Address by Sir Andrew McFarlane, Lord Justice of Appeal on Birmingham Law Society's 200th Anniversary
Address given at the Bicentenary Cathedral Service on 11 January 2018, Birmingham Cathedral
It is a true honour to have been invited to give a short address on this occasion to celebrate, almost to the very day, the founding, 200 years ago, of the Birmingham Law Society.
200 years seems or feels to be a long time ago; but, is it? Certainly much has happened in that time, and the Birmingham that existed three years after the Battle of Waterloo and two years before the death of King George III, is a world and more away from the great city that now thrives in this place. But is it SO long ago?
My connection with the Birmingham Law Society goes back some 45 years to the time when, as a first year law student at Durham I used to come into the Law Society Library in Temple Street during the holidays to catch up on all the work that I had somehow missed during the term time. Under the avuncular and kindly supervision of Mr Lahiri, I spent many days there and I can still picture, and even recall the musty smell of, the old place. During the intervening 45 years I have spent much of my professional life in or connected with the Midlands.
I suspect that I am not alone amongst those of us here this afternoon who can count up 40 or 50 years of ‘Law in Birmingham’. Half a century! Looked at on that basis, 200 years does not seem such a long time. Those who were ending their careers when we were starting could no doubt recall back to 1918, and the people they recalled will in turn have known the previous generation. Thus, although none of us is, of course, so old as to recall the first President, Mr Thomas Lee and the first Secretary Mr Clement Ingleby, we can, I think, feel some true connection with them, especially this afternoon, and to have some good idea of what they were ABOUT all those years ago.
But what were they ABOUT? What are we, as lawyers today, ABOUT? Why is it at all important to celebrate 200 years of continuous service by lawyers to society in general and, in particular, to this great City of Birmingham?
Some 4 or 5 years ago, I had the privilege of being a member of the Court assigned to sit on the appeal of the various groups and individuals who, as ‘Occupy London’, had camped outside St Pauls Cathedral for several months. As a judge, it is not often that you get to converse and interact directly with a group of anarchists! It was, for me and, I think my two colleagues, Lord Neuberger and Sir Stanley Burnton, a most interesting and very largely positive experience.
We read a good deal about how the protest was being conducted on a day to day basis. Through all the detail, one thing stood out and struck me, at least initially, as astonishing. Almost from ‘hour one’ on ‘day one’, and throughout the occupation, this disparate group of anarchists had agreed to organise their lives in accordance with a set of very strict rules. Rules about territorial space; rules about waste and sewage disposal; a strict curfew on noise after 10pm; firm rules about who was, and who was not, to be allowed to take up residence in this very limited space; and so on. They established their own police force, called, I think, ‘Prefects’, whose job it was to ensure that these rules were adhered to. Breach of the rules might lead to expulsion from the site.
Of course, the more I have thought about this initially astonishing revelation, that a group of anarchists would devise and firmly implement such rules, the less astonishing it has seemed. In order to live and to co-exist with our fellow man in any form of society, we need to have rules. We need to know ‘where we are’ and ‘where we stand’. We need to have Laws.
That this is so is evident throughout the known history of man. Last night I watched a play about Cicero performed by the RSC in Stratford, where, before the naked power of Caesar broke the mould, adherence to the law and the importance of the Rule of Law were at a premium. Within a few decades of Cicero’s time, the Apostle Paul is recorded on more than one occasion in the Acts of the Apostles as relying upon Roman Law, and his status as a Roman citizen, to escape trial before the Jewish authorities. Some 500 years earlier, the writer of Psalm 119 was, as we have just heard, extolling the virtues of The Law.
In our own time, the premium that is put by our society upon strict adherence to rules, protocols and the Law is, I would suggest, at an all-time high. In the ever more sophisticated and complicated world of the 21st century, it is all the more important for individuals, organisations and companies to know where they stand; what they can do and how they can do it or what they cannot do. People have a real and significant interest in the Law and how it affects them and their ability to conduct their lives, whether that be claiming benefit simply to exist, or arranging multi-million pound deals in the most efficacious way, or moving abroad with their child, or losing their employment, or erecting an extension to their house: I could, as you know, go on and on and on!
In a different context, the importance to people of rules, and adherence to those rules, is amply demonstrated in the world of Sport. Only this week, we have seen the introduction of a Video Assistant Referee system to professional football, with the aim of evaluating whether any controversial move of the ball during a game either is, or is not, within the rules. It is important to people to have the rules and for them to be followed.
Domestically, I suspect almost everyone here this afternoon will, during the course of the last three weeks, have either witnessed or joined in some board game or other around the family Christmas tree. Once again, the rules are always important and, unless they are adhered to, the game ceases to be enjoyable.
