Legal Systems: Rule of Law
(10 years, 5 months ago)
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Lord Woolf
That this House takes note of the contribution made by the legal systems of this country to the international standing of the United Kingdom and the observance of the rule of law in this country and abroad.
Lord Woolf (CB)
My Lords, I disclose my interests as in the register.
The title of the debate refers to legal systems. I emphasise that at the outset because, having fulfilled the role that I have, I would not want it to be thought that I was not conscious of the importance of the other legal systems within the United Kingdom.
I say at the outset that I am most grateful to my fellow Cross-Benchers who voted to select this topic for debate. I am even more grateful to each noble Lord and to the Minister and shadow Minister who have agreed to take part. They are all extremely well qualified to contribute and collectively they have an extraordinary record of service to the system of justice in this country. Their involvement in the debate is testimony to its importance.
It is uncontroversial that our legal systems have benefited many countries, as well as our own. They have made a unique contribution to improving the global observance of the rule of law. Other countries look to this country for guidance as to what needs to happen if they are to bring their country up to the standards required by the rule of law. With this leadership comes responsibility. However, I now have a concern that there is a real danger that we will not continue to set the example that we have in the past. If we do not, it will be extremely damaging to this county, as well as to other countries which could benefit from our experience.
Today, there is considerable debate about what constitutes British values. The previous debate has a very real relationship with this debate, as the noble Lord, Lord Alton, said. Whatever the right answer is to the question “What are British values?”, I am confident that hitherto those values would generally be regarded as including justice and fairness, which observing the rule of law requires. After all, this country fought the last world war to protect those values.
Since the end of the war, the importance of those values has increased immeasurably. Our legal system, based on observing the rule of law, is a major contributor to this country’s economic health. Internally, it is part of the essential infrastructure required for a healthy economy. Externally, it is now an important constituent of our global exports. The Bar, the Law Society and the Public Law Project prepared briefing papers for this debate. I refer noble Lords to each of those papers, as they provide very useful information on the background to this debate. Even a glance at them makes clear the importance of the contribution made by legal services to this country. We should be very proud of what has been achieved by our lawyers and legal system.
Why, then, my concerns? To understand them, you have to understand how our legal system developed. It is necessary to remember that our legal system, unlike those on the continent, was not the creation of a single code; nor is our legal system, like almost all other developed systems, protected by an entrenched written constitution which sets out explicitly the functions of the different entities of the state. Instead, there was the creation of the common law, which today is subservient to the will of a largely sovereign Parliament. It is also dependent on the Executive for its resources. This brings with it dangers for its independence, as was pointed out by my noble and learned friend Lord Browne-Wilkinson when he was vice-chancellor. He warned that as the Executive paid the piper, they would inevitably be tempted to call the tune. Fortunately, at least in relation to the role of the judiciary, the Executive have usually exercised commendable restraint. Despite its vulnerability, our system, without an entrenched and dependent common law, is not without virtues. It combines a considerable flexibility with a critical core of common-law values. This enabled the common law, during the expansion of our empire, to be absorbed into and to take root in more than a third of the countries around the globe, including the USA.
Common-law values are important in any legal system, whatever its source. This is because they are a basic requirement of any developed justice system, and closely allied to the values to be found in conventions such as those on human rights. They are also essential ingredients of any effective democracy. In the case of common-law countries, values have a long history, usually traced back to Magna Carta by members of the Commonwealth and the USA. I understand that another contributor may make reference to Magna Carta in that context, particularly as next year is its 800th anniversary. Although it has an ancient pedigree, the common law is still very much alive and kicking. A visit to any Commonwealth law conference will confirm that. Perhaps its values are incapable of being rigidly defined, though fortunately, before his untimely death, Lord Bingham of Cornhill was able to bring considerable clarity to the subject and his work is being continued by the Bingham Institute, under its director Sir Jeffrey Jowell. It has also received detailed attention in the World Justice Project, which has just published this year’s Rule of Law Index. This sets out four universal principles of the rule of law. The project also indexes the extent to which the rule of law is observed in 99 different jurisdictions. No country gets a perfect mark but I am rather disappointed that this country only manages to be the 14th most observant of those countries that form the 99.
Undoubtedly, there is still a very high regard globally for our legal system. This results in multiple benefits to this country. Our courts—especially the commercial court—are used by litigants from around the globe. Our lawyers and judges are universally admired and branches of our international law firms are prospering. Their integrity and ability is not open to question. Because of our judiciary’s reputation both before and after they retire, our judges are in great demand to assist other jurisdictions, which they do willingly. I hope that some of my judicial colleagues who are down to speak will inform the debate with their experience. I will not speak to mine, except to say that I cannot resist mentioning in the presence of the noble and learned Lord, Lord Phillips of Worth Matravers, that we were once called upon by President Chirac in Paris to give him advice, which we happily did. I have also sat in overseas courts.
While the position may look comfortable, at present we cannot assume that in the future it will take care of itself. It needs appropriate support and that support has not always been forthcoming as rapidly as it should. Instead, over the past decade, there have been a series of events that collectively suggest a lack of appreciation in government of the importance of ensuring that our legal system remains fit for purpose. This is a new era in which other jurisdictions wish to compete with us for the benefits that our legal system has already earned for us.
I referred to disturbing events. Let me mention what I have in mind. I have already indicated that we have no entrenched constitution. It is essential, therefore, that our constitutional arrangements include checks and balances to protect our rights and freedoms. Here, the historic office of the Lord Chancellor played an important role. His responsibilities included speaking up in Cabinet for the judiciary, of which he was a member, and for the legal system generally. The former Labour Administration attempted to change one aspect, also involving judicial review. It was vigorously opposed by the legal profession and the judiciary, and I am glad to say that it was withdrawn.
The former Labour Administration also attempted to change our constitution by altering overnight the status of the Lord Chancellor. As a result we now have a situation where there is a Minister in the Commons who combines the roles of Lord Chancellor and Minister of Justice. He is not a lawyer and he has different and wider responsibilities than those of his predecessors. Inevitably this affects his relationship with the judiciary, the profession and our legal system. The Constitutional Reform Act 2005 says he should “be qualified by experience” but so far I am not sure of the precise form that that experience took. This is no doubt a handicap for him, and I commend him for establishing excellent personal relations with the senior judiciary. I hope that he will forgive me, however, if I say that it would be natural for there to be suspicions. Unlike the old-style Lord Chancellor, he sees his current role as being only one more step in what will no doubt be a glittering political career. This is not what the profession and the judiciary expect from a holder of this still high office. I am sure that he recognises that at times the impression he could give is of a politician in a great hurry, which will not make it easier for him to obtain agreement that would facilitate the changes he is anxious to make.
Our lack of an entrenched constitution supported by a constitutional court means that we require an effective legal mechanism for ensuring that public bodies do not exceed or otherwise abuse their powers. This need has become much greater as society has become more complex. The judges responded by developing a streamlined procedure of judicial review which gives judges wide discretion to hold the balance between the Executive and the citizen. As the citizen requires judicial review to protect his position, it is essential that he has a right of access to the courts to achieve this. The procedure is one where the involvement of lawyers is particularly important but the availability of legal aid has been drastically cut, and that interferes with the ability of some litigants to appear before the court. What is more, the Lord Chancellor is now proposing in legislation to interfere with areas of judicial discretion which were working perfectly satisfactorily and were so regarded by everyone concerned.
I know that the Minister will pray in aid the need for austerity. But even if savings could be achieved by what is proposed, which is highly doubtful, they would be modest. Part 4 of the Criminal Justice and Courts Bill discloses a failure to attach sufficient significance to the importance of ensuring that justice is done in an area playing a vital role in achieving the balance to which I have been referring.
Judicial review may at times be inconvenient to the Government but it achieves better administration, which benefits the Government. It is their task to accept that it is a critical part of our society. The changes are being made contrary to the wishes of the senior judiciary. They show signs of being ill considered and rushed. While reforms to judicial review are perfectly proper this is not the way they should be made.
I turn to the area of criminal justice, where I fear that the unintended consequences resulting from government action could be grave indeed. The quality of our judges is dependent on the quality of the legal profession from which they are drawn. As a result of the changes being made in funding, it would be difficult today for any responsible person to advise a youngster coming into the profession to take up a criminal practice. It is essential that standards do not fall, because if they do the effect will be serious. Moreover, the position is not confined to newcomers. We also have problems with the heaviest cases, which are well known, so I will just draw attention to what was said by Lord Justice Levinson when giving a wise judgment.
These are some of the concerns, and I look forward to the other contributions to the debate.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I thank the noble and learned Lord, Lord Woolf, for giving us the chance to debate this important topic. As he knows, and as my noble friend on the Front Bench knows, I am not a lawyer, so I would like to make three remarks from a lay man’s point of view. They are a great deal less technical than the speech of the noble and learned Lord, and I hope he will forgive me for that.
The first point concerns the UK legal system and Britain’s world reputation. Like the noble Lord, Lord Ramsbotham, I was a member of the committee chaired by my noble friend Lord Howell, the Select Committee on Britain’s soft power. Our report was published in March and the Government, as the noble Baroness, Lady Warsi, reminded us a few minutes ago, have given their response. We have yet to debate the report and, in Shakespeare’s words, I do not want to run before my horse to market, but perhaps it is worth quoting two sentences from paragraph 175:
“The UK is also a world leader in the legal profession. According to the Humanitarian Intervention Centre, the UK’s ‘highly sophisticated and developed legal system’ is respected around the world ... In the Centre’s view, this legal prowess ‘affords the UK a high degree of legitimacy and credibility in the international arena which in turn gives its diplomacy great weight”,
and efficacy. That is my first point.
My second point is of a more personal nature. During their school or university career, many noble Lords may have had an occasion, be it a lecture, a class, a lesson or a tutorial, where something was said that transformed the way they thought. I share one such example with noble Lords today. After completing my undergraduate degree here in England, I went to live in America for a number of years. While I was there I took an MBA at the Wharton School of Finance and Commerce, as it was then known. The school used to arrange for eminent people from around the world outside of business to come and talk to the MBA students. One afternoon we had a talk from Peter Bauer. He was born in Budapest in 1915 and came to England in the 1930s where he lived for the rest of his life, later becoming a Member of your Lordships’ House as Baron Bauer, of Market Ward in the City of Cambridge. On that afternoon 45 years ago in Philadelphia, he explained his vision for helping the less fortunate of the world. At the time development was largely seen as a government-to-government matter, but Bauer argued that that was not effective. He saw effective development as being conducted at a much lower level, through trade rather than aid, and where aid takes place, at the people-to-people level. His legacy is the GATT rounds that we have seen and, indeed, the growth of the NGO movement.
Bauer went on to argue that afternoon that people-to-people relations are not conducted in a vacuum; they need a framework. Bauer’s framework, as he explained it to us, was respect for property rights and acceptance of the rule of law. He emphasised in particular the value of the English common-law system. Rather as the noble and learned Lord, Lord Woolf, did a moment ago, Bauer explained how flexible it was and how it could be adapted to changing circumstances. He saw it as the responsibility of the richer parts of the world to help establish a ladder up which the poorer parts of the world could slowly, and no doubt painfully, clamber. He saw the rule of law as being an essential rung of that ladder. I accepted that argument then, and today, faced as we are with continuing great impoverishment, I see it as an important reason for supporting the proposal of the noble and learned Lord.
My third and final point is perhaps rather more discordant. For my part, I do not see the actual law and the rule of law as being entirely separate. The rule of law is a vital principle, but if under its cloak laws are enforced which are ossified or outdated, then respect for the rule of law itself will be undermined. UK judges and judges around the world have great power to hold us all to account, and that is quite right, but with that great power, as the noble and learned Lord pointed out in his speech, comes great responsibility—the responsibility of ensuring that judgments and approaches reflect the changing world. That is not to say that judges should reflect transitory, ephemeral public opinion; that way lies rule by the mob. However, there is a need to be in touch and in tune with underlying social and economic changes and attitudes. As I say, that is perhaps a discordant point, so in conclusion I return to Peter Bauer. It has been written of him that:
“Bauer’s legacy is a better understanding of the forces that shape economic development, especially the institutions of private property, stable money, free trade, and limited government under a rule of law”.
I can think of no better reason for supporting the noble and learned Lord this afternoon.
Lord Morris of Aberavon (Lab)
My Lords, we are particularly grateful to the noble and learned Lord, Lord Woolf, for securing this debate. There could be no better example of the contribution made by the judiciary than the ever watchful eye of the noble and learned Lord; we have heard this afternoon, of course, his own outstanding contribution. Moreover, I have had the privilege of appearing before him. For the removal of doubt, I make it clear that my appearance was as counsel and not in the dock. Before I leave the issue of the integrity of our judiciary, I compliment another outstanding figure of integrity, the noble and learned Baroness, Lady Butler-Sloss. I compliment the Government on choosing her to fulfil a difficult role.
I will deal with only one aspect of the observance of the rule of law, and that is in international affairs and the difficulties that I experienced. It is the interpretation and implementation of the rule of law that causes problems. Domestic law in general is more certain than international law, where judicial precedents can be scarce. As the Attorney-General, it was my task to be the Government’s principal legal adviser. I was fortunate in being able to call on a galaxy of legal expertise to assist me. However, before I took office it never crossed my mind that the interpretation of international law would play such an important part and demand so much of my time and attention—from advising on resolutions of the UN Security Council and interpreting the Geneva conventions to drafting the rules of engagement for our troops. It seemed to be an endless conveyor belt.
However, it was the interpretation of the rule of law during the war in Kosovo that was my biggest problem. As Ministers, the military and civil servants, we are bound under domestic law and the Ministerial Code to obey international law, hence the military’s anxiety to get legal cover for its activities. With the growth of international courts, that is becoming more and more important. Our decision-makers, particularly but not only the military, could find themselves having to answer for their actions before an international court. My job was to give what assurances I could for the actions proposed by the Government. In Kosovo, the internationally assessed evidence was quite clear: an overwhelming humanitarian catastrophe was taking place in that country. Ethnic cleansing was being perpetrated on a scale with few parallels. What was the background? Article 2(4) of the United Nations charter prohibits the intentional use of force except for self-defence or with the authority of the Security Council. During my time, it was impossible to get the Security Council to allow the use of force by passing an appropriate resolution.
Was that the end of the matter? My Conservative predecessors had to consider whether force could be used on humanitarian grounds in Iraq 1 in order to set up no-fly zones to protect the Kurds and the Marsh Arabs. I distinguished Iraq 1 from Iraq 2, and they agreed that it could be used. The difference between Iraq 1 and Kosovo was that the United Kingdom acted passively in the former, whereas if bombing night after night was authorised in Kosovo we would be proactive, if not aggressive. We believed that there was no practical alternative to our proposed use of force and that it was the minimum necessary.
Our observance of what we deemed to be the rule of law was further manifested in that, night after night for 68 days, I personally had to agree each bombing target to ensure that we adhered to the Geneva conventions. I queried some of the applications to bomb, and I turned down the last application to bomb a great part of Belgrade. Many years later, I was present in Brussels when I heard the NATO supreme commander saying, “If the Brits thought it right, it must be right”.
My prognostications about the possibility of having to answer for our actions before an international court turned out to be true. I was summoned back from a conference in the Caribbean to lead for the United Kingdom in an action brought by Yugoslavia before the International Court of Justice at The Hague, in its attempt to stop the bombing. The United Kingdom was one of nine NATO defendant countries. The court found that it lacked prima facie jurisdiction to entertain Yugoslavia’s application. The main issue was deferred and never resolved. I was disappointed that the legality of our actions could not be determined, and some distinguished academic lawyers have since condemned and contested our actions.
I believe that international law has to evolve to meet the post-1945 conditions. I note that the present Attorney-General, in his advice to Parliament on the proposed military action in Syria last year, followed precisely and word for word the relevant observations set out in my own memoirs. In the part of his opinion that was published, there was no reference to the possibility of actions being challenged by a legally competent, interested country in an international court. I am sure that as a distinguished lawyer he made it quite clear that there was this possibility, and brought it to the attention of the Cabinet.
Finally, against the celebrations of Magna Carta, we can all be extremely proud of our own legal system and its contribution to the world.
Lord Lester of Herne Hill (LD)
My Lords, I too am grateful to my noble kinsman, the noble and learned Lord, Lord Woolf, for initiating the debate and for his very timely words of wisdom. I am particularly glad to be speaking in the presence of the noble and learned Lord, Lord Irvine of Lairg, who in my judgment was one of our great Lord Chancellors. I wish we could maintain that standard in that great office.
I was unable to take part in the Second Reading of the Criminal Justice and Courts Bill last week, but I read with admiration the contributions from the noble and learned Lords, Lord Woolf and Lord Brown, and the noble Lord, Lord Pannick, warning of the threats to the rule of law in Part 4. These threats are harmful to our legal system, to the UK’s international standing, and to the rule of law.
One of the main values of judicial review is in curbing abuses of power by the Government themselves. When Governments seek to limit judicial review, they are judges in their own cause. I hope that the Government will heed the argument that Part 4 of the Bill should be taken out altogether. The Joint Committee on Human Rights, on which I serve, found no evidence to support the Government’s proposals. Last Friday the Constitution Committee, on which I also serve, noted that lowering the threshold for judicial review risks unlawful administrative action going unremedied. The Committee asked the Government to heed the warnings from the senior judiciary, and I hope the Government will respond positively.
Everyone in this debate will agree that the British legal system has made a great contribution to the international standing of the United Kingdom and to the rule of law. Even though only four out of 47 countries in the Council of Europe are common law countries, we British may take justifiable pride in the drafting of the European Convention on Human Rights—mainly in Whitehall—and in having exported the convention rights to the constitutions of so many Commonwealth countries and dependent territories in Africa, Asia and the Caribbean. We may take pride in the way that British lawyers have influenced both European courts to have regard to our dynamic common law.
We may take pride too in the quality and integrity of British judges, who have served with such distinction on both European courts. These include Lord Mackenzie Stuart, Lord Slynn, Sir Konