Michael Todd QC, Chairman of the Bar Council of England & Wales, gave a speech last Thursday (22) in Grand Court No.1 – but not his first time in this court after appearing as an advocate over 20 years ago from instructions by Cayman Islands Justice Charles Quin.

“Since my first appearance before these Courts,” Mr. Todd said, “I have never looked back, and have never wanted to do so. I have now appeared before a number of Judges of this Court, including Harre CJ, and the present Chief Justice. And it has always been a privilege, and, often, a pleasure.”

Mr. Todd chose to speak on the topic of the “Rule of Law” with its relevance in a modern and sophisticated society, and the essential role of the advocate in promoting the Rule of Law.

The lawyer started by saying he had been “instructed by, appeared with, and against, many different attorneys, in these Islands. Their professionalism, their integrity, their values, their ethical standards, their adherence to the principles of access to justice, and to the Rule of Law have never been, and should never be, in doubt.”

“But there are worrying trends which we, and particularly we as lawyers, must all guard against, not just here, but in England & Wales, and in the rest of the common law world. Those concerns derive from both economic and political expediency.”

The worrying trends he outlined concerned cost, especially dispute resolution, that have “soared first, as business, commerce, finance and industry now operate in globalised markets, second with the advent of e communications and technology, and third as a result of the rods which we have made for our own backs with our procedural reforms and innovations. Justice is too often sacrificed on the altar of price competition, as a matter of political dogma, and if not on that altar, then as a sacrifice to populist opinion. Justice does not, after all, come at any price and we must always be wary of Governments which, as Oscar Wilde said of the cynic, “[know]  the  price  of  everything   and  the  value  of  nothing”.”

Mr. Todd  wondered   if  the  Rule  of  Law,  its  ethical  standards,   the  public’s   faith  in, and  support   for,  the  integrity  of  its  legal  system,   may,  at  times,   seem  a  little  lofty  to, and  a  little  remote   from,  us  for  whose  benefit,   in  part,  it  exists.   He  mentioned Professor   AV  Dicey’s  “An  introduction   to  the  study  of  the  Law  of  the  Constitution” published  in  1885  and  Tom  Bingham’s   “The   Rule  of  Law”,  published  in  2010,  as  core elements   of  the  Rule  and  the  “essential   role”   the  advocate  has  to  play  in  “ensuring fairness”.

“Too often these days, decisions   made   by the  Courts   are  held  up  to  political   or public  obloquy.  Often   undue   criticism   is  made   by  lawyers  outside   of  the  Judicial process;  decisions   that  is,  involving   a  determination   of  legal  right  and  liability   by application  of  the  law,  that  is,  according   to  the  Rule  of  Law.  The Rule  of  Law  and  the effective   administration   of  Justice   require,   and  demand,   that  support   and  respect   be given  to  the  Judiciary   and  to  the  Judicial   Process,  and  that  effect  be  given   to  them.”

He quoted   many  judges  and  landmark   works,   castigating   the   inappropriateness   of politicians  who   publicly  criticise   decisions   of  Judges   or,  “even  worse,  Judges themselves   in  connection   with  the  performance   of  the  Judicial   function.”

“By the same token,” he  pointed  out,  “we  must  ensure   that  the  decision   maker   is impartial.  Whilst   a decision   maker   who  is  truly  independent   of  all  influences extraneous   to  the  case  to  be  decided  is  likely  to  be  impartial,  he  may  nonetheless   be subject  to  personal  predilections   or  prejudices,   which  may   pervert   his  judgment.”

He quoted   from  a  judgment   by  Lord  Denning   in  which  he  said,  “[The  barrister] must  accept   the  brief  and  do  all  he  honourably   can  on  behalf  of  his  client.   I say  “ʺall he  honourably   can” because  his  duty  is  not  only  to  his  client.   He has a duty  to  the

court,  which  is  paramount.”   He then read  the  Code  of  Conduct  of  the  Bar  of  England and  Wales  in  which  this  is  enshrined.   He particularly   stressed   that the public  must have  confidence   in  the  law  and  quoted  Lord  Steyn  that  this  was  his  principal concern.

“The integrity  of  Judges,”  Mr.Todd   insisted,   “is  essential  in  maintaining   confidence in  the  Judicial    system.   But so  too  is  the  integrity   of  practitioners   before   the  Courts.

“Fearlessly,  advocates   will   defend  a  person’s   human   rights,  however   egregious   the crime  of  which  he  is  charged,  however   unpopular   the   cause,  however   distasteful   the client,  or  his  views.  However,  their  ability   to  do  so  necessarily   depends   on ‘accessibility’.”