Law as a New Religion and Other Topics

Wednesday, 4 December 2013 - 6:00pm
Barnard’s Inn Hall





Overview

Law is everywhere providing answers to almost everything. Ever larger numbers of students want to be part of the legal mechanisms that control us, regulate us and take over from politicians when politicians sense their own incapability. It is almost a new religion. In this lecture – and in the discussion to follow – some of the issues dealt with in earlier years by Professor Bogdanor (such as in his lectures, Judges or Legislators: Who Should Rule?, The Judges and the Constitution and The Human Rights Act: Cornerstone of a New Constitution) will be reviewed as will the effect of Europe on our law.






Transcript of the lecture

 

4 December 2013
 
Law as a New Religion and Other Topics
 
Professor Geoffrey Nice QC
 
 
Law is everywhere providing answers to almost everything.  Ever larger numbers of students want to be part of  the mechanism that control us, regulate us and take over from politicians when politicians sense incapability.  It is almost a new religion. In this lecture – and in he discussion t follow – some of the issues dealt with in earlier years by Professor Bogdanor will be reviewed to deal with events since his lecture, including what he dealt with "Judges or Legislators? Who should rule?" [16 March 2009]"The Judges and the Constitution" [30 May 2006] and the "The Human Rights Act" [25 January 2005] along with the general the effect of Europe on our law.
 
The issues being dealt with in this lecture, rooted in earlier lectures of Gresham Professor Bogdanor, were identified as an appropriate topic for a lecture by a member of the audience, who may or not be with us tonight.
 
I added to those issues an opening question of my own about the growth in the number of lawyers, in the world in general and in the UK in particular.  It is a question that fits with the questions Professor Bogdanor asked about who rules us – the UK or Europe; the executive or the judges.
 
However, as I began preparation for this lecture I wondered whether I had been wise to leave its subject to a member of the audience.  Happily, as time has passed, I saw that the topics should indeed be addressed in this sort of gathering; more recently I discovered that - by chance and as with a couple other of my lectures – it enjoys a coincidence of timing not foreseen when the lecture series was planned. 
 
For example, one of the issues raised by Professor Bogdanor - Human rights, European or home grown – may well feature in voting choices about UK withdrawal from the EU, and even in decision about Scotland separating from the UK.  Making these choices wisely may require a bit more understanding of how the UK operates constitutionally than the non-lawyer citizen typically requires.
 
Further, by happy coincidence, there have been two very recent lectures, one by Lord Justice Laws the other by Lord Sumption two of the country’s greatest authorities on constitutional issues, on similar topics that crystallise certain aspects of the present and important public debate. 
 
What, in reality, does the educated non-lawyer citizen know of our constitution?  In a sentence, probably that it is unwritten (and has to be derived from various sources).  S/he may also know that Parliament is in some sense sovereign and can make any law it wants to.  Professor Bogdanor’s lectures showed how these simple propositions have now to be reviewed. 
 
Our Constitution is regularly contrasted with the Constitution of the USA.  One thing that can be said about citizen knowledge is that it will never be possible for UK citizens to achieve an intimacy with our unwritten constitution of the kind Americans may have with theirs because it is much more difficult to understand something derived from many sources - that may be changing unperceived over time - than it is to comprehend the US Constitution that exists on a single piece of paper.  
 
What is clear is that however great or limited may be the UK citizen’s understanding of her/his country’s constitution, s/he and the politicians elected have been turning to the law for help or for control in ever more activities. Statistics show as much.  The number of practising solicitors has more than tripled in just 30 years. In the last 5 or so years the number of barristers at the self-employed Bar at about 5% per year. 
 
I was not sure what this reveals about ourselves but have feared instinctively that it was unlikely to be healthy.  I wondered whether, by way of giving a broader setting to Professor Bogdanors’s issues that we need to explore, law was becoming or has become the new religion.  I was to find my lecture caption embodying this notion perhaps reflected in the thinking of one of the two legal luminaries who have so recently provided illuminating lectures.  By its increasing – ever increasing – role in our lives has the law become a new religion?  Are its practitioners and judges filling priestly and Episcopal (or higher) functions wherever a problem with an ethical or moral component needs resolution? 
 
I confess to scepticism about lawyers, not just because I might have preferred to have done something else as a career and found myself by default in lawyers’ company for too much of my working life.  I may simply be an example of the professional person who George Bernard Shaw said inevitably becomes a sceptic concerning his profession.  But he said that about those who ‘master their profession’ – so perhaps not me. 
 
You and I must, therefore, be cautious about my scepticism and ask what good reasons there may be for such an increase in lawyers.  There are several and it has not all been as a consequence of the generous grant of Legal Aid for criminal and civil cases that happened in the 1970s and 1980s.  A few examples:  
First, it was not until 1964 that the Employment Tribunals – now an established part of our legal life – were created (as Industrial Tribunals) leading to many lawyers specialising in the regulation of working practices.  Before that the courts could and did deal with employment issues under the general law of contract but there was nothing like the scope for pursuing employers over unfair dismissals, unequal treatment etc that has developed since.  Few would say this development – and the associated increase of work for lawyers – has been a bad thing.
 
Second, Administrative Law has expanded enormously.  Here is an example of how and why.  Some in the audience will recall how GCHQ, now discussed daily in the media, used to be a shadowy body known to provide signals intelligence to the British government and armed forces although prior to 1983 its existence was not acknowledged, despite the fact that it openly recruited graduates. 
 
Following a spy scandal in 1983 Margaret Thatcher, herself the ex officio Minister for the Civil Service, decided that GCHQ employees would not be allowed to join a trade union for national security reasons and enforced the decision through an Order in Council, an exercise of the Royal Prerogative.  Despite an extensive publicity campaign by trade unions, the government refused to reverse its decision, instead offering affected employees the choice between £1,000 and membership of a Civil Service staff association or dismissal. Those employees who were dismissed could not turn to an industrial tribunal to test the lawfulness of their dismissal, as they were not then covered by the relevant employment legislation.  
 
The Council of Civil Service Unions sought judicial review of the decision that had been made by the Prime Minister, who had conferred only with a select group of ministers rather than the full Cabinet in order to make the decision (in a way similar to the decision made to authorise the Suez operation of 1956). 
 
The first instance judge held that the employees of GCHQ had a right to consultation, and that the lack of consultation made the decision invalid. A conservative Court of Appeal - Lord Lane CJ, Watkins and May LJJ – took a "strongly non-interventionist stance", holding that judicial review could not be used to challenge the use of the Royal Prerogative because the determination of national security issues was an executive function and it would be inappropriate for the courts to intervene. The House of Lords - Lord Scarman, Lord Diplock, Lord Roskill and Lord Brightman - overruled the Court of Appeal holding either that (i) the Royal Prerogative was by default subject to judicial review or (ii) that any prerogative power which impacted on a person's "private rights or legitimate expectations" was amenable to review or (iii) that powers delegated from the Monarch – by delegation to the Minister for the Civil Service in this case - could be subject to judicial review.  Despite this determination of legal rights and wrongs the appeal failed on national security grounds. 
 
Until this case courts had traditionally been unwilling to subject prerogative powers to judicial review, being prepared only to state whether such powers existed, but not being prepared to express a view on whether they had been used appropriately.  The GCHQ case, therefore, was highly important; it determined that the application of judicial review would be dependant on the nature of a particular governmental power, not its source.  While the use of the Royal Prerogative for national security issues may normally be outside the scope of the courts, most other uses of the Prerogative are now judicially reviewable.  
 
This case may be seen as the start, or part, of what, one academic argues, has been a slow transformation in the role legal remedies play in ensuring conformity to the basic values of democratic constitutionalism.  She argues that the process may have started when distrust was felt among socialist politicians and the intellectual judicial elites about the use of the rhetoric of constitutionalism to attack the actions of the trade unions in the General Strike of 1926.   
 
She also argues that ‘The (re)emergence of much stronger regional identities in the ‘Celtic Fringe’, the impact of Europeanisation, the existence of a growing disconnect from established political parties and the legacy of twenty-five years of political division and armed conflict in Northern Ireland have all helped to destabilise the existing constitutional order and create a demand for enhanced legal regulation of the exercise of state power.’
 
But, she suggests:  ‘This shift in approach has resulted in a significant expansion of the role of the judiciary in the UK constitutional system, driven to a considerable extent by the influence of the ECHR and the incorporation of Convention rights into the UK legal system via the Human Rights Act 1998.’ And this brings us to the territory that, with or without detailed understanding of our Constitution, can excite many or most citizens.
 
Once the courts started to require discretionary power, in particular the royal prerogative, to be exercised in conformity with the rule of law UK judges even dared to assert authority over the prerogative used in the area of foreign relations for example in the case of R (Abbassi) v Secretary of State for Foreign and Commonwealth Affairs where an order was made by a court requiring the UK Foreign Secretary to make representations to the US Government to secure the release of British prisoners held in Guantanamo Bay.  There are many other examples including cases concerning prisoners here and their rights and asylum seekers.  
 
One important case was where Asylum seekers were, by ministerial regulations, deprived of the right to welfare support.  The regulations were found to be ultra vires, on the basis that the power to regulate the provision of welfare through the Immigration and Asylum Act 1993, could not be presumed to have justified its use to drive individuals (asylum seeks deprived of welfare) into a state of destitution. 
 
Of course there are individual Administrative Law decisions that may inflame the readers of some newspapers but, generally, I doubt if there would be a majority vote against the law doing most, at least, of what it has done in the field of Administrative Law with its associated increase in work for lawyers.
 
Some early European involvement in our law of the ECHR, predating the UK’s 1998 Human Rights act, will be familiar.  For example the Case of McCann and Others in 1995 concerned the killing by UK security forces in Gibraltar of Daniel McCann, Sean Savage and Mairead Farrell in 1995 who were suspected of being about to carry out a terrorist attack there.  
 
The ECHR found:
‘In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2(2)(a) of the Convention.  
 
The three were, however, found to be terrorists and their families received no financial relief. 
 
Less familiar may be the Case of Chahal who, in 1996 claimed that his deportation to India (after being arrested for his political activity in the UK and on suspicion of conspiracy to kill the Indian PM) would result in a real risk of torture, inhuman or degrading treatment which would violate article 3 of the European Convention; he also claimed a violation of his right to freedom of liberty guaranteed by article 5.  The ECHR found a violation of Art 3 and Art 5(4) Article 3 contained a guarantee which is absolute in expulsion cases so the UK could not rely on its national security interest to justify the deportation of the applicant. The applicant would face a real risk of ill treatment if deported to India.    
 
The development of Administrative Law under our own unwritten constitution, affected as it is by Human Rights law, may lead us again to glance enviously at the USA where the written Constitution more readily allows courts – any court I think – to strike down a law as unconstitutional.  We may have in mind, from news stories if from no deeper research, how the American Constitution was relied on for social change of great importance. In the third of Professor Bogdanor’s lectures set for for tonight’s consideration he shared the platform with an American academic, Christina Rodriguez.  Her lecture provides a valuable antidote to too much of the ‘the grass is greener’ approach to the use of law.  She explains three – for me – interesting things:  first how the power of courts in the USA to strike down unconstitutional laws can lead to the legislature passing laws it knows will be struck down and thus to being less responsible in the discharge of its legislating duties to the public.  Second, the famous 1953 case of Brown v Board of education  cited by those of liberal persuasion for its role in ending racial segregation, in fact led, when delivered, to such discontent in the voting public that the decision was not acted on for years and then only when the Voting Rights Act of 1965 was enacted.  Third that the 1973 case of Roe v Wade  that struck down a state law prohibiting abortion led to a backlash from the public galvanizing a certain segment of the American population and giving them a single issue around which to mobilise in support of the Republican Party.  Even if, as she thought, it might have been going a bit far to blame all shortcomings of the 1980s and the election of Ronald Reagan on Roe v. Wade, the history revealed that the Court intervened in a debate that was going on in the political process at far too early a stage.  It was attempting to settle a controversy that the people themselves had not themselves yet resolved.  For her, the American system is one where the courts are in a developing dialogue with the legislature over topics such as discrimination and abortion.  This may in some significant ways be parallel to the dialogue that has now to exist between the UK courts and legislature and the European courts to which they have to show respect.  If so then we may be able to take heart from the American experience.  This parallel finds resonance in the views of Lord Sumption, as I read his lecture, and I will return to it later.
 
A further area of growth for lawyers has been in regulation of professions and of trades.  Regulation – of banks, lawyers, doctors, nurses, airline pilots, architects – has all developed enormously over the last few decades and some of that regulation needs lawyers.  The professional directories of barristers’ chambers shows that those chambers that used to advertise exclusively practitioners doing criminal law cases will now very often trumpet their work in regulation.  If you talk to the barristers concerned they will explain – they all do – that regulation work is better paid because privately financed and a substitute for the less well paid criminal work they can no longer afford to do.  Despite that, overall, an increase in work for lawyers.
 
And then, known to many not least from advertising that is disagreeable to some, has been the growth in personal injury litigation.  We may all have reservations about the increasing monetisation of the natural incidents of life by the ‘compensation culture’ that employs many lawyers at good rates of pay.  Arguments against (and for) it are easy to articulate.   The solution – practised in other countries - of no fault compensation for certain categories of accidents remains a possibility for a society to consider when it is prepared to put the welfare of the injured above the interests of minimising tax and insurance premium levels.  As it happens, the legal aid system we used to have for civil claims was actually rather cost effective, it is now understood.  Because of the ‘filter’ established before civil cases – accident claims for example - were brought, most cases supported by Legal Aid were won and there was recovery of litigation costs from defendants’ insurers.  However – perhaps for reasons of political creed – ‘no win no fee’ arrangements were introduced where a claimant lawyer could get up to twice as much as his normal fee from the defendant when he wins his case but nothing when he loses.  This has led to more accident litigation and to some claimant lawyers earning quite extravagant sums of money. The scheme is being scrapped and substituted by another but the opportunities for lawyers in bringing claims for accident victims has had a significant effect on the amount of work for lawyers. 
 
But this is not the end of the list of reasons for lawyers becoming more numerous.  
 
How often, as you allow John Humphries on the Today Programme to tell you how the world is doing, do you hear of an inquiry being established into this, that or the other thing?  Very often.  It seems very, very often.  Many – most – inquiries involve lawyers.  I would be only too pleased to work on or preside over an inquiry but, these days, I would have to wonder whether I was exercising, or being part of the exercise of, power that should not be in lawyers’ hands.  Many of these inquiries involve substantial policy decisions and whereas it is understandable that lawyers might be used liberally to establish facts – on the assumption that their courtroom skills can enable them to do that - the policy recommendations that follow the factual findings should surely be for others.  But is that how inquiries are now regarded? Probably not and I am simply not sure there is real justification for taking from politicians things that should be theirs to handle in ways answerable to the public they serve.   Again, in this, I may find support from Lord Sumption.
 
The recurring statements that politicians are terrible, or worse than they were years ago is simply that – recurring.  And probably constant.  There may have been greater superficial deference to politicians in some earlier decades but I am not convinced there was greater trust overall.  It is inevitable – and possibly healthy – to question and distrust those whom we elect to rule us from time to time or on a regular basis.  Deciding to allow others to run your life - declining or refusing to participate in politics yourself has the effect, as Plato explained long ago, of exposing you to the penalty of being governed by your inferiors.  Nothing is new.
 
 If, on detailed analysis, there have been far more public inquiries presided over and / or involving lawyers than there used to be and if the conclusions that such inquiries are now being invited to reach are far more related to policy than they used to be – compare Lord Justice Leveson’s policy recommendations on the press with Lord Denning’s process recommendations in his report on Profumo – then does this explain something about what lawyers may have become and, more concerning, what they might seek to be. 
 
 Lord Sumption expressed the position this way:
‘We live in an age of unbounded confidence in the value and efficacy of law as an engine of social and moral improvement.’
 
I am not sure I agree with him over that; some segments of society may trust the law, others may turn to it for self interest others clearly mistrust it.  He continued by explaining that the state, of which the courts are a part, has become the provider of basic standards of public amenity, the guarantor of minimum levels of security and, increasingly, the regulator of economic activity and the protector against misfortune of every kind. The public expects nothing less. Yet protection at this level calls for a general scheme of rights and a more intrusive role for law. In Europe, he said: 
‘…we regulate almost every aspect of employment practice and commercial life, at any rate so far as it impinges upon consumers. We design codes of safety regulation designed to eliminate risk in all of the infinite variety of human activities. New criminal offences appear like mushrooms after every rainstorm. It has been estimated that in the decade from 1997 to 2007, more than 3,000 new criminal or regulatory offences were added to the statute-book of the United Kingdom.  Turning from statute to common law, a wide range of acts which a century ago would have been regarded as casual misfortunes or as governed only by principles of courtesy, are now actionable torts. 
 
He suggested that the problem is that the technical and intellectual capacities of mankind have grown faster than its moral sensibilities or its co-operative instincts and concluded the passage summarised above with these words:
‘At the same time other restraints on the autonomy and self-interest of men, such as religion and social convention, have lost much of their former force, at any rate in the west. The role of social and religious sentiment, which was once so critical in the life of our societies, has been largely taken over by law.’
 
The member of the audience who raised Professor Bogdanor’s lectures was clearly concerned about the impact of European law on our law and practice.   Many others are too.  The sovereignty of UK law and lawmaking is preserved within the structure that includes the ECHR a product of the Council of Europe (Strasbourg) and EU Law itself.  UK courts are ultimately able to make a declaration of ‘incompatibility’ of European and UK law (statute or decision) where our law is in conflict with European law.  After that a dialogue is expected and, save in exceptional circumstances, the UK will change its laws to ensure compatibility with European law.   It is in this that I suggest the structured way the UK has to negotiate with the European lawmakers may be somewhat similar to the way – very different in detail of course – that in the US system, a ‘dialogue’ happens when development of thought in the courts may be out of step with development of thinking on the same topics among the public or their elected representatives.
 
It may be worth observing – straight away – that the concept of a ‘declaration of incompatibility’ and its slow consequences must be harder for the UK newspaper reading member of the public to grasp than it is for the US citizen to grasp the concept of a law being contrary to the provisions of the Constitution.  And it may be worth suggesting that the best laws are those are most easily understood - they are more likely to win approval.  Complicated laws and complex legal systems such as the EU creates and that serve uncertain and even mixed objectives often fail to gather support or to work and are vulnerable to  populist  - and certainly to popular - attack. 
 
Professor Bogdanor’s lectures, that a member of my audience asked me to use as a point of departure for this part of my lecture, provide precisely that.  As an expert in constitutional issues his lectures from 2005 to 2009 asked questions with foresight of great value.  I will pick out a part of his conclusions or concluding questions and see how things have proceeded.
 
In his lecture on ‘the Human Rights Act: Cornerstone of a New Constitution delivered on 25 January 2005’  Professor Bogdanor dealt with the December 2004 case of A v Secretary of State for the Home Department brought under the Anti-Terrorism, Crime and Security Act, 2001.   The Guardian headline at the time read `Judges’ Verdict on Terror laws Provokes Constitutional Crisis’.
 
At issue was whether suspected terrorists, who were not British citizens, could be held indefinitely without trial and without charge if the Home Secretary believed that they were a threat to national security. Could there be detention at the wish of the executive?  The Bill for the statute had been debated for only 16 hours in the House of Commons, though longer in the Lords and received the Royal Assent in December 2001, just one month after being introduced into the Commons. At this lecture Professor Bogdanor was concerned about whether the House of Commons was really scrutinizing legislation bearing on human rights very effectively.  As to the case itself, the Law lords said that the relevant part of the Act was incompatible with European Convention rights on personal liberty and the prohibition on discrimination but the Government had not by the time of the lecture said that it would recommend Parliament to change the relevant part of the Act. With an election looming the government was frightened of being seen as soft on law and order.
 
He reminded us that the defence of rights is often the defence of the rights of very unpopular minorities – suspected terrorists, bogus asylum seekers, suspected paedophiles and asked whether Parliament which guarantees our rights would do so, when very unpopular minorities were in question?  With this problem in mind was this EU / ECHR / UK compromise sufficient – or did we need to go further and to give the courts the power to determine our rights?
 
In June 2005 the Case of Blackstock v. The United Kingdom followed a conviction for wounding a police officer when Blackstock tried to resist arrest, Blackstock complained to the ECHR about the lapse of time (22 months) between the reviews concerning his continued detention as a discretionary life prisoner under Article 5, sec 4 and 5 provisions on right to liberty and security.  The ECHR found that there was a violation of both Article 5, sec 4 and 5 because under 5(4) the Court was 
“not persuaded that the procedure adopted by the authorities, which led to an overall delay of 22 months, paid due regard to the need for expedition” and “the applicant did not receive a review of the lawfulness of his detention in accordance with the requirements of that provision.” The ECHR noted that applicability of Article 5 (5) “is not dependent on a domestic finding of unlawfulness or proof that but for the breach the person would have been released.” 
 
In November 2005 in Massey v. The United Kingdom, a case involving investigation of a man accused of sexual assaults, the ECHR held that “there are several periods of delay” in the process – amounting to over 4 years – “which, taken together and in light of the date of the events under examination, disclose that the proceedings did not proceed with the necessary expedition and failed to satisfy the reasonable time requirement. There has, accordingly, been a violation of Article 6 § 1 of the Convention.” 
 
In The Judges and the Constitution delivered on 30 May 2006 Professor Bogadnor suggested said that the constitutional jurist Dicey was correct in saying that the roots of the idea of parliamentary sovereignty `lie deep in the history of the English people and in the peculiar development of the English Constitution’. If this is correct, he asked, then judges cannot alter this principle of the sovereignty of Parliament unless Parliament itself, and perhaps the people as well, in a referendum, agree. He noted that survey evidence seems to show that people trust the judges much more than they trust politicians and, indeed, it might be argued that the judges are filling a vacuum. They are being asked to decide cases which entrench upon government precisely because politicians are less trusted. Perhaps there is, in the popular mind, a gap in the constitution which is being filled by the judges. This would be a striking development. For, after all, the House of Commons is more democratic and representative than it has ever been. A hundred years ago, when just 60% of adult males, but no women, had the vote, yet Parliament was trusted much more than it is now to protect civil liberties.
 
In September 2006 in Blake v. The United Kingdom George Blake claimed that his rights were violated when legal action - which stopped him from profiting on his book about being a double agent – took nine years to be resolved.  The ECHR agreed with the applicant that “ the length of the proceedings was incompatible with the “reasonable time” requirement, of Article 6 § 1” and found that there has “been a violation of that provision, in that the applicant's “civil rights and obligations” were not determined within ‘a reasonable time’” and with diligence. 
 
In the third lecture  Judges or Legislators: Who Should Rule? By Professor Bogdanor and Professor Cristina Rodriguez delivered 16 March 2009 Professor Bogdanor reminded us that the discretion remained with the Government and Parliament to alter the law when a court had issued a Declaration of Incompatibility which was merely a statement of no legal effect, the law remaining as it had been and it being up to Parliament to act and to put things right.  In fact, it was fair to say that it had done so in every case so far.  There had been some twenty cases of Declarations, and on each occasion, Parliament, sometimes after a bit of delay, admittedly, has altered the law to fit in with that.
 
He gave as his own view that the Human Rights Act is of value primarily for small and unpopular minorities who cannot use electoral and political processes effectively.  Larger minorities, he thought, were better advised to use electoral and political processes, and in general, members of ethnic minorities in Britain are able to use the political and electoral machinery to secure their rights where they are infringed. 
 
Where there is a clash of rights and interests different people of good will could come down on either side, and those issues are best settled politically.  There was a danger of making judges decision-makers on issues which they are not really equipped to decide, and perhaps also a danger of putting liberal prejudices we may happen to have into eternal verities decided by a court.  The fact that we may happen to have certain liberal views does not necessarily mean that they ought to be enforced by the judges.
 
He observed that Supreme Court Judge Jackson said in the 1930s; that judges were not final because they were infallible; they were only thought to be infallible because they were final.  There is no appeal from a judge's decision if you do not like it.  If you do not like a politician's decision, it can, in principle, be changed at the next General Election.  You cannot so easily change the decision of a judge.
 
The philosophy of human rights, he suggested, is not wholly adequate to meet the kinds of challenges that we face in our multicultural society, and therefore judges should be given great power, but in very limited areas, where you are dealing with small and unpopular minorities - the rights of prisoners, the rights of suspected terrorists, and so on.  Our political systems are rather good at defending the rights of nice people, like ourselves, but not necessarily so good at defending the rights of people who may not be so nice, and some of these people are not very nice, but they have rights all the same.  It is not a nice people's rights act, it is a Human Rights Act, and I think that perhaps is worth mentioning. 
 
His American fellow lecturer, Christina Rodriguez, explained how in survey after survey, the courts come out as everyone's favourite branch of Government.  Congress rarely breaks the 20% approval mark.  The President, depending on who we are talking about, can get up 50-60%, but only when the economy is good.  But the country over, people are highly supportive of the work of the courts, and a lot of what the courts do, insofar as the public is concerned, is hold the Legislature to account.
So the main reason why judicial review, from an American perspective was established early, and has been reinforced often, was because the written Constitution enshrined both a structure of Government and a set of rights that were supposed to be beyond the sovereign will of the Legislature.  That was, in part, a deliberate design to reject the British model; the American colonists, for a variety of reasons, did not believe that Parliament was doing a very good job of protecting their rights.  Among the things that were thought to be necessary was to enshrine the individual liberties of citizens and to have them protected from the will of the Legislature.  Our Constitution, she said, is fundamental law; law that the Legislature cannot abrogate.
 
 A few further cases of EU l and ECHR law affecting our own.
 
In July 2011 in Al-Skeini and Others v. The United Kingdom The ECHR was concerned with the applicability of UK human rights laws in Iraq where Iraqi civilians had been killed by security forces.  The court held that (1) all of the applicants were within the UK’s Art. 1 ECHR jurisdiction and (2) that the UK has not held an Art. 2-compliant investigation in five of the cases, all but that of Baha Mousa where there is an ongoing public inquiry.  The Court awarded damages and costs.
 
In 2012  in Othman (Abu Qatada) v. The United KingdomThe ECHR found that Abu Qatada’s “deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk of the admission at the applicant’s retrial of evidence obtained by torture of third persons.” 
 
In 2013 in Abdi v. The United Kingdom, Judgment The ECHR found that Mustafa Abdi was unlawfully detained for two and a half years while waiting deportation.  He had been jailed for 8 years for rape and other offences, and held 2.5 years after serving his sentence because no “carrier” was willing to take him back to Somalia.  The ECHR specifically found that “the complaint concerning Article 5 § 1 [is] admissible and the remainder of the application [is] inadmissible;” … “there has been a violation of Article 5 § 1 of the Convention in relation to the applicant’s detention from 3 December 2004 until his release in mid-April 2007” … and “ it is not necessary to examine the complaint under Article 5 § 1 of the Convention regarding the length of the applicant’s detention during the said period.”  The ECHR awarded damages and costs. 
 
Also in 2013 in Al-Jedda v. The United Kingdom, Judgment, App. No. 27021/08, 7 July 2013 The ECHR held that (1) Mr. Al-Jedda’s detention was attributable to and within the jurisdiction of the UK, and (2) as the UK had no obligation under a UN Security Council resolution to detain preventively and without judicial review, Art. 103 of the UN Charter was not at play, and that therefore Mr. Al-Jedda was detained unlawfully under Art. 5(1) ECHR.  The Court awarded damages and costs. 
 
Of very recent Supreme Court cases of Chester and McHeoch – heard together – bring us up to date.  They concerned the rights of serving prisoners to vote.  There had been a UK blanket ban, something seemingly popular with the electorate.  There had already been at the ECtHR decision  - one involving the UK one Spain – that determined that a blanket prohibition was by nature indiscriminate and incompatible with Article 3 o Protocol No 1 of the European Convention on Human Rights that has been incorporated into UK law by the Human Rights Act and into European Community law.  Appeals by both prisoners to the Supreme Court were both rejected.  It did, however, apply the principles of the case (Hurst No 2)  and Scoppola regarding blanket bans but was able to reject both appeals on grounds that there was already  in place a declaration by the UK courts of incompatibility.
 
Does any of these cases really excite you?  And I mean really?  When the breakfast and the Daily Mail have both left the table and you are back in the garden or on the way to work are you incensed?   Do you write to your MP.  Some do.  But overall with the reflection of a bit of time is any of them really that important If the decisions represent an attempt by courts and EU bodies to reach some understanding of where the law is?  Even if the result is wrong – or subsequently found to be wrong - is it better to have tried, to have reached a form of forced consensus and moved ahead than to have drawn our English stumps and run the risk of becoming the outsider, the nasty man of Europe?  It is ultimately your views that matter, not mine at least not more than mine as a voter with one vote in elections and access to the legislature should I have wanted to stand for office.
However we have the additional advantage of two speeches, one from Lord Justice Laws who should have been in the Supreme Court and one from Lord Sumption who is.
 
Their positions are not identical and senior judges may at some stage like to recognise that it is no bad thing if they speak with one voice in language the citizen can understand – after all it is the citizen’s law not the judges’.  To be fair both speeches are beautifully scripted and easy to follow.  I would recommend reading both.
 
Lord Justice Laws  referred to two of the common law’s virtues: its catholicity as he described the Common Law’s ability to draw on law from any source and its power of restraint. The restraint of which he spoke was, he thought, threatened by the phenomenon of human rights law. The law’s quality of catholicity was threatened by perceived effects both of EU law and of the human rights law coming out of the European Court of Human Rights at Strasbourg.
 
The threat to the catholicity of the common law starts, he argued, from the fact that principles with a foreign ancestry, like any other principle of the common law, can only truly take their place and play their part if the law’s users, its practitioners and its commentators, believe in their benign effects.  
 
He went on to say that the political controversies and resentments concerning Europe may undermine the confidence which thinking people ought to have in the common law’s catholicity.  
 
He challenged the traditional doctrine of sovereignty saying that although it is not modified by the incorporation of external (EU) texts there is a category of statutes which may be called “constitutional” statutes such as the European Communities Act. Other examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the Human Rights Act, the Scotland Act 1998 and the Government of Wales Act 1998:
To the extent that the law is or seems to be driven by decisions of the Strasbourg court - just as with the European Union - resulting fears and resentments may undermine the confidence which thinking people ought to have in the common law’s catholicity.  But if we can make the law of human rights truly our own, he reckoned, perceived and rightly perceived as a construct of English law, we can protect the common law’s catholicity, and at the same time keep control the proper place of human rights, and so protect the common law’s restraint.
 
He challenged a dictum of the late Lord Bingham that so far as s.2(1) of the Human Rights Act is concerned “A court or tribunal determining a question which has arisen in connection with a  Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, …..  whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”
 With deference to the House of Lords, and with great respect for Lord Bingham, he thought that this approach represented an important wrong turning in our law.
 
Lord Sumption had referred in another case to the United Kingdom’s obligations under Article 46.1 of the Convention providing that: “The High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are parties.” So the United Kingdom must fulfil rulings of the Strasbourg court in cases brought against it.   But Article 46, moreover, of course says nothing whatever about how a signatory State is to treat Strasbourg cases to which it has not been a party.  Article 46.1 means only that once a case involving the United Kingdom has been decided in Strasbourg, the United Kingdom must abide by the result. That is a very far distance, he said, from the notion that, for example, Strasbourg judgments on Article 8, which on the facts may have nothing whatever to do with the United Kingdom, are authoritative for the purpose of the Human Rights Act. The constructive dialogue that should happen when incompatibility arises, if pursued vigorously, may enrich not only the development of Convention law, but will also allow our own constitutional law to flourish. 
 
In some cases arising from incompatibility, the debate is not only about the weight to be accorded to the Convention right on the merits. It is about the respective roles of government and judiciary. He considered that in this jurisdiction, despite the brickbats daily thrown at politicians, there remains a deep sense that matters of State policy are in essence the responsibility of the elected arms of government. 
 
Lord Sumption  took a slightly different view.  He explained that the Convention ‘reflected the concern of European nations to ensure that the extremes and despotism and persecution characteristic of the German Third Reich were never repeated, as well as a growing fear of the new totalitarianism then coming into being in the Soviet-dominated communist. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty. A good example is the steady expansion of the scope of Article 8. The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence. This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has been extended.
 
In reality, therefore, the Human Rights Act involves the transfer of part of an essentially legislative power to another body. The suggestion that this is democratic, he said, simply confuses popular sovereignty with democracy. Of course, a sovereign Parliament may transfer part of its legislative power to other bodies which are not answerable even indirectly to the people of the United Kingdom. But it would be odd to deny that this undermines the democratic process, simply because Parliament has done it.
 
Citizens expect their politicians to be not just useful but attractive, he suggested. They demand principle, transparency and consistency from them. And when they do not get these things, they are inclined to turn to courts of law instead. The attraction of judge-made law is that it appears to have many of the virtues which the political process inevitably lacks. 
Lord Sumption thought that there is, however, a price to be paid for these virtues. The judicial resolution of major policy issues undermines our ability to live together in harmony by depriving us of a method of mediating compromises among ourselves. Politics is a method of mediating compromises in which we can all participate, albeit indirectly, and Lord Sumption considered it to be one which we are more likely to recognise as legitimate.
 
 I can hardly quote the views of others without giving my own.  As suggested above I reckon the debate incompatibility arguments generate may be worth more than all forms of cost to the country of being subject to European influence on our law.
 
I can understand how Professor Bogdanor considers human rights law may be more important for politically weak, unpopular minorities - but the system  has to have a single method of operation.
 
I can understand Lord Sumption’s concern about the Convention being treated as a “living instrument” in the way that the Strasbourg court expresses it so as to allow it to interprets the Convention in the light of the evolving social conceptions common to the democracies of Europe, so as to keep it up to date with conclusion in law that may never have been contemplated when the Convention was first drafted.  His overall conclusion  that there may be a risk for society’s that allow too much power to pass to the law making courts is one I hope to be wrong.
 
Lord Justice Laws’ conclusion  that, applied through the mechanism of the common law, the Convention can be and should be a great force for good in this jurisdiction, ‘putting more teeth in the common law’s mouth’ and that the constitutional balance between law and government is harboured and matured by the common law’s process of continuous self-correction, which allows the refinement of principle over time, and the orderly development of State power are ones I hope to be correct.  His hope that if we keep faith with our law, we ‘shall enjoy a noble inheritance, and may anticipate a tranquil future’ is one we would probably all endorse.
 
To be engaged on a journey with our nearest geographical neighbours in which we seek to identify common principle for the good of all is unlikely to be a bad thing.  Along the way we may have to live with compromises, for a time, maybe for a long time.  But these are not great compromises.  They will never be the sort of compromise that the countries in contemplation when the Convention was first created – Nazi German or Soviet Russia – might have extracted.  We are not going to be obliged to make concessions to racism or to arbitrary detention.  The process of dialogue which we are required to engage in when we find ourselves at odds with Europe may be no bad thing in requiring us to look beyond our own culture for ideas and solutions.  We have seen how, in a very different setting, dialogue within a country that has a settled constitution has been a necessary and effective step on the way to the very substantial positive reforms that America has achieved and can, I believe, reasonably look forward to similar long term benefits being derived from constructive engagement with Europe in the development of European Human Rights law.
 
 
 
© Professor Sir Geoffrey Nice QC 2013
 
 
 
T[1]             The lecture on Burma and North Korea on 2 April 2014 should be at almost precisely the time of publication of the UN’s Commission of Inquiry into Human Rights violations in North Korea; the lecture on Head of State Immunity on 7 May 2014 is likely to follow hard on the start of the trial of serving President Kenyatta of Kenya at the ICC in the Hague unless he wins an argument somewhere about Head of State immunity, or the trial is otherwise delayed / adjourned.

[1]Following figures have not been verified: Ratio of lawyer to working population US, 2010:  1:179. Canada: 2007: 1:240. UK: 1:204 Australia: 1 in 193. Germany: 1 in 198  China: one lawyer per 4700 working population. South Korea: one lawyer for every 2,611 workers in South Korea.. Japan: one lawyer for every 2823 working population. In the USA The ratio of lawyers/jobs was flat for most of the 20th century and then rose dramatically after 1970, roughly doubling between 1970 and 2000

[1]“every person who has mastered a profession is a skeptic concerning it” Mrs Warren’s Profession, GB Shaw

 

[1]By way of example: ‘The miners ought not to have allowed themselves to be led by the nose in this shocking manner…There is the greatest difference between an industrial dispute, however lamentable, and a general strike. An industrial dispute about wages, hours, conditions etc., in a particular industry ought to be settled in a spirit of compromise, with give and take on both sides…But a general strike is a challenge to the State, to the Constitution and to the nation. Here is no room for compromise.  Winston Churchill writing for the West Essex Constitutionalist, December 1926 

 

[1]The Human Rights Act and the Slow  Transformation of the UK’s ‘Political  Constitution’ Colm O’cinneide, Reader in Law, Fellow of the Institute for Human Rights, UCL institute for human rights working paper series working paper no.: 01 issn no.: issn 2049-2138

 

[1]             McCann and Others v. The United Kingdom, Judgment, no. 18984/91, 27 September 1995

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57943#{"itemid":["001-57943"]}

[1]             Chahal v. The United Kingdom, Judgment, App. no. 22414/93, 15 November 1996

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58004#{"itemid":["001-58004"]}

[1]             Oliver Brown, et al. v. Board of Education of Topeka, et al. 347 U.S. 483 74 S. Ct. 686; 98 L. Ed. 873; 1954 U.S. LEXIS 2094; 53 Ohio Op. 326; 38 A.L.R.2d 1180

[1]             Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County410 U.S. 113;93 S. Ct. 705; 35 L. Ed. 2d 147;1973 U.S. LEXIS 159

 

[1]           [2004] UKHL 56 on appeal from: [2002] EWCA Civ 1502

[1]           Blackstock v. The United Kingdom, Judgment, App. no. 59512/00, 21 June 2005

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-69418#{"itemid":["001-69418"]}

[1]           Massey v. The United Kingdom, Judgment, App. No. 14399/02, 16 November 2005

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-67470#{"itemid":["001-67470"]}

 

[1]           Blake v. The United Kingdom, Judgment, App. no. 68890/01, 26 September 2006 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-76995#{"itemid":["001-76995"]}

[1]           Othman (Abu Qatada) v. The United Kingdom, Judgment, App. No. 8139/09, 17 July 2012

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108629#{"itemid":["001-108629"]}

[1]           Abdi v. The United Kingdom, Judgment, App. no. 27770/08, 9 April 2013

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-118335#{"itemid":["001-118335"]}

[1]           Al-Jedda v. The United Kingdom, Judgment, App. No. 27021/08, 7 July 2013

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"dmdocnumber":["887954"],"itemid":["001-105612"]}

[1]           http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/laws-lj-speech-hamlyn-lecture-2013.pdf

[1]           In an earlier lecture in the series Lord Justice Laws had quoted Sir Gerard Brennan, Chief Justice of Australia from 1995 to 1998, who said in a lecture at University College Dublin in 1997 that the common law courts have “no power but the power of judgment, [and] no power base but public confidence”.

[1]           Throughout the lecture Lord Justice quotes from Lord Denning describing the encroachment of law as incoming tides which it is feared cannot be held back.

[1]           He expanded by explaining that ‘this is an obligation which sounds in public international law; it forms no part whatever of our domestic law. As Lord Sumption pointed out, Article 46.1 has not been incorporated by the Human Rights Act. Unlike for example France and Germany, we do not have a monist constitution by which a treaty, once entered into, automatically becomes part of the State’s own law. Under our dualist constitution, international treaties are entered into by the executive government; and the executive is not generally a source of law in England.

[1]           http://www.supremecourt.gov.uk/docs/speech-131120.pdf

[1]           Now, I would be the first to acknowledge that some degree of judicial lawmaking is unavoidable, especially in an uncodified common law system. It is a question of degree how far this can go consistently with the separation of powers. Even in a case where the limits have been exceeded, I am not going to suggest that the fabric of society will break down because judges, whether sitting in London, Strasbourg, Washington or anywhere else, make law for which there is no democratic mandate. The process by which democracies decline is more subtle than that. They are rarely destroyed by a sudden external shock or unpopular decisions. The process is usually more mundane and insidious. What happens is that they are slowly drained of what makes them democratic, by a gradual process of internal decay and mounting indifference, until one suddenly notices that they have become something different, like the republican constitutions of Athens or Rome or the Italian city-states of the Renaissance.

[1]           ‘The Strasbourg case law is not part of the law of England; the Human Rights Convention is. The Convention can be and should be a great force for good in this jurisdiction; as I said in Lecture II, it puts more teeth in the common law’s mouth. If we develop it according to the methods and principles of the common law, it will enrich us. Any threat to the common law’s catholicity will be dissipated. As for the common law’s restraint, we are entitled to think that human rights are like the human heart: the bigger they get, the weaker they get. In these lectures I have been concerned with the constitutional balance between law and government. It is harboured and matured by the common law’s process of continuous self‐correction, which allows the refinement of principle over time, and therefore the orderly development of State power. As I said in Lecture I, the challenge in the end is simply expressed: it is to keep the constitutional balance, and thus to give the principles of the common law – reason, fairness and the presumption of liberty – as big a space as possible. It is no easy challenge. Because our law is constantly renewed by the force of fresh examples, because it reflects and moderates the temper of the people as age succeeds age, because it builds on the experience of ordinary struggles, its principles will always be buffeted by events. In their different ways the confrontation of extremism, and the absorption of law from Europe (the subject of these last two lectures), press upon the constitutional balance. But if we keep faith with it, we shall enjoy a noble inheritance, and may anticipate a tranquil future’.