Rule of Law Keynote | Roddy Dunlop KC

The following keynote was presented by Roddy Dunlop KC at the Bar Symposium 2026. (c) 2026, R. Dunlop KC

Address to the Bar Association of New Zealand: The Independence of the Legal Profession

Friends and colleagues: it is a very great privilege to be here with you today.

It is a great honour to be invited here to deliver my famous – some would even say legendary – talk on public procurement through the ages. That should take no more than an hour.

I am of course joking. It’s more like two.

Worry not. I am the accidental key note speaker. This week was meant to be the World Bar Conference. A keen attendee at such events, I booked up immediately. When the war in Iran resulted in cancellation, your Bar Association was kind to recognize the non-refundable nature of my travel arrangements, and invited me to speak to you today so that Faculty would not force the repayment of what might otherwise, by the very cynical, be described as a jolly. I am extremely grateful.

I confess I was given various pieces of advice about what to expect when addressing you. Several colleagues warned me that you would want to talk about rugby. That was very tempting. I sit on the World Rugby discipline panels with one of your own – the great Nigel Hampton KC – but then I considered the humiliation that always attends any Scot speaking to New Zealanders on matters of rugby (we’ve still never beaten you), so that was a firm “no”.

Instead, I want to speak to you about a subject close to my heart. But before I do, I have to note with some concern scenes outside as I arrived this morning. Two young men outside in what I would charitably describe as a vigorous physical debate. I separated them and said: "Gentlemen, fighting in the street is no way to resolve a disagreement. You should discuss it, negotiate your positions." One of them looked at me and said: "Get lost, mate. What would you know about it?" I said: "Well, I know about negotiations — I'm a lawyer." He said: "You’re a lawyer? Honest?" And I said: "No. Just a regular lawyer."

We lawyers are often the butt of such jokes. But the truth is that as a profession — with some rare exceptions that prove the rule — we cleave to core principles that unite us across all our jurisdictions, across all our differences of style and tradition and procedure: honesty; integrity; and independence. It is the last of those I want to speak about today.

Independence has many facets. Independence from the state, of course — and more of that in a moment. But just as important, and insufficiently celebrated, is independence of thought. As lawyers, we should resist the gravitational pull of groupthink. We should be prepared to challenge established norms, to say "I'm not sure that's right," and to stand by that position in the face of pressure to conform. This impulse — this essential awkwardness — can be seen from the very top of the law downwards.

Consider the Great Dissenter: Justice Ruth Bader Ginsburg of the United States Supreme Court. She explained that dissents "speak to a future age. The greatest dissents become court opinions and gradually, over time, their views become the dominant view. So that's the dissenter's hope: that they are writing not for today, but for tomorrow."

Ginsburg's dissent in Shelby County v Holder is famous. The Supreme Court's conservative majority had undermined the critical preclearance provision of the Voting Rights Act, claiming that so much progress had been made toward racial equity in voting that it was no longer needed. Ginsburg was having none of it. She wrote: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." It remains a rallying cry for those fighting for equality in voting rights.

More than a century earlier, the United States Supreme Court had sanctioned legalised racial segregation in Plessy v Ferguson. In a solitary dissent, Justice John Marshall Harlan wrote that "in respect of civil rights, all citizens are equal before the law." Shamefully, it would be fifty-eight years before that dissent — so obviously correct to modern eyes — would become the accepted position of the court. Fifty-eight years. That is how long it can take for an independent mind to prevail. And that is precisely why we cannot afford to suppress dissent in the name of certainty, or tidiness, or institutional comfort.

The same is true in our own common law tradition. What would the law look like without our great dissenters? In England, Lord Denning — infuriating to many, essential to all. In Scotland, Lord Rodger — a man of extraordinary intellectual precision and fierce independence. And Lord Kerr — that great Irishman, who passed from us six years ago, the longest-serving justice on the UK Supreme Court and a former Lord Chief Justice of Northern Ireland. He addressed the contention that dissents were unhelpful because they cause uncertainty in the law, and responded:

"Certainty or finality in the law is an overrated concept. Of its nature, law is an ever-changing process. It morphs, adapts and develops in response to previously unencountered arguments and unanticipated circumstances. Certainty of legal outcome is in many fields, at most, a temporary phenomenon. Today's unalterable truth may become tomorrow's shibboleth. Lord Atkin’s remark in 1933 that 'finality is a good thing, but justice is better' seems to me to be infinitely preferable to that of his near contemporary Justice Brandeis in 1927 that it is “usually more important that the law be settled than it be settled right”.  

“Better”, said Lord Kerr, “that if the law cannot be settled right, it be not settled at all.”

The astute amongst you will note that Lord Atkin's observation came the year after Donoghue v Stevenson— a case which itself saw two dissents and which changed the law of negligence forever. Where would we be without it? I rather think there might be rather fewer lawyers, for a start.

But here, speaking to you in New Zealand, I cannot proceed without pausing to acknowledge a figure who is, I think, one of the greatest jurists the common law world has produced — and who is, most relevantly for this audience, one of your own. I speak of Lord Cooke of Thorndon. Robin Cooke served as President of the New Zealand Court of Appeal for fifteen years before becoming a Lord of Appeal in Ordinary in Westminster. The only Commonwealth judge in the past century to sit in the Appellate Committee of the House of Lords, he was a dissenter of the most constructive and ultimately influential kind: an internationalist, a rights-lawyer before rights-lawyering was fashionable, and a judge who never confused what the law said with what he believed it should say — but who always had a clear and principled view about the latter.

One of his most remarkable propositions, in the NZ case of Fraser in 1984, was that some rights may be so fundamental to the rule of law that even Parliament itself cannot abrogate them. It was a radical claim for a jurisdiction which follows the Westminster model. Many of his colleagues thought it went too far. In England, parliamentary sovereignty was considered, in orthodox Diceyan terms, to be absolute and unchallengeable. For Lord Cooke to suggest that courts might refuse to give effect to any Act of Parliament was regarded in many quarters as heretical, even if the Act were to violate fundamental constitutional principles.

But here is the thing about heresy: given sufficient time, it has a habit of becoming orthodoxy.

In Scotland, the seeds of Lord Cooke's thinking had already found some unlikely earlier expression. In MacCormick v Lord Advocate in 1953, Lord President Cooper had observed that the doctrine of unlimited parliamentary sovereignty familiar in English constitutional law had, as he put it, "no counterpart in Scottish constitutional law." 

Then came R (Jackson) v Attorney General in 2005. The House of Lords was asked whether the Hunting Act 2004 had been validly enacted using the Parliament Acts procedure. Their Lordships upheld the legislation. But in doing so, several of them made observations that, in their implications, went rather further than the immediate question required. Lord Steyn stated that parliamentary sovereignty is "a construct of the common law," and suggested that in exceptional circumstances — if Parliament were to seek to abolish judicial review, or remove the ordinary role of the courts — the judiciary might be compelled to consider whether Parliament had exceeded its authority. Lord Hope went further still, stating that the rule of law enforced by the courts is "the ultimate controlling factor on which our constitution is based," and that parliamentary sovereignty is "no longer, if it ever was, absolute." Baroness Hale similarly contemplated the existence of fundamental constitutional principles beyond Parliament's reach.

Now, before any of the constitutional lawyers in the room rise to correct me, I should be precise. These observations were obiter dicta. They were not necessary to the decision. No majority of their Lordships established a justiciable rule that an Act of the Westminster Parliament could be struck down for violating the rule of law or a fundamental common-law right. The Hunting Act was upheld, and the hunters were, legally at least, out of luck.

So the position is more nuanced than simply saying that the courts vindicated Lord Cooke. The best description, I think, is this: Jackson opened the door to a common-law constitutional limit on Westminster sovereignty: but it did not walk through it.

What it did do was provide substantial judicial support, at the very highest level of the United Kingdom's appellate system, for the proposition that Parliament might not be able to abolish the rule of law, judicial review, or the courts' essential constitutional function. For a proposition that had been regarded as radical when Lord Cooke advanced it, that is a remarkable development. The echoes of his thinking are unmistakable in the judgments of Lords Steyn and Hope. They remain, as yet, dicta rather than doctrine. But they are dicta from some of the most respected judicial minds — and they are, in the most meaningful sense, the sound of tomorrow's orthodoxy forming. In a world in which the rule of law is increasingly under attack, they may yet have significant future resonance.

The point I draw from all of this is not primarily a doctrinal one. It is the same point that Justice Ginsburg made about dissent. Lord Cooke was writing for tomorrow. He advanced a constitutional argument that, in his own day, many found extravagant. The response of orthodoxy was, in effect: "that cannot be right." And yet, many years on, the highest court in the United Kingdom found itself using language that Lord Cooke could have written himself. The argument has not yet been adopted as a binding rule. But the independent mind that advanced it has been proved — at the very least — far-sighted.

That is what independence of thought produces. Not always immediate victory. Sometimes the consolation prize is that history quietly vindicates you. It is, as consolation prizes go, a rather good one.

Independence of thought, then. But let us turn to the other dimension: independence from the state.

The independence of the judiciary from the state is accepted in all civilised democracies as a constitutional given. But equally important, and far less commonly discussed, is the independence of the legal profession itself. Consider what happens where the profession lacks that guarantee. Nepal, Zimbabwe, Turkey — all have seen terrible incursions into the independence of both the profession and the judiciary. The situation in Turkey was particularly alarming. Emergency decree laws allowed the state prosecutor to restrict a defence lawyer's right to examine the case file or make copies of it. Criminal defence lawyers were regularly associated with their clients, and threatened with being prosecuted themselves under attempted coup or anti-terrorism legislation.

When the state can prosecute a lawyer for representing a client, justice has ceased to function. The defendant may technically still have counsel, but that counsel operates under the sword of Damocles. The independence that makes representation meaningful has been destroyed. 

This blurring of the lines, this identification of lawyer with client, is a most alarming modern development. And as a profession we must share some of the blame.

We live in an age of social media, and that has brought remarkable benefits: democratic engagement, access to information, the ability of citizens to participate in conversations that were previously the preserve of elites. All of this is broadly, genuinely good.

But as with any cure, it has its unwelcome side effects. One of the most concerning, for our purposes, is the increasing tendency to identify lawyers with their clients and their clients' causes. Regrettably, this has not been the sole province of the keyboard warrior. Politicians and media organisations have engaged in it too. And so have we.

Consider the attacks on the last UK Prime Minister for having, in his previous career as a lawyer, acted for some allegedly bad people. How very dare he. Consider the persistent use of the phrase "lefty lawyers" in British political discourse — a phrase that, so far as I can work out, seems to apply to any lawyer doing their best for a client that the state would prefer not to have a case. And consider the description of the Court of Appeal judges who had ruled that Parliament must consent to Brexit as "enemies of the people": in a front-page headline, in a national newspaper. Enemies of the people. For obeying their judicial oaths.

The UN's Basic Principles on the Role of Lawyers make the principle clear: "Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions."

This is basic, and fundamental. Arguing a client's case does not mean that one espouses that case. Were it otherwise, no one accused of murder, of rape, of paedophilia, would ever obtain legal representation. Everyone is entitled to the presumption of innocence; and even the guilty are, in a civilised society, entitled to challenge the case brought by the state against them.

Counsel who argue cases on either or any side are just doing their job. One should feel free to disagree with the arguments they make. But one should not fall into the error of identifying lawyers with their clients or their causes. Play the ball. Not the lawyer.

The same applies to the judiciary — with one important additional dimension. Judges, unlike lawyers, are under a particular constitutional disadvantage: they cannot speak out in their own defence. When they are the subject of unwarranted attack, it falls to the legal profession to stand up for them.

Let me be clear about where the line falls. Judgments are fair game. They can be attacked as wrong in law, as ludicrous, as dangerous in their consequences. No complaint can be made of such commentary — it is an essential part of a healthy legal culture. But when criticism moves from the reasoning to the personnel — when nefarious or partisan motives are attributed to judges without foundation— that is when the line has been crossed. And that is when an independent legal profession must stand up for its independent judiciary. Not because judges are beyond reproach, but because they cannot answer for themselves, and because baseless attacks on their integrity are, in effect, attacks on the rule of law itself.

Because history tells us what happens when these principles are ceded — when the independence of the legal profession is not merely pressured, but destroyed.

Most horrifying of all the historical instances of this is what happened in Nazi Germany. All professional associations involved with the administration of justice were merged into the National Socialist League of German Jurists. In April 1933, Hitler passed some of the earliest antisemitic laws, purging Jewish and Socialist judges, lawyers, and court officers from their professions. He established special courts. Dissatisfied with acquittals in the ordinary court system, in 1934 he ordered the creation of the People's Court in Berlin to try treason and "important political cases." Under Roland Freisler, it became part of the Nazi system of terror, condemning tens of thousands as "Volk Vermin" and thousands more to death.

In the subsequent Nuremberg proceedings, officials from the German Ministry of Justice and members of the Nazi-era courts were charged with "judicial murder and other atrocities, which they committed by destroying law and justice in Germany, and then utilising the emptied forms of legal process for the persecution, enslavement and extermination on a large scale."

The emptied forms of legal process. It is a devastating phrase. Because the forms were maintained. There were still courts, still robes, still judgments. But the substance — the independence, the fairness, the ability to test and challenge — had been hollowed out. And inside that hollow shell: terror.

If you think this alarmist — horror stories from days long past, tales told to frighten children — I recommend a trip to Paris. At the entrance to the home of the Paris Bar, there is a map of the world. A spider's web of lines joins many countries to short biographies, each one identifying a lawyer who has suffered from persecution — even death — simply for doing their job: defending the rights of others. It stands as a reminder that the independence of the legal profession is not a comfortable abstraction. It is something for which lawyers have died. And wherever it is under threat, this profession must defend it.

We are fortunate, here in New Zealand and in Scotland alike, to live in jurisdictions where judicial independence is constitutionally valued. But fortunate must not mean complacent.

In Scotland, we recently navigated what I can only describe as a close shave. A review of the regulation of the legal profession made recommendations that many of us found alarming in their implications for professional independence. Proposals — and I am not exaggerating when I say this was actually proposed — were made that would have allowed Government to take control of the Law Society or of the Faculty of Advocates.

We fought back. We said this was outrageous. We were, of course, met with the familiar response: "Well, you would say that, wouldn't you." And then something remarkable happened. The senior judiciary intervened — so stung by the proposals that they ignored the convention to stand mute — and stated plainly that the recommendation’s failure to recognise the constitutional importance of the independence of the legal profession meant that any attempt to implement its recommendations would represent "a serious threat to the rule of law and, by extension, our democracy." The government listened. The resulting legislation, while imperfect, leaves the independence of the profession intact. 

New Zealand has its own ongoing debates about the structure and regulation of the profession. I will not pretend expertise in every chapter of that conversation. But the underlying principle is one I can speak to with confidence: any regulatory structure for the legal profession must place professional independence at its centre — not as a courtesy, and not as a concession to the guilded interests of lawyers, but as a constitutional requirement. Because without an independent legal profession, you cannot have an independent judiciary. And without an independent judiciary, the rule of law becomes a slogan rather than a reality.

But these pleas for restraint by others leads me to a plea for restraint by ourselves. The flip side of what I have been saying – don’t let the media or politicians identify us with our clients – means that we must play by the same rules. We must resist the temptation to crow about the virtuous causes for which we argue, when our clients deserve that description. If we want others not to identify our profession with their clients, we cannot in the same breath engage in that very same identification ourselves. What sort of world would we have if the legal profession only acts for “the good guys”?

And it you think that is me being silly, look at what has been proposed: not by some overbearing state, but by the International Bar Association itself.

The IBA has suggested introducing the concept of lawyers as gatekeepers: the idea that lawyers should decline to act for clients whose cause offends some vague notion of the public interest. Pause, if you will, to consider how that might work in practice. What is against the public interest? Well, pretty much every crime, for a start. Who is to judge which cases merit representation? To arrogate to the lawyer the role of judge and jury is not merely undesirable — it is unacceptable. Access to justice would become a popularity contest. The accused murderer, the alleged terrorist, the corporate defendant that has attracted public outrage — all might find themselves without representation, not because no competent lawyer existed, but because no lawyer wished to be associated with their cause. That is not justice. It is a system that works for the popular and the sympathetic, and abandons the rest.

When the bars of Scotland, Ireland, Northern Ireland and England and Wales put their collective objections on record, the IBA proposal was diluted and amended to acknowledge the importance of the Cab Rank rule. But the fact that it was proposed at all — by the international body that is supposed to represent and protect our independence — tells you something important about the current of thought running against us. We should not be complacent.

The independent barrister who stands up in court for an unpopular client is not expressing approval of that client. She is expressing something far more important: the conviction that the system works only if everyone within it has access to skilled, fearless, independent advocacy. That conviction should be the common property of every member of every independent referral bar in the world.

To conclude. Be independent — in thought and in deed. That applies as much to the most junior member as to the most senior silk. Independence is not merely an institutional quality. It is a personal one. It means being prepared to disagree with received wisdom, to question the approach of those senior to you, and to say "I think this is wrong" in the face of pressure to conform. I will never criticise a junior who questions an approach I am taking to a case. On the contrary, it is one of the most valuable things a junior can do. It allows a case to be stress-tested, and gives it the best chance of reaching the right result.

It means standing up for the independence of the profession when it is challenged — not only when your own interests are directly engaged, but when a colleague is unfairly attacked for representing an unpopular client, when a judge is subjected to abuse rather than argument, when a government conflates a lawyer's job with their politics.

Justice Michael Kirby of the High Court of Australia had it right: "Where there is no independent legal profession, there can be no independent judiciary, no rule of law, no justice, no democracy, and no freedom."

Friends and colleagues: the independence of the legal profession — the independence of your bar — is a matter of constitutional importance. It is not ours to sacrifice in pursuit of popularity, institutional convenience, or a comfortable life. It belongs to the society we serve. Cherish it. Fight for it.

And where necessary — be awkward about it.

_{(c) 2026, R. Dunlop KC}