Getting back to basics

It’s good to get back to basics occasionally. What is a lawyer’s fundamental ethical obligation? Surely the answer must be, to protect and promote the rule of law.

But isn’t the “rule of law” one of those vague concepts that means anything and everything to anybody? All of us, and the state itself, can surely commit to the idea without suffering any inconvenience.

Not so. Here is Tom Bingham’s brilliant and measured new book, The Rule of Law. Bingham is a retired English judge, but not just any retired judge. He has been master of the rolls, lord chief justice, and senior law lord. With elegance and forcefulness, Bingham describes what the rule of law means, and why it is more important today than ever.

Let me pick out three or four points he makes, from among many, that suggest some of the ethical responsibilities of the modern lawyer.

A recurring theme in Bingham’s book is the limits imposed on the state by adherence to the rule of law. For example, torture is never acceptable, no matter what the circumstances. Bingham writes: “There are some practices so abhorrent as not to be tolerable, even when the safety of the state is said to be at risk, even where the price of restraint is that a guilty man may walk free. There are some things which even the supreme power in the state should not be allowed to do, ever.”

A related point is the sweep of habeas corpus. Bingham picks the United Kingdom’s Habeas Corpus Amendment Act of 1679 as a milestone on the way to the rule of law. King Charles II’s chief minister was in the habit of dispatching prisoners to distant parts of the U.K., where the writ of habeas corpus did not run. This meant prisoners were unable to challenge the lawfulness of their detention, and that, of course, was the whole point. The 1679 amendment act stopped this abuse. Now we have the United States resorting to torture, something “the supreme power in the state should not be allowed to do, ever.” Now the U.S. — at Guantanamo Bay where Canadian citizen Omar Khadr is detained — is exactly emulating Charles II’s approach to habeas corpus of more than three centuries ago. These are blatant breaches of the rule of law.

The fundamental ethical obligation of every lawyer is to resist this behaviour in any way legally possible. So, every Canadian lawyer should demand the return of Khadr to Canada. And we should be very displeased that the Supreme Court of Canada recently refused to instruct the government to demand Khadr’s repatriation, despite recognizing that his Charter rights had been breached.

But isn’t the post-Sept. 11 world a new and terrifying place, one in which hoary concepts like the rule of law no longer apply the way they once did? Many, including high American officials, have argued that in our new circumstances, discrimination against non-citizens (providing for their indefinite detention without charge, for example), or the erosion of fair hearing guarantees, or extraordinary rendition (which happened to the Canadian Maher Arar with the connivance of our government) are justified. This is sometimes described as replacing a criminal justice model with a security model.

In reply, Bingham quotes the Council of Europe: “[W]hile the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a State to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law.” Every lawyer should insist that no diminution of the rule of law ever take place.

A different kind of principle demanded by the rule of law is full access to justice. Bingham quotes the legal scholar E.J. Cohn: “Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise.” And then Cohn adds an observation of great force: “ . . . the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreaks of epidemics, for old age or economic crises. But the State is responsible for the law.”

All members of the legal profession, as part of our commitment to the rule of law, should be concerned about the manifest inadequacies of the legal aid system, and work for a better way of promoting access to justice. Some time ago, in these pages, I urged a national legal insurance scheme [“Medicare for the justice system,” Canadian Lawyer, October 2007]. No one in the legal profession seemed interested. It wouldn’t be easy to implement “judicare,” and to do so would be controversial, just like the establishment of the medicare system we now cherish, which was initially thought unworkable and was fought bitterly by many doctors. Absent something like judicare, well, as someone once said, “Justice is open to all, like the Ritz Hotel.”

Bingham’s book has been described as part of the judicial trend towards idealistic constitutionalism incorporating a set of fundamental principles. Some find this worrying. As a reviewer in The Times Literary Supplement put it, as political conflict comes to be framed in legal terms, the political game has to find room for judges and lawyers. What of parliamentary sovereignty? Bingham is clear that, in the U.K. at least, legislation can only be struck down by judges if Parliament itself has authorized such a process.