In 1835, at the opening of the Law Society’s hall in Chancery Lane, the Society was mandated by the profession to ‘make its complaints by petition, remonstrance and appeal to parliament, the bench and several other constituted authorities’.

To this day, a great deal of time and energy is expended working closely with all political parties, the judiciary and functionaries of government to fulfil this function. Although the Society is not always successful it often manages to effect change, as recent positive developments over best value tendering and tier five immigration have proven.

This week, the Law Society published Delivering Justice: The Law Society manifesto 2010. This is a serious assessment of the requirements facing any incoming government on the maintenance of the rule of law, the fulfilment of good governance, the defence of the rights of the people, and the continued existence of a strong and independent legal sector. The Society plans to use the manifesto as the basis for its lobbying activity in the lead-in to the forthcoming general election.

When I chose the ‘rule of law’ as the overarching theme of my presidential year, it was partly with the general election in mind. The nation, as well as the profession, has been through a great period of transition. In overcoming the financial crisis, the state has taken on greatly enhanced levels of debt, raising questions as to the future financing of public services. The continued threat of terrorism has been met with an increase in surveillance and the rolling back of freedom of the individual at a time when levels of debt have led to reduced access to justice. It is absolutely right for the lord chief justice to have expressed his concern. Equally, US Supreme Court justice Brennan, quoted at the start of Delivering Justice, makes the apposite point: ‘Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with, but injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the existence of free democracy is not imaginary but very real, because democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in the benefit of impartiality and fairness.’

In confronting these challenges, there is a real risk that government – any government – will act first and think later. I have written before on the fact that we are watched from afar and that the rule of law has been crucial to Britain’s prosperity and stability and to the maintenance of a free, peaceful and just society. The only guarantee of freedom of the individual is a government strong enough to protect the people and a people strong enough to protect themselves from government.

Delivering Justice takes the bones of these ideas and gives them substance for the months ahead.

New covenantIn securing access to justice in the years to come, it is vital that government and the profession should strike a new covenant to create a sustainable future. It is plainly apparent that the current system based on a fixed budget is simply resulting in a squeezed supplier base.

One of the prime responsibilities of government is the defence of the rights of the nation’s citizens. This means more than protecting their right to live free of fear and crime – it means defending their right to freedom, to privacy and to proper justice. This is a difficult balance to strike, but there are guarantees that any government could give to advance this cause. For a start, the Judicial Appointments Commission should be assured of the ability to build on its work to establish an independent process of judicial appointment based solely on merit. The principles behind the Human Rights Act should also be maintained, in whatever form. Consideration should also be given to enshrining other non-codified rights, such as trial by jury.

In the medium term, minimising or even reversing the volume of legislation passed would provide much needed relief for the creaking criminal justice system. It is also essential that a reasonable and rational debate should take place on how best to strike a balance between surveillance and privacy.

Clear and accessible legislation is the key to balancing the rights and obligations of citizens in a democratic society. Individuals need sensible, fair and effective laws which have been properly scrutinised. In the next parliament, an extension of both pre- and post-legislative review would help to ensure that new laws have their intended effect. Where possible, laws which are outdated, unnecessary or burdensome should be repealed.

Reforms in the field of tax law could potentially untangle an area which is notoriously unclear and complex. Changing the tax year to run on a calendar basis and applying fixed dates for the pre-budget report and the budget would inject some much needed predictability and rationality to the system. The creation of a permanent tax advisory body to recommend reform and simplification of existing tax law and to monitor the passage of new legislation could also provide greater clarity.

The rule of law is built upon the foundations of a strong and independent legal profession. The importance of the solicitor should never be underestimated, solicitors being part of the weave of the fabric of society, wherever and however they practise. The legal sector is also a jewel in the crown of the UK economy. There has to be a level-headed assessment of the burden of regulation borne by law firms which affects both their ability to practise and their wider competitiveness.

While the Society believes in choice where new business models are concerned, a regulatory level playing field must be maintained regardless of which business model a firm adopts. There must also be due consideration of the potential effect of new business models on access to justice. Concerns about a level playing field also apply to the unregulated providers of legal services, while the growth of referral fees provides a lack of transparency for the public and a disadvantage in the marketplace for regulated practitioners.

These are just a few of the ideas contained within Delivering Justice. It does not and cannot claim to have all the answers. However, I am confident that it provides an effective foundation for any putative government to guarantee the future of good governance and the rule of law. I very much look forward to discussing it with opinion-formers, policy-makers and the profession in the weeks and months to come.

Robert Heslett is president of the Law Society