Good justice should always trump good intentions.
Good intentions are lovely things. I prefer to live in a country where the government has good intentions. But good intentions are not everything.
It is time to discuss limits when they are applied in the field of justice. Good intentions can take on some of the colour of their opposite when they conflict with the core principles of justice. They are not equivalent in value to good justice, and good justice (or, in different words, the rule of law) should always trump good intentions.
There has been a string of legislation in recent years to prove my case. The classic example is the anti-money laundering legislation (it is good to fight crime, but bad to require solicitors to make reports on their clients based on suspicion and without being able to tip off the client). As predicted at the time, it has led to further legislative inroads and a widening of coverage. It has led, too, to the bending of lawyers to fit in with official agendas, whether it be reporting on lawful tax avoidance schemes through DOTAS, or attempts to interfere with legal advice through business and human rights guidance.
I am grateful to Linklaters’ report In defence of the rule of law for two excellent examples from a completely different field. Section 75 of the Banking Act 2009 was passed in response to the global financial crisis to enable the authorities to take action to stabilise banks in a future threatened collapse. It gives the Treasury power to disapply or modify the effect of any past or future enactment or rule of law – without parliamentary approval.
And section 58 of the Finance Act 2008 was designed to stop UK residents avoiding tax by channelling income through offshore trusts. It stated that the amendments it contained to earlier legislation ‘are treated as always having had effect’ – which is otherwise known as retrospective legislation.
These and other examples raise the old philosophical question of means and ends. If you intend well, is the finished product always right? No. In other countries, some of the bad effects of good intentions can be countered by a written constitution and a constitutional court. In other areas of regulation, there are checks on outcomes for financial consequences or their impact on equal opportunities – yet a ‘justice’ or ‘rule of law’ check is nowhere evident.
Of course, before that can happen there needs to be agreement on what the rule of law means. It is a rather vague notion. The Linklaters report cites Lord Bingham’s famous eight principles (brutally summarised by me as: accessible law; law rather than discretion; equal application; good faith and fairness; protection of human rights; proper dispute resolution; fair adjudication; and compliance with international law).
But the World Justice Project, which does outstanding work in measuring many countries’ compliance through its Rule of Law Index, cites only four principles that it has developed, followed by nine factors. One of its four includes something omitted by Bingham. He concentrates on the content and implementation of the law, whereas the World Justice Project talks about ‘the process by which laws are enacted’. And I can still remember the endless fuss and argument when the International Bar Association tried to define the rule of law.
This is not to mock the attempts, or to say that nothing should be done. On the contrary, I admire the two sets of principles I have cited. But it does mean that in a culture like ours, which mostly rejects absolutes and excessive intellectualising, and is in favour of unwritten conventions and a law progressing through precedent, efforts to judge in advance whether something complies with the rule of law will be a challenge.
Therefore, we have no system, or only indirect ones, for doing it. And our rule of law is becoming the poorer for it.
The failure lies with we lawyers, who are among the chief guardians of the rule of law. Politicians have become expert at explaining their good intentions, and their intentions are usually supported by a large majority of the population. But who stands up for justice and the rule of law when good intentions conflict with them? Who knows enough about Lord Bingham’s eight principles or the World Justice Project’s four principles and nine factors to assess the outcome of the legislation? And who has prepared public opinion in advance, educating citizens in the relevant principles, so that when the time comes to defend them, they are readily accessible and comprehensible?
We know the answers. No one has carried out any of these things. And so good intentions always win, regardless of the damage they can cause. I think it is time to prepare a campaign.
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs