Photographs courtesy of Danielle Philomena Photography (c) 2015
Lord Macdonald delivered the second British Ukrainian Society lecture in the UK Parliament
2 December 2015
The former Director of Public Prosecutions in England and Wales, Lord Macdonald, delivered the second British Ukrainian Society lecture in the UK Parliament on 2 December.
In March 2015, Lord Macdonald was appointed to lead the Rule of Law work stream at the Agency for the Modernisation of Ukraine to help the country reform its law enforcement system. In that capacity, he visited Ukraine on a number of occasions, holding roundtable discussions with judges, advocates and other legal specialists about the challenges facing Ukraine’s judiciary.
Based on his research, Lord Macdonald formulated proposals for reforms that not only promise a more stable democratic future for Ukraine, and greater legitimacy for some of its major institutions, but which are also capable of early implementation. This document is available for download here.
It was the findings of his work in Ukraine that Lord Macdonald presented on the night to the assembled British audience that included many legal professionals. The Macmillan Room in Portcullis House was packed to its full capacity with 75 people in attendance including representatives of London’s business community, educational institutions and not-for-profits, as well as politicians and diplomats. The lecture also drew interest from the media with leading Ukrainian broadcaster, Inter TV, covering the event (see the report here).
Setting the scene for the discussion, Lord Macdonald made an honest assessment of how the present problems with Ukraine’s judiciary affect the country. “Without the proper functioning of the rule of law, Ukrainian independence is an unfinished project. Its absence has led, as it always does, to impunity and corruption. It is causing catastrophic damage to the Ukrainian economy,” he said.
Therefore, he said, the first imperative is for Ukrainians to apply their own Constitution. “A recognition and effective protection of the rule of law must become a central aim of Ukrainian society. And lawyers, as judges and advocates, have to play a fundamental role in this endeavour,” said Lord Macdonald. “Politicians and businessmen, too, have to do everything they can to create a country where businesses and citizens alike come to understand the value of losing a case fairly before an independent court, over and above procuring victories through corrupt means.”
Lord Macdonald also recognised that Ukrainian Courts have failed to emerge out of the system of centralised state power. “It is the courts that should take responsibility for creating culture of legality, fairness, liberty and equality. In doing this, they must be prepared to challenge power. Structural independence for the judiciary and their insulation from political interference are critical,” he noted.
That said, Lord Macdonald stressed that paramount responsibility for cementing the rule of law in Ukraine lies with the judges, adding that corruption in Ukraine’s justice sector is systemic. “It includes pure bribery, direct communication with judges based on threat and manipulation, and indirect communications through the court hierarchy or powerful intermediaries,” he said.
“In Ukraine, we repeatedly met judges who admitted that they had been the subject of attempted bribery or professional duress at different stages in their career. We also met some judges who, by their own admission, had secured their positions through nepotism,” said Lord Macdonald. “They were open about the fact that they had become judges to gain all the financial advantages corruption can bring. Both lawyers and judges admitted to us that there were local tariffs for purchasing court orders.”
In his recommendations, Lord Macdonald stressed that raising judicial salaries is clearly required, not simply as an alternative to illicit subsidizing of very low incomes, but also to attract talented people from private practice. But this also has to go in hand with judicial training and continuing assessment. He called for a proper re-evaluation of Ukrainian judges, who should be assessed on their qualification competencies that should include (1) legal ability, (2) integrity and (3) the capacity to justify the source of one’s wealth.
Lord Macdonald also suggested that, in order to restore the dignity of the judiciary, it is essential that previous corruption should be exposed rather than the truth about it being suppressed. “This means that serious consideration must also be given to providing judges with immunity from prosecution based on full and frank disclosure of their past wrongdoing,” he said, adding that this would not mean that a judge who admits to taking bribes would necessarily avoid dismissal from office for life. “But it may be that admissions to lesser faults, such as delaying justice because of a pressure from the head of a court to do so, could allow for the candidate to reapply for judicial office,” he explained.
At the same time, Lord Macdonald suggested that there should be created a criminal offence of withholding information concerning corruption which would apply to judges, law enforcement agents, lawyers and other public officials. Other measures of achieving greater transparency should involve publication of judgments, tracking of cases in terms of allocation, pleadings, outcomes and orders, and video streaming of cases, especially cases of public interest.
Lord Macdonald also urged that Ukrainian judges should learn from best European judicial practices and uphold European and international human rights values. “The idea of the rule of law will never become transformative of Ukrainian society until it is grounded in local culture and heritage,” he stressed.
Moving on to discussing Ukrainian lawyers, Lord Macdonald noted that they can do more to be part of a solution instead of being, as they are at present, an important part of the problem. “The truth is that it is almost impossible to conduct litigation in Ukraine unless you are involved in corruption to some extent. Others make a business of it. Even apparently principled lawyers will intermittently turn a blind eye to important clients who tell them they plan to bribe a judge to ensure a result,” he said.
“Those in a position to make a difference have not done so, largely because of the financial incentives that maintain the status quo,” continued Lord Macdonald, adding that still there are outstanding lawyers in the country who are capable of leading the reform process from within the state system, as well as challenging it from without. He went on to talk about the importance of such lawyers entering public service, and how lawyers in private practice should look to create ‘virtuous circles’ of non-corruption by entering into such agreements between private firms.
In his concluding remarks, Lord Macdonald stressed that the importance of the rule of law is not merely a philosophical endeavour. “The fact is that Ukraine’s most pressing need is to attract large-scale foreign direct investment, but investors will inevitably seek confirmation of demonstrable compliance with international rule of law standards as a precondition for this,” he said. “Indeed the whole question of EU-Ukraine integration has an inescapable and prominent rule of law component. So this is not simply a moral imperative, it is also is a matter of pounds and pence. It’s good business.” Lord Macdonald’s full speech is available for download here.
This was followed by a Q&A session. The Chairman of the British Ukrainian Society, Lord Risby, closed the night by inviting the audience to review another prominent research written by the former Prime Minister of Poland, Wlodzimierz Cimoszewicz, who leads the Anti-Corruption & Modern Government work stream at the Agency for the Modernisation of Ukraine. His work analyses the processes which Poland undertook to successfully remove corruption, and is available for download here.
Lord Risby also recognised the efforts of the Slynn Foundation, which draws on the expertise of retired High Court judges who advise Central and Eastern European and Post-Soviet countries on transforming their judiciary systems. The Slynn Foundation published a report titled The Rule of Law in Ukraine based on a visit to the country in September 2008, which can be downloaded here.
Lord Risby gave a special welcome to Baroness Smith, who is a Patron of the British Ukrainian Society and Founding Member of the John Smith Fellowship Trust, which was set up in memory of her late husband and finances young professionals from Ukraine and other countries to come to the UK to study the principles of democracy and good government.
Having thanked Lord Macdonald and his team for their exceptional work and devotion to the cause of Ukraine, Lord Risby expressed his hope that the comprehensive road map set out in their research will become part of the reform process in Ukraine that will help the country fully become a part of the European family of nations.
This two-year British Ukrainian Society series of lectures in the spheres of politics and culture is run in partnership with the All-Party Parliamentary Group on Ukraine. It aims to give anyone interested in Ukrainian affairs an opportunity to hear from British and Ukrainian politicians, diplomats, authors, artists and experts from various professions who are in some way involved in noteworthy work relating to Ukraine.
The next British Ukrainian Society lecture at the UK Parliament will be delivered by Andy Hunder, President of the American Chamber of Commerce in Ukraine and former Director of the Ukrainian Institute in London, on 8 February 2016. Spaces are limited. To attend, and for other enquiries, please RSVP to the London Secretariat of the British Ukrainian Society at email@example.com.
Baron Macdonald of River Glaven QC is a Member of the House of Lords and Deputy High Court Judge.
Ken Macdonald QC has practised at the Bar since 1978. A founder member of Matrix Chambers, he was appointed a Recorder of the Crown Court in 2001 and elected Chairman of the Criminal Bar Association in 2003. He served as Director of Public Prosecutions (DPP) between 2003-2008, the first prominent defence lawyer to have been appointed to that post.
As DPP, Ken Macdonald established the Counter Terrorism Division, the Organised Crime Division, the Special Crime Division and the Fraud Division. He played a major role across Whitehall in the development of criminal justice policy, especially in relation to international treaties and jurisdictional issues, mutual legal assistance, extradition, terrorism and grave cross border crime.
Ken Macdonald became a Bencher of the Inner Temple in 2004, and he was knighted for services to the law in 2007. Appointed a Deputy High Court Judge in 2010, he entered the House of Lords in the same year.
Lord Macdonald’s practice ranges from business and corporate crime and associated extraditions, to financial regulation, sanctions busting, terrorism, espionage and human rights law. His clients have included international media organisations, prominent British banks, major foreign defence corporations, and many family offices and private individuals. He has a special interest in emerging international criminal liabilities.
Lord Macdonald was a Visiting Professor of Law at the London School of Economics in 2009-2012 and is a member of the Advisory Board of the Centre for Criminology at the University of Oxford. In 2012, he became Warden of Wadham College, University of Oxford.
In March 2015, Lord Macdonald was appointed to lead the Rule of Law work stream at the Agency for the Modernisation of Ukraine, and subsequently developed a set of proposals to help the country reform its law enforcement system.