I was struck by a remark made by Jolyon Maugham QC in an interview with LBC's James O'Brien. Maugham is a high-flying tax lawyer turned Brexit crusader, leading a number of constitutional challenges to the English government's handling of matters since Art 50 was triggered. The conversation turned to how great lawyers are not innately good politicians (Keir Starmer's name was dropped with uncomfortable regularity). In fact, the two skillsets might be somewhat mutually incompatible. Maugham noted that lawyers are obsessed with process. By that he means not just the granular detail that the law requires, but a slavish focus on the rules as prescribed by the law and their application, as opposed to the substance or merit of those rules.
Though this might seem a somewhat trite observation, it reminded me of a remark made by Michael Kirby, a former Australian High Court judge. Kirby J as he was identified in cases, was a senior judge for many years and was known colloquially as 'The Great Dissenter' for the alternative judgments he gave. Nearly two years ago Kirby addressed the Law Society in Trinity College, where I was studying. With the typical Aussie forthright tone, he proceeded:
"The problem with human rights lawyers... is that most of them aren't very good lawyers. I’m sure that they’re very good people, but they should get tax lawyers to argue human rights cases as they would probably do a better job."
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| Michael Kirby, former Judge of the Australian High Court |
I instinctively understood his perspective but couldn't quite put my finger on the essence of the point he was making. I certainly wouldn't make the generalisation that human rights lawyers are bad at their jobs - this is not true. Human rights lawyers fight cases where clients are sentenced to death, while tax lawyers focus on the other certainty in life. And if I was being waterboarded and illegally detained by the State I would be phoning up somebody who knew their UNDHR from their ECHR, not someone who knew the difference between PAYE and PRSI.
It was only in the context of Maugham's comment on the LBC podcast that Kirby's line made perfect sense to me. It is purely coincidental that Jolyon Maugham has followed the career path noted by Kirby from defending tax avoiders into fighting torturers.
Some aspects of the discipline of human rights law seems less concerned with the process of the law and more with its substance and this is why it has never sat particularly comfortably with me. I acknowledge the importance of human rights lawyers fighting for womens' rights in antediluvian societies or activists challenging unlawful detention of prisoners in Guantanamo Bay. However, it's important that arguments in human rights cases are not overly reliant on moral principles rather than on the process which the law sees as its foundation. These arguments appeal to our common humanity and are compelling for judges to embrace, but might act to undermine legal process where they conflict with the law. Issues of rights might better be remedied through the political process. You may feel that the law should step in where the political process has failed, but I do not necessarily agree.
From Kirby's remarks, it appears that he therefore considers human rights law as being at a distance from other law. Vague reasoning can act as a veil disguising as law moral viewpoints, politics or simply the personal opinions of the judges. In one of the highest-profile recent Irish criminal cases, a barrister on the defence team emphasized to the jury 'this is not a court of morals'. A focus on process endows the law with a certain dispassion, but this might just be law’s strength.
The beauty of the law is its consistency. The patchwork quilt of our common law system is constantly being sown, but no more than one stitch at a time. Each case reaffirms existing law or makes a minor departure on thoroughly justified grounds. Consistency breeds predictability and this is what the clients of lawyers crave. Consistency fosters fairness. There is an equity in like decisions being treated alike.
This consistency and obsession with process can sometimes make the law quite dull. The most dramatic of cases with the most perilous of outcomes are decided on the most banal of legal grounds. Irish Republican Robert Emmet was famously 'hanged on a comma' - the interpretation of the law which sanctioned his execution was dependent on the placement of punctuation.
Process can however be seen as a barrier to achieving justice, perceived as offering the ability for someone ‘get off on a technicality’. For example, a convicted murderer is currently challenging his conviction on the grounds that his mobile phone data was not obtained legally during the investigation. The breach of his legal rights will not engender much sympathy for him among the general population.
Law's focus on process rather than on substance is prone to misunderstanding by lay people. Law students and practitioners are often not most excited by the ultimate decision but by how the decision was reached. Therein lies the chasm between law and politics. There was somewhat of a furore last month when the High Court rejected the proposed cycleway in Sandymount. Some perceived the judgment as anti-cyclist and anti-environment. The decision was not simply about whether the cycleway was a worthwhile idea, put most vaguely it was about whether Dublin City Council had followed the rules. Given the alterations which would have to be made to the Strand Road to accommodate the two-lane cycle path, this amounted to construction and development under planning law. Therefore, the plan would have to be submitted through the planning process and couldn't be unilaterally forced through by the Council, the judge held. This is a process which allows for locals to make observations, both positive and negative. Because the process believes in listening to the interests and concerns of people.
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| The Sandymount cycleway proposed by Dublin City Council |
The law's obsession with process is what makes the law, the law. Encroachment by judges into decisions about policy and the spending of resources is simply mission creep by eager judges. Former Law Lord Johnathon Sumption has written eruditely about this in his book 'Trials of the State'. The Irish judiciary has long passed its halcyon days where new rights were being discovered in the Constitution, with recently-retired Chief Justice Frank Clarke proclaiming that judges are not free to simply 'look into their hearts' and discover new rights which are not specified in the Constitution. This is a welcome statement.
When the law abandons process it becomes politics through another means. That other means is an adversarial system, not equipped to dealing with the compromise, bargaining and finding of common ground which is characteristic of our political process. Then unelected judges become legislators without a mandate and without public accountability. Let the lawyers interpret the law. Leave the politicians to make it.
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