More lawyers need to follow in the footsteps of David Lloyd George and Clement Attlee to ensure our institutions are committed to the rule of law.
Last week, the Spectator published an article called ‘Cull the lawyers – there are too many for democracy to work’. Its print version had a slightly different heading: ‘Legal challenge: too many lawyers become MPs’.
It was written by a former solicitor, now turned comedian, but there is no sign of either calling in his piece. Maybe in line with the pomposity of my profession, I have just failed to see the joke. Its key sentence is this: ‘For lawyers in politics, the elimination of risk becomes the highest aim of government.’
The author thinks that there should therefore be fewer lawyers in parliament. He believes they are over-represented at around 15%. He calls for more women and more working class. But lawyers are obviously not a separate class from women (around 50% of practising certificate holders are now women), nor indeed from the working class (although I have no figures for that, and the percentage will be much, much lower than for women).
He believes that lawyers as a profession should be replaced in parliament by … journalists, of course, on the grounds that with journalists: ‘Their political views may just be the intellectual justification of gut instincts – but doesn’t that make them representative of us all?’
The author is led to this outstanding punchline by reflecting on the fact that of the 15 Tory MPs who opposed the government’s line on Brexit, the so-called Brexit Mutineers, nine are lawyers and the tenth is the son of a High Court judge which ‘counts as the same thing’. (Funny, eh?)
I am not in a position to study the careers of all members of the House of Commons who have been lawyers, but over the last century three lawyers made it to prime minister: David Lloyd George, Clement Attlee and Tony Blair. I don’t think that any of their records could be described as risk averse. The direct actions of the first two led to ground-breaking social changes (sickness and unemployment benefit for the first, and the introduction of the full welfare state for the second) – and we know that the reputation of the third was ruined by insisting on being part of the invasion of Iraq, against the advice of a million marchers and many reasonable people.
Can it really be true that people believe that, just like all window-cleaners are randy, footballers thick and vicars child-molesters, so all lawyers are extremely timid? The rapid and staggering world-wide expansion of English law firms is just one of many clues that this is nonsense.
In the US, there has been interesting – and this time serious – research by an academic in the opposite direction. He looked at the decline over the years of lawyers in the US Congress. Over 150 years, the percentage of lawyers in Congress has declined from around 80% to 40%, and the author examines why this has happened and its likely consequences.
His first principal conclusion is that the dominant presence of lawyer-members of Congress for so many years has helped foster the centrality of lawyers and courts in the US. He cites the famous de Tocqueville quote that ‘[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’. This characteristic is still strikingly obvious to outside observers.
His second main conclusion is that the nature of the judiciary has changed because there are fewer politician judges. The judiciary has become more technocratic, and as a result maybe less independent. The reasoning is that judges are dependent on others’ opinions and requirements for promotion, and their record is no longer based on the political philosophy the judge may have espoused in a previous career as a politician, but can only be seen now though judicial decisions made over an array of cases. Judges may now therefore engineer their decisions to show a particular political philosophy for the purpose of future advancement.
But the author’s most interesting conclusion – made in 2015 before the rise of Donald Trump – is a more speculative one on the role that lawyer-politicians play in shaping adherence to the rule of law by the country’s political leadership. He says that the US’s strong commitment to the rule of law did not come about only through its law and institutions, but: ‘It was also the norms that its leaders have followed. The decline of the lawyer politician in all branches of government may undermine these governing norms: whether it is fewer politicians that are immersed in the language of rights and due process or fewer judges that are savvy to the world of politics.’
This, therefore, argues for more lawyers in parliament, not fewer – to ensure that the practice of rights and due process is spread more broadly throughout our country’s institutions and leadership. Take note, Spectator.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council