Global Law Summit: Respect for the Rule of Law 800 years after Magna Carta

I am delighted to have the following guest blog from our distinguished Attorney General, Ms Rhondalee Braithwaite-Knowles OBE, (pictured right with the Lord Chancellor and fellow AGs from Montserrat and the Cayman Islands), the first citizen of TCI and the first woman to hold the position – Peter Beckingham, Governor, TCI.

Global Law Summit: Respect for the Rule of Law 800 years after Magna Carta

I was energized by the opportunity to join 2,500 delegates and 90 Ministers of Justice and Attorneys General representing 73 countries at the first ever UK sponsored, Global Law Summit celebrating the 800^th anniversary of the sealing of the Magna Carta in London in March as the first local and first female Attorney General of the Turks and Caicos Islands.

The Magna Carta was issued in 1215 and arguably is the basis of many of the rules of law principles that underpin many legal systems around the globe – although, as it turns out, historically the charter was intended to fail and the Pope later declared it void and invalid at the request of the King John. It began to be relied on by the courts and by the 17th Century to curb the power of Kings.  It’s principles of justice, rights and rule of law and equality before the law should never be taken for granted.  These principles are all live issues here in the Turks and Caicos Islands as much as any other country.

A highlight of the Opening Ceremony was the heartfelt key note address by the outgoing US Attorney General Eric Holder, a second generation African American with Barbadian heritage who was inspired to seek a career in the law by the power of the law to effect real change in the lives of the most vulnerable members of society in the segregation era Southern United States.

A visit with others to the UK Supreme Court and the Privy Council, our final court of appeal, provided a rare opportunity to catch a glimpse of the humanity of the judges, one of whom suggested that I should see the movie, Selma, having seen it himself and found it be one of the best movies he’d seen.

The role of the rule of law in business, the commonality of the need to combat money laundering within the legal profession and the FATF 2013 Vulnerabilities of Legal Professionals (identifying 42 Red Flags) were all very interesting discussions. I was delighted that TCI welcomed top lawyers and AGs from across the Caribbean in March to Providenciales to discuss these issues.

A discussion on the future of the Legal Profession raised fascinating ideas about the increased use of technology and robotics in business to improve efficiency in the legal profession which is becoming so expensive to access.   In the future lawyers will need to have a more flexible approach to where, when and how legal work is done. This too will have implications for TCI.

An impressive panel including Lord Justice John Laws and Lord David Pannick focused on getting the balance right in judicial review of legislative and executive decisions.   A comparative approach around the world revealed similar starting points:

1. Does the respondent have a lawful basis for the decision? Construction of statutes is not merely an exercise in grammar
2. Courts presume a fair procedure to be followed unless the contrary is clearly stated or excluded by some compelling factor
3. Was the substance of the decision lawful?

Lord Justice Laws summed up the three key facets of Judicial Review as:

1) Proportionality has now replaced the strict Wednesbury reasonable principle;

2) Natural justice is now seen in terms of legitimate expectation; and

3) The need for judicial certainty and restraint in the application of these principles.

Separately, far reaching new laws on anti-corruption raise issues of consistency of enforcement in accordance with rule of law principles.  However good, such laws are only as good as the enforcement agencies and it must be a truism that compliance has to be cultural within a society or an organization.  The costly nature of bribery cases, particularly due to their length, was highlighted. An OECD report was cited revealing that the average duration of a foreign bribery case is 7.2 years with one reported case taking 15 years for final judgment.  Issues of cost and timeliness have led to the use of settlements but that option is not ideal for many reasons. Cultivating transparency and anti-corruption are actually good for business in the long run and helps increase confidence. Self-reporting is said to be how most bribery comes to light.  The proper use of legal privilege rather than as a tool to obstruct investigations was also discussed.  One important trend is the role of international cooperation between states as a key tool in fighting bribery and corruption.

In his closing keynote address, the UK Attorney General the Rt. Hon. Jeremy Wright QC MP pointed out that the rule of law is crucial to government being able to realize development and improve conditions in society.  This approach was underscored by the final panel of the Summit on the Global Economy and the Rule of Law citing the Bingham principles of legality, optimum legal certainty, equality, and access to justice and rights.  Judges must act with transparency and judgments must be properly reasoned and available.  South African former judge, Justice Catherine O ‘Reagan after giving some grim examples from South Africa said:  “When the rule of law fails, small businesses fail and livelihoods fail”.

So, when it all boils down, even 800 years later, it is important for all of us to recognize that the absence of the rule of law in poor communities fundamentally impairs the ability of the poor to create the kind of economic benefit that drives global economies and equalizes humanity.

Rhondalee Braithwaite-Knowles