal tradition in which the rule of law is central. This development was arguably fuelled by the use of courts to create law in controversial areas, like abortion, rather than to legislate. In reviewing executive action, judges might ‘refuse to counte­nance behaviour that threatens either basic human rights or the rule of law’.^[93] A crisis point occurred in the 1990s when Tory politicians suspected that political opponents among the judiciary were using the power of review to block reform.

In 1998 Lord Woolf sought to defuse a situation in which the judiciary was seen to be acting against the state. He asserted that it was the constitutional role of the judiciary to ensure that effective checks operated in the constitution.^[94] In fact, judi­cial activism may be a global trend, but, in the UK, the degree of activity seems to respond to increases in administrative activity.^[95] Lord Woolf later conceded that, when parliamentary opposition to the Thatcher and Major Governments was weak, the judges’ scrutiny of executive action was more rigorous.^[96] Latterly, perceptions of judicial activism may well be fuelled by parliamentary attempts to devise standards for controlling the executive.^[97] This inevitably provides material and scope for judicial interpretation.

It is currently unclear how the judiciary should defend the rule of law while main­taining impartiality. Which issues are constitutional and which political? The Prime Minister’s recent proposal to exclude some categories of judicial review,^[98] and make all such cases more difficult to bring,^[99] is a case in point. Judges are increasingly likely to speak out on issues such as human rights. For example, Lord Neuberger, President of the Supreme Court, attacked the home secretary for criticising judges’ decisions against the government in human rights cases.^[100] The use of judicial review to control the executive has made the issue of political affiliations more relevant.^[101]

d. Political Affiliation

In addition to impartially applying the law, it is arguable that judges must be seen to be impartial.^[102] They should maintain a neutral persona and be free of bias towards or against any cause, group or party to a case.^[103] This behaviour is critically important to maintaining faith and confidence in the rule of law. If ‘the rule of law, not man’, is to be meaningful, judges must embody the law, demonstrating the qualities inherent in the legal system. To avoid the appearance of bias it is often regarded as important that wider affiliations and political sympathies are concealed.^[104]

The courts in England and Wales have adopted a fairly closed approach to the issue of judicial bias. A rare exception was Re Pinochet (No 2), in which the House of Lords overturned its own judgment on the grounds that there was an appearance of bias.^[105] The case concerned attempts to extradite a politician accused of human rights abuses in Chile. Their Lordships overturned their own decision that Pinochet was not entitled to immunity. The grounds were that one of them was a member of Amnesty International, which organisation had been given permission to intervene in the case. After Re Pinochet (No 2), the House of Lords moved to close down the possibility of a surge of similar applications.

In Locabail (UK) Ltd v Bayfield Properties Ltd, the House of Lords restricted the potential for disqualification of judges to cases where there is a real likelihood or danger of bias.^[106] This apparently closed the door on disqualification for appearance of bias, potentially making it more difficult to detect or correct for the risk of bias. It arguably led attention away from the possibility of individual challenges for judicial bias and towards measures to ensure greater diversity in the judiciary.^[107] This aim was advanced by the creation of the Judicial Appointments Commission.

e. Transparency

The suppression of affiliations may sometimes be insufficient to allay suspicion of bias, particularly when membership of an organisation seems inconsistent with the proper administration of justice. An example is membership of the freemasons, a semi-secret society in which members pledge to assist fellow masons. There is suspi­cion that judges who are freemasons may be unable to judge other freemasons fairly. A step towards transparency on the issue was taken in 1997, when the Home Affairs Select Committee demanded to know which judges were freemasons. The judiciary objected strongly and a compromise was adopted in 1998 whereby new judges declared membership on a register. This practice was abandoned in 2009 after suc­cessful appeals by Italian judges to the European Court of Human Rights against an obligation to declare freemasonry.^[108] It is difficult to see how this is consistent with the avoidance of perceived bias.

iii. Integrity and Propriety

The Guide provides that judges must not accept gifts, lend their prestige to advance private interest or reveal any information gained through judicial activity in any other context.^[109] The Guide goes on to state more generally, that judges

will try to avoid situations which might reasonably lower respect for their judicial office, or cast doubt upon their impartiality as judges, or expose them to charges of hypocrisy. They will try to conduct themselves in a way which is consistent with the dignity of their office.^[110]

It is particularly important that judges convey a polite and neutral demeanour in car­rying out their official role. The Guide provides that:

In Court, the Justices will seek to be courteous, patient, tolerant and punctual and to respect the dignity of all. They will strive to ensure that no one in Court is exposed to any display of bias or prejudice on grounds such as race, colour, sex, religion, national origin, disability, age, marital status, sexual orientation, social and economic status and other like causes. Care will be taken that arrangements made for and during a hearing do not put people with a disability at a disadvantage.^[111]

In the few cases in which judges fail to meet these standards they may be removed from the case.^[112]

Difficult situations inevitably arise when judges consistently fail to meet prescribed standards. In order that judges are in a position to exercise effective control over government they cannot be vulnerable to pressure or removable on a whim. They are therefore protected from civil action in respect of ‘any act done by him in his judicial capacity, even though he acted oppressively and maliciously, to the prejudice of the plaintiff and to the perversion of justice’.^[113]

Judges have secure tenure. They are required to retire at the age of 75, or 70 if first appointed to a judicial office after 31 March 1995. Justices may only be removed from office on address by both Houses of Parliament.^[114] The Lord Chancellor has power to dismiss more junior judges and tribunal chairs after following prescribed procedures. Judicial office holders can however be warned, reprimanded or suspended (under prescribed circumstances) by the Lord Chief Justice.^[115] Removal from protected judicial offices can only take place after a hearing by a specially convened tribunal.^[116] The office of the Judicial Appointments and Conduct Ombudsman investigates com­plaints against judges.^[117]

In addition to enjoying secure tenure, judges also enjoy immunity from actions in tort or other civil proceeding arising from acts in their judicial role.^[118] This right can be traced to the immunity claimed to derive from the divine rights of monarchs. Recently, it has been argued that such immunity should be available only on a quali­fied basis.^[119] The argument is that, in principle, judges should be potentially liable for the tort of misfeasance in public office for judicial acts motivated by corruption.

iv. Competence and Diligence

The Lord Chief Justice is responsible for the training, guidance and deployment of judges. In addition to undertaking any prescribed training, judges have personal responsibility for keeping up to date with practice in their areas of work.^[120] The duty of diligence demands steady and careful application to the task at hand.

V. The Lawyer’s Role

Weber perceived that legal systems were determined not only by political and cultural factors, but by the needs and preferences of stakeholders such as lawyers. He saw a professional group of lawyers as a key factor in the development of a rational system. Weber argued that values only become rules when adopted in the intellectual system devised by such groups. After the rules have been formulated, professional lawyers are necessary in order to maintain the unique skills and modes of thought that character­ise the system. To Weber the independence of lawyers from political and other influ­ence were essential to the autonomy, generality and universality of law as a system.

A. Lawyers and the Rule of Law

Lord Bingham considered an independent legal profession to be ‘scarcely less impor­tant’ to maintaining the rule of law than an independent judiciary.^[121] This was partly because the production of independent judges committed to legality depends on the existence of a profession committed to the same goals. In addition to being schooled in the traditions of legality, lawyers have a separate and distinct duty to the rule of law that is intrinsic in their role. Therefore, the ascendancy of the rule of law assumes ‘a legal profession sufficiently autonomous to invoke the authority of an independent judiciary’.^[122]

Because judges in the common law tradition take the role of a neutral umpire, it falls to lawyers to present the case for the parties. This offers lawyers a role as ‘the fearless advocate who champions a client threatened with loss of life and liberty by government oppression’.^[123] This role places in ethical balance the legal profession’s two basic affiliations; to clients and to the judiciary. These affiliations are reflected, in the case of clients, by the key ethical obligations of loyalty and confidentiality and, in the case of the judiciary by the duty of candour to the court.

B. The Standard Conception of the Lawyer’s Role

The standard conception of the lawyer’s role is a model proposed and developed by academics, mainly moral philosophers, in the US.^[124] It is based on an interpretation of the American Bar Association model code, case law and other materials. The standard conception provides a clear and simple description of how the role of lawyers in soci­ety is manifest in responsibilities towards prospective clients and actual clients. While it is contentious, even in the US, it is an important starting point for analysis. Most dis­cussions of professional legal ethics assume the relevance of the standard conception.

The standard conception comprises two overarching principles, neutrality and par­tisanship. The principle of neutrality demands that lawyers present cases on behalf of unpopular causes or those they disagree with morally. The principle of partisanship demands that they follow their client’s instructions so far as the law allows, even if this produces unjust outcomes. The first two principles of the standard conception are supported by a third, the principle of non-accountability. This suggests that, pro­vided lawyers observe the principles of partisanship and neutrality, they are absolved of personal moral responsibility for the consequences of actions on behalf of clients. This is on the grounds that the role they perform is itself good.¹²⁹

i. The Principle of Neutrality

The purest practical expression of the obligation of neutrality is a duty not to select clients. The importance of this principle flows from the imperative of representation. Neutrality ensures that every accused person has a champion because lawyers can act for unpopular clients without being associated with their cause. This increases social goods such as civil liberties and human rights. Success in individual cases, albeit for unpopular causes, produces a culture of rights which promotes the general welfare of society as a whole. This demonstrates the reality of the liberal promise to tolerate difference.

The second element of neutrality requires that lawyers are emotionally detached from their client’s purposes. They focus on the legal merits of the case, offer dis­passionate advice and resist emotional involvement with the client.¹³⁰ They should be indifferent regarding the final outcome of litigation because, otherwise, they may become excessively zealous and self-righteous or over-involved in their client’s cause.¹³¹ This may be contrary to their clients’ interests. The mind that is independent of ties and conflicting interests can see the whole picture objectively and is more likely to offer wise advice.¹³²

ii. The Principle of Partisanship

Partisanship fulfils the liberal promise to respect individual rights, and the dignity of the individual, by providing a ‘champion against a hostile world’.¹³³ The need for

Wisconsin Law Review 29; D Luban, Lawyers and Justice: An Ethical Study (Princeton, NJ, Princeton University Press, 1988).

¹²⁹ See esp Schwartz, ibid, and Luban, ibid.

¹³⁰ TJ Johnson, Professions & Power, (London, MacMillan, 1972) at 36; V Denti, ‘Public Lawyers, Political Trials and the Neutrality of the Legal Profession’ (1981) 1 Israel Law Review 20.

¹³¹ RE Rosen, ‘On the Social Significance of Critical Lawyering’ (2000) 3 Legal Ethics 169, at 170.

¹³² Kronman, Lost Lawyer (n 14) at 144.

¹³³ M Freedman, ‘Are there Public Interest Limits on Lawyers’ Advocacy?’ (1977) 2 Journal of the Legal Profession 47.

such a champion is acute where the individual is pitted against the power of the state, as in criminal cases. It can be just as important in areas like immigration or asylum. It is often argued that citizens should mistrust the power of the state because of the many ways in which it can be abused. Therefore, critics argue, partisanship demands that lawyers do not seek a fair result, or try to find the truth, or explore compromise between the parties.

According to some of the US literature, lawyers are there to defend a client’s rights, even when they consider their goals to be unjustified, and regardless of harm to oth­ers.^[125] They must not compromise their zeal in cases that challenge the establishment or a powerful force. In fact, powerful opponents demand more of lawyers, because the lawyer ensures equality of arms. In the early-nineteenth century, for example, a lead­ing advocate threatened to discredit the king and ‘throw the kingdom into confusion’ for his client’s sake.^[126]

The partisan disposition, which guards against lawyers’ co-optation by third par­ties against their clients’ interests, is reflected in the most fundamental principles of lawyers’ ethics, such as confidentiality. In the eighteenth-century case, Annesley v Anglesey, for example, it was said that (i) a ‘gentleman of character’ does not disclose his client’s secrets; (ii) an attorney identifies with his client, and it would be ‘contrary to the rules of natural justice and equity’ for an individual to betray himself; and (iii) attorneys are necessary for the conduct of business, and business would be destroyed if attorneys were to disclose their communications with their clients.^[127]

iii. The Principle of Non-accountability

An important restraint on the principle of partisanship is the requirement that the client’s goal must not be an illegal purpose and does not require illegal means. Some critics of the standard conception suggest that an obligation to pursue client goals all the way up to the limit of the law, justifies acts that are legal but morally dubious.^[128] This might include taking advantage of loopholes in the law, mistakes by the other side or grey areas in legal ethics.

Such renderings of the standard conception create a morally ambiguous role for lawyers. Neutrality, an obligation not to refuse clients, gives lawyers cases that they do not believe in, and partisanship forces them to vigorously pursue ends they do not agree with. The perception that lawyers are no more than ‘guns for hire’ can generate a cynical and sometimes hostile public opinion, particularly when a lawyer helps free a criminal or achieve a corporation’s anti-social purpose.

C. The Critique of the Standard Conception

Academics in key common law jurisdictions have criticised the standard conception on a number of grounds. They argue that it requires lawyers to follow clients’ immoral instructions, provided they are within the law. Consequently, the professional role requires them to represent a position they do not believe to be true, which is deceitful. The critics then argue that the standard conception requires that lawyers act in their client’s interests, using tactical delay if necessary, which is tantamount to cheating.^[129] This denies lawyers their right to exercise ethical discretion and may produce out­comes that some see as immoral.

Critics of the standard conception further argue that lawyers’ ethics extend the rationale for such consequences from the criminal trial, where there may be some justification, to other contexts, where there is no justification. They suggest that the immorality at the heart of professional role distorts lawyers’ ethical judgement, so that they are not attuned to behaving ethically.

Academics arguing for change in the professional ethics of lawyers suggest that the standard conception of the lawyers’ role is not justified by the social role lawyers per- form.^[130] Not only is it intrinsically wrong for a profession to compromise professional values, like honesty and integrity, it is unprincipled to justify this position based on a reading of the role in relation to the adversary system, which they label ‘the adversary system excuse’.^[131]

The neutral disposition projects lawyers as amoral manipulators of legal rules;^[132] shallow and unprincipled. The pursuit of clients’ causes, right or wrong, seems at odds with wider social purposes and the common good. This places the underlying ethos of lawyers at odds with that of other professions, including those in fields involving personal conflict.^[133] Some compelling and high profile examples are often quoted to support the proposition that the standard conception leads lawyers to undertake unethical actions.

When governments are contemplating illegal activity, for example, torturing insur­gents, breaking into the offices of political opponents or embarking on war, govern­ment lawyers provide cover for the actions. When corporations are at the middle of financial or other scandals, lawyers are often criticised for complicity. Lawyers’ ethics based on the standard conception are blamed for these situations, because of the imperatives of neutrality and partisanship and the corollary of non-accountability for consequences. When a scandal breaks, around government or corporation, critics ask, ‘where were the lawyers?’ The answer is that lawyers were often at the centre of the decision-making process.

Finally, there is concern that a role built on the standard conception harms lawyers themselves. Feminist and critical scholars argue that training lawyers to equate logic with reason, leads them to deny the value of feeling and imagination and to become cold and uncaring. The obsession with formal rationality is said to have a negative impact on personality.^[134] Training to adopt the neutral disposition means that lawyers and judges block out an empathetic response to the human issues raised by legal problems.^[135]

The dissonance between personal values and professional roles, it is said, induces ‘role conflict’, allegedly leaving lawyers suffering from ‘debilitating psychic tension’.^[136] This has been blamed for unusually high levels of drink and drug abuse among law­yers in the United States.^[137]

D. Alternatives to the Standard Conception

Having characterised the standard conception as requiring morally problematic behav­iour its critics in the US offer one from a range of solutions. William Simon advocates that lawyers have moral autonomy in making ethical decisions.^[138] They should have ‘discretion to disobey’ when partisanship produces immoral consequences. Luban calls for ‘moral activism’, whereby lawyers should act as if the ‘adversary system excuse’ was not available to them.^[139] Postema argues that lawyers’ professional role does not exclude personal morality.^[140] Rather, they should exercise ‘engaged moral judgement’ in deciding what it is legitimate to do for clients.

The critics do not deny that there is a professional role, but see it as what Postema calls a ‘recourse role’. This means that lawyers have the recourse of not acting in accordance with role in a few extreme situations. The role expands or contracts depending on the underlying institutional objectives the role is designed to serve, with lawyers having discretion to disobey their code of ethics when the rule contradicts the objectives of the role.^[141]

Some critics of the standard conception have advocated degrees of de- professionalisation of roles. These range from Simon’s consideration of the abandon­ment of a neutral professional role to making it an institutional rather than a personal responsibility. In a fully de-professionalised market, where legal services are treated like any other service, lawyers could negotiate with clients what level of service and commitment they would provide. Many people might think this a step too far in avoiding lawyers having to perform a morally ambiguous role.

The standard conception is not a purely American construct. English academics have levelled similar criticisms to those of their US counterparts against lawyers in England and Wales. Nicolson and Webb suggest that English lawyers are subject to similar obligations as US lawyers and are similarly compromised ethically.^[142] Regarding partisanship, they follow Simon, arguing that lawyers should have discre­tion on moral questions. On neutrality, they suggest that unpopular clients should be able to select from panels of lawyers provided by the profession.^[143]

E. How Far is the Standard Conception Relevant to England and Wales?

Much of the discussion of the morality of lawyers’ roles is based on examples that do not apply in England and Wales. A common situation is that of an advocate told by a client that he is guilty of rape, but who conducts brutal cross-examination of the vic­tim. This is an emotive example and one that is not sanctioned by the rules in England and Wales. Nevertheless, much theoretical discussion of legal ethics proceeds as if this practice represents the norm.^[144] Therefore, before considering whether the standard conception of the lawyer’s role can be justified, it is necessary to consider whether the standard conception is an accurate representation of lawyers’ ethics.

i. The Standard Conception in Lawyers’ Codes of Conduct

a. Neutrality

The codes of conduct of lawyers in England and Wales suggest a limited engagement with the standard conception. A famous example of neutrality in practice is the obli­gation of English barristers to accept any brief or instructions in any field in which they profess to practise. This so-called ‘cab rank rule’ goes beyond an obligation not to discriminate. It suggests responsibility to accept briefs in the order that they are received. Solicitors, however, are not subject to any such obligation, even as advocates, although they must not discriminate unlawfully, including in the selection of clients.^[145] This is by no means the same as moral neutrality.

b. Partisanship

In the US, partisanship is usually identified with requirements to represent clients ‘zealously, within the bounds of the law’^[146] and to ‘not intentionally fail to seek the lawful objectives’ of clients.^[147] Similar obligations to client loyalty are found in the English codes, but no similar commitment to promoting client autonomy. For example, the version of partisanship in the Bar Code of Conduct is to ‘promote fear­lessly and by all proper and lawful means the client’s best interests’.^[148] While the fierce language is suggestive of partisanship, pursuing a client’s best interests falls well short of an obligation to carry out the client’s lawful preferences. Indeed, barristers must not limit their own discretion in deciding how the client’s best interests are served.^[149]

The Solicitors’ Code of Conduct also talks in terms of acting in clients’ best inter- ests.^[150] Both codes therefore follow the professional principle identified in the Legal Services Act, of acting in the best interests of their clients. While this is not necessar­ily inconsistent with partisanship, it does not require it. The codes therefore present a weak version of partisanship at best. In fact, the obligation is consistent with lawyers acting in accordance with what they perceive to be the client’s best interests. This is consistent with acting in a paternalistic way and is therefore ethically problematic.^[151]

c. Overriding Duty to the Administration of Justice

Language that appears to limit partisanship permeates the codes. The Solicitors’ Code of Conduct stresses that any conflict between principles should be resolved in a way that ‘serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice’.^[152] It stresses that solicitors should ‘uphold the rule of law and the proper administration of justice, act with integrity and not allow your independence to be compromised’.^[153] The preamble to the Code preserves solicitors’ discretion in interpreting the provisions, thereby providing consid­erable latitude to avoid immoral action. The Bar Code contains similar admonitions against dishonesty or discreditable behaviour, actions prejudicial to the administration of justice and conduct likely to diminish public confidence in the legal profession.^[154]

The opportunities to subvert justice are greater in an adversarial process than in other judicial systems. Lawyers’ obligations to clients are, however, balanced by a wider duty to legality. In the case of advocates, this obligation is expressed as a duty to the court, which is defined by specific rules. They must be careful not to coach their clients on the law before hearing their story. They must be careful not to influence witnesses, leading to presentation of distorted evidence.^[155] They must not deliberately mislead the judge. The wider duties of lawyers have been reinforced by the Legal Services Act 2007. It specifies professional principles requiring any person appearing before a court or conducting litigation to act ‘with independence in the interests of justice’.^[156]

The evidence of the English codes of conduct suggests that an attenuated version of the standard conception operates in England and Wales. There is a strong com­mitment to neutrality by the Bar, but not the solicitors’ profession. There is no com­mitment to partisanship to compare with that originally derived from the American Bar Association Model Rules in either the barristers’ or solicitors’ codes. Further, as in the US, codes of conduct generally provide scope for lawyers to avoid acts they consider immoral.^[157]

ii. The Standard Conception in Lawyers’ Behaviour

Studies of how lawyers’ actually behave contradict the idea that neutrality is a sig­nificant problem in legal practice. Most lawyers are involved in transactional work, where the conflicts presented by partisanship and neutrality rarely arise. Litigation is probably the area where neutrality could cause some moral conflict. Because lawyers specialise, as criminal defence advocates or as prosecutors, they can act consistently with their personal values most of the time.^[158] Indeed, studies of how US lawyers behave in practice show that, away from metropolitan centres, they often refuse to act for unpopular defendants for fear of inciting local hostility.^[159]

Studies of lawyers’ behaviour do not support the idea that extreme partisanship is prevalent among practitioners, even at the Bar.^[160] The standard conception is a ‘straw man’ erected for the sake of academic debate. In fact, lawyers often try to mediate their client’s more extreme demands and, depending on the type of case, seek ‘reason­able solutions’.^[161] Just as non-contentious work is more voluminous than litigation, a fully-fledged adversarial trial is but a small part of litigation. Analysis of what most lawyers actually do suggests that the problem of ‘role conflict’ may be overstated by critics of the standard conception.

F. Defence of the Standard Conception of Lawyers’ Role

Charles Fried tried to justify a partisan disposition in lawyers on the ground that the lawyer and client relationship is akin to friendship. This approach was based on the proposition that ordinary morality accepts that people do things for friends that they would not do for anyone else.^[162] This argument, that a lawyer is a ‘special purpose friend’, was heavily criticised, not least because the analogy is difficult to sustain.^[163] Unswerving loyalty is reserved for people we are very close to, not given to acquain­tances and strangers for money. Lawyers have little opportunity to develop genuine concern for clients as people so as to justify treating them in the same way as family members or close friends.

Recently, supporters of the conventional legal role have tended to suggest that law­yers’ obligation of partisanship depends on the circumstances of representation.^[164] In criminal defence, for example, partisanship is given freer reign, within the constraints imposed by the system. Partisanship dictates that a lawyer can make the state prove its case even when the client is guilty, yet the system requires that no perjured evidence is presented. Lawyers’ loyalty to client wishes is therefore conditional at best.

Although the obligation of partisanship is strong in criminal law, in civil litigation it is weaker. In family disputes, for example, lawyers should not inflame the situation or assert a case that is not legally defensible. In transaction work, lawyers should arguably be more co-operative and more aware of public interest considerations. Like judges, lawyers have an underlying obligation to support the rule of law. This includes a responsibility not to exploit the indeterminacy of law.^[165]

The main argument in justification of the standard conception is that it is better than any alternative. Giving lawyers ‘moral autonomy’, as suggested by Simon, may be seen as unrealistic, impractical and an abrogation of regulatory responsibility.^[166] If the standard conception is the only viable way of representing clients in a way that respects the rule of law, we are left with the issue of how to justify the lawyer’s role morally.

G. Limiting Partisanship

Recently, a new wave of scholars has sought to divest the standard conception of the lawyer’s role of the negative connotations alleged by its critics. Markovits argues that lawyers must be neutral and partisan if society is to derive the political benefit that resolving disputes through the legal system offers.^[167] Dare argues that the obligation of partisanship only entitles clients to a level of commitment he calls ‘mere zeal’, rather than ‘hyper zeal’.^[168] Mere zeal, Dare suggests, is desirable whereas hyper-zeal is to blame for the worst excesses of lawyer behaviour.

Wendel argues that it is not fidelity to clients that is the underlying justification of the lawyer’s role, but fidelity to law.^[169] The key change to the partisan obligation envisaged by the notion of fidelity to law is that lawyers’ ethical duties are performed by providing that which clients are entitled to in law, rather than by delivering every advantage that the law allows. This involves respecting the determinacy of law, where the law is clear, by providing clear advice. Lawyers involved in corporate and govern­ment wrongdoing have often failed to carry out their role properly, for example, by suggesting that there are no clear rules against state torture.^[170] This undermines for­mal legality and is therefore, according to this analysis, unethical.

Wendel’s position regarding neutrality is less satisfactory and somewhat inconsis­tent with his general argument and his limitation on partisanship. In client selection he conceives a moral permission to represent unpopular clients rather than a moral obligation. He does, however, advocate that decisions to refuse clients be based on legal rather than moral values. This appears to offer lawyers a way of subverting their social role.

The idea of fidelity to law is located in the political system and its goals. It is consis­tent with the dominant version of the rule of law, formal legality. It is not the same as justice, meaning fair outcomes, but with fair processes. This approach recognises that lawyers need not strive for outcomes unacceptable to ordinary morality. This rationale for partisanship and neutrality limits the potential for immoral consequences alleged to arise from the standard conception of the lawyer’s role. This is a more elevated notion of a professional role for lawyers,^[171] at least contrasted with the image of the ‘hired gun’.

H. Is a Professional Role for Lawyers Justified?

Partisanship is an unavoidable disposition for lawyers where clients’ interests conflict with those of another person. The degree of partisan commitment or neutrality that is essential to the adversary process is, however, debatable. More extreme partisan behaviour may be reserved for lawyers acting for those threatened by the oppressive power of the state, for example, in criminal proceedings. The purpose of criminal jus­tice is not merely to ensure a fair trial, but to secure order, suppress crime and reduce fear of crime.^[172] Civil justice has rather different goals and a more co-operative ethos may be appropriate.^[173] Whether different levels of dedication to client goals can be satisfactorily represented in universal principles of conduct is debatable.

Even within an adversarial system, therefore, legal roles find justification in the need ‘to administer and to facilitate the operation of law’.^[174] Ethical neutrality is the correct disposition for lawyers in modern, diverse, competitive societies because neutrality facilitates pluralism.¹⁸⁴ Neutrality needs to underpin institutions and practices and procedures for selecting officials, judges and governments. Abrogating neutrality weakens the justification for partisanship. If all people are not entitled to partisan advice, why should a few people have that right? While lawyers’ freedom to refuse clients is defensible, it is not very practical.¹⁸⁵ The logic of a system based on formal legality and a society of plural values is that all citizens should have representation in principle, even if their cause is not one that a particular lawyer approves of.

VI.