So far, I doubt that very many people in the community at large would disagree with anything that I have said. They would, I think, recognise the importance of having, knowing and using a set of rules by which life is to be lived in any human society. In so recognising, they would be acknowledging the importance of law and the crucial role of the Rule of Law in any society; in our society.
I suspect, however, that my last sentence, were it to stand alone, and without the chatty preamble, would not register with or be taken up by the public in general as something that they valued or were particularly interested in.
There is precious little newsworthiness in a headline such as ‘Law is important’ or ‘The Rule of Law triumphs again’ they are neither sexy nor interesting. There is certainly little press copy to be made under a banner reading ‘Lawyers are Good News!’, let alone … sexy!
Despite, as I hope my few anecdotes have demonstrated, the Law, and therefore lawyers, being essential for our, or any, civilised co-existence with each other, the profession and the Law itself seem to have a very negative public profile. Doctors, nurses, teachers, scientists, engineers, chefs and even journalists, seem to enjoy an altogether more positive approval rating. Lawyers are seen, at best, as ‘a necessary evil’; whereas, in my view, we are very much a ‘necessary good’.
So much may just be our lot. We are not going to change public perception; although I do think that we could, and should, do more to get the basic message across about the importance of Law, and of the Rule of Law, in our society. I say ‘should’ do more because there have been signs that, rather than just being ignored, the importance of the Law and the Rule of Law may be wholly misunderstood in some influential quarters, with the risk that its place in society and the constitution becomes dangerously eroded. The prime example that I have in mind occurred in November 2016 following the High Court ruling on Mrs Miller’s Brexit challenge: ‘The Judges versus The People’ ran the banner in the Daily Telegraph; ‘Enemies of The People’ was the headline in the Daily Mail.
The personal attacks on the individual judges that these and other stories contained were as regrettable as they were unwelcome, but the bigger point, the much bigger point, is that behind these headlines lies a fundamental misconception as to the role of judges and the importance of The Rule of Law which, for it to have value, requires the judges to determine cases that are brought to the court in accordance with ‘the laws and usages of this Realm’ (to quote the judicial oath) and not on any other basis. I could say more, but I am sure that the point is well understood by those who are gathered here this evening.
Before I conclude, I would like to return to a theme that I warmed up in the earlier stages of my address, namely the very real connection that we have with all those who have gone before us in these past 200 years and, for that matter, and it is for me of great importance, all those who are to come, whether they are just starting out in the law or will do so during the next 200 years.
Another anecdote may suffice to make the point. Last October I had the pleasure of processing down the Nave of Worcester Cathedral in full pomp, wearing, as I am wearing today, the big time Bling that adorns Her Majesty’s Lords Justices of Appeal. On Christmas Eve I made the same journey down the same aisle, but on this occasion I was simply following my wife and our donkey for the annual Nativity Service; my role being to carry the pooper-scooper in case of ‘accidents’ – I doubt that anyone even noticed me. Same man, same walk, down the same aisle. The point is that the ceremony and prestige, if that is what it is, that goes with all this [robes], is not about me, it is not about the individual man or woman, it is about the office and the system.
The point is firmly made to me every time I put on these splendid robes. The label between my shoulder blades does not display my name, but simply the words ‘Number 16’. I don’t know how many former Lords or Lady Justices have worn these very robes, probably a good number, but, like a baton in a relay race they have been passed from hand to hand, down the years from individuals who have each held the office for a time.
The same point applies to each of us who practices law. We are the custodians of the role that we undertake, whether it be offering advice to the most humble or the most high, locally or internationally, in a large firm or as individual practitioners. We meet today, and work as lawyers, at this particular moment in the continuum of time. Whilst it is easy to get involved in the minutiae of individual cases or of our practice as a whole, we should not lose sight of the big picture, the timeless picture and our role within it.
Those who founded the Birmingham Law Society had the foresight to look above their own desks and to see the need for the lawyers of this City to be served by an organisation that provided a ‘space’ in which all could come together for the greater common good of the profession and its clients.
Whilst we remember and give thanks for all that has gone before, we should not forget that our role in the profession is a baton that we hold and, although it is infinitely more difficult to find time and afford priority to doing so, a premium should still attach to lawyers meeting together, outside the tribal boundaries of their firms, to look at the bigger picture and the part that they might each play within it.
This leads me back to the main theme of this address.
There is a need, I believe, for lawyers and for society in general to celebrate The Law and the practice of Law, rather than, as is so often the case, for it to be denigrated or marginalised. This need to celebrate is not, in my view, an optional, formulaic or self-serving thing. The issues involved are, as I have sought to explain, fundamental to the effective and fair functioning of any civilised society and are, therefore, of a high order of importance.
In short, without The Law we would have anarchy and, as even the anarchists camping outside St Pauls might say: ‘we don’t want that, do we!’