A ‘starry’ encounter, human rights and ‘ignorant’ politicians

As the autumn months roll in, and invites to events in the legal profession’s calendar fly at us thick and fast, it has unsurprisingly been a busy couple of weeks for the SJ team. You’ll therefore have to forgive me for the length of the somewhat mammoth blog post this week.

As managing editor Laura Clenshaw alluded to in her blog, I recently met Dominic Grieve QC at the Legal Support Trust’s 10th anniversary party. This is the second time our paths have crossed. The first was during the LLST Legal Walk in May, in which I quite literally ran into him along with our editor at large, Kevin Poulter.

Back then Grieve was still the government’s attorney general. It is incredible how much can change in just a few short months. Now, as a back bench MP, Grieve is much more able to speak his mind as he demonstrated by speaking out against the government’s recent proposals to scrap the Human Rights Act.

We spent some time discussing those comments, as well as the thorny issue of cuts to legal aid and the justice secretary’s attempts to limit judicial review. Unbeknownst to me, certain members of the SJ team (yes, I am looking at you HoCS and Helen Roche) had surreptitiously sprinkled my person with gold and silver plastic stars because I was not “dazzling enough” in my dinner suit. I now have even greater respect for the former attorney general for not laughing his socks off at someone who looked like a poor excuse for Edward Cullen.

How different things could have been, not just for Grieve, but for the legal profession as a whole, if he had been given the role of Lord Chancellor. In January 2009, Grieve became the Shadow Secretary of State for Justice, so in theory was best placed to take the ‘sacred’ office of Lord Chancellor when the coalition government came to power.

Instead Ken Clarke was appointed. Clarke is indeed thought of in high regard by the legal profession, but the controversy he faced over his reported views on rape and criticism for his Justice and Security Bill, would not have helped stall the cabinet reshuffle broom when it appeared for him in 2012. This led us to the present incumbent, Chris Grayling, who is neither popular with the legal profession nor known for his knowledge of the law. Not that that matters much to Grayling who believes you “don’t need a health secretary who is a doctor”.

Speaking at a recent event, Dinah Rose QC commented: “It used to be that the Lord Chancellor, either a senior lawyer or judge, sat in the cabinet to provide an authoritative view on proposed legislation. However, the benefits of that system have been lost. The Lord Chancellor is no longer legally qualified; he is an ambitious career politician with little understanding and less love for our legal system. In that situation it is important that the government has access to authoritative and independent legal advice.”

Human rights?

Rose was speaking at an event organised by the forum for social and economic thinking, Politeia. The event was attended by many high profile politicians, such as David Davis MP, as well public and human rights law practitioners, journalists and law students all eager to hear Rose answer the question: ‘What’s the Point of the Human Rights Act?’“It has to be acknowledged that for a variety of reasons the Human Rights Act, though in substance a relative success has been, in public relations terms, pretty much a disaster for our civil liberties,” said Rose. “Rights and the enforcement of rights, which were once seen as distinctively British, are now commonly regarded as a foreign imposition beneficial only to foreigners and criminals.”

Rose extolled the virtues of the English common law and how it has protected the fundamental rights of the public since Lord Mansfield’s judgment in Somerset v Stewart, which led, in part, to the abolition of the slave trade. Rose explained how Somerset was one of the earliest examples of the principle of ‘legality’, “the notion that fundamental rights have a force at common law. Such rights cannot be interfered with without clear, positive law authorising the interference,” she said.

She spoke of Sir William Blackstone’s seminal commentaries and the importance of them in the development of the common law, both in this country and across the Atlantic. “The concept of fundamental common law rights with a special status is clearly spelt out in Blackstone, with chapter one entitled, ‘The Absolute Rights of Individuals’,” Rose commented.

On the right of access to justice, Rose alluded to clause 40 of Magna Carta, ‘To no one will we sell, to no one deny or delay right or justice’. She said: “Effective access to justice, in other words, the central, indeed only still excellent provision of Magna Carta, is a right which underlies and guarantees the protection of all other fundamental rights.”

Rose explained that the common law has been particularly powerful in protecting the rights to free speech, liberty, open justice and access to courts and, in fact, offers protection that goes significantly further than that guaranteed by the convention, such as the provisions of article 6.

So why do we need the Human Rights Act (HRA), and the European Convention on Human Rights, if our own common law is protection enough for a Briton’s fundamental rights and access to justice?

As Rose so eloquently explained, there is always the chance that there may be “a gap in the substantive rights protected under our own common law which could only be filled by reference to the convention”. Furthermore, as Rose points out, the HRA and the convention acts as a constitutional framework for the enforcement of rights, “which would otherwise be lacking to ensure their effective protection”.

She continued: “Whether we have the Human Rights Act, or a British Bill of Rights, or simply rely on the common law to develop, the content of the rights protected are likely to be broadly the same. The true significance of the Human Rights Act and the convention then is that they provide a constitutional mechanism for the enforcement of fundamental rights.”

There is clearly a delicate constitutional balance between the government, parliament and the courts in the protection of fundamental rights. Rose argued that parliament has not shown the defence that it should to common law rights, and that the common law has not enjoyed the same degree of protection from state interference in the courts as the convention rights enjoy under the HRA.

“Parliament and the executive must appreciate and seek to maintain that delicate balance,” said Rose. “They must also give proper respect to the role and functions of the courts and to the rule of law.”

She observed that since the turn of the century, the respect of individual judgments made by the courts and respect for the role and functions of the court has been “eroded” and “abused” by politicians who, when unhappy with a judgment, have seen fit to attack it or the judge in parliament or by way of a press release, realising “they could win applause by doing so by certain sections of the media“.

“There is the question of a proper understanding and respect for and function of the courts. The sort of reaction by government to adverse judgments, lapped up enthusiastically by the press is one of the reasons there is a lack of public regard and respect for the Human Rights Act,” she alleged.

“I have a genuine concern about the level of understanding of the constitutional and legal system in parliament and the effects of the relative ignorance that now prevails on the delicate balance that ought to subsist between parliament, the executive and the courts. Few MPs have a legal education and not surprisingly they know very little about the history or operation of the common law. Might it not be an idea to provide new MPs with a short but authoritative course on the constitution and the operation of the legal system?”

Rose concluded her speech by saying: “A Conservative government should be in the business of conserving valuable traditions; our fundamental rights and freedoms and the operation of our common law system are foremost amongst those values. If the government does not understand or respect the system, the risks of doing irreparable damage will be unacceptably high.”

Undermining rights

This was not the only Politeia lecture I have visited recently where a prominent lawyer has attacked the government policy. Speaking on the government’s closure of the magistrates’ courts, cut from 330 courts in 2009 to 240 in 2014, Stanley Brodie QC commented: “Magna Carta is not an ancient relic to be ignored. It is a fundamental constitutional document, which has as much relevance today as it did 800 years ago. But whilst there will be a great deal of rhetoric extolling its virtues by statesmen and politicians, on the ground the reality is completely different because we now have civil servants in the Ministry of Justice pursuing policies which positively undermine the rights and liberties which are provided through Magna Carta, and therefore the contrast between extolling it and undermining it becomes quite stunning.”

How different things might have been.

This blog was first published in the Solicitors Journal on 29 October 2014 and is reproduced with kind permission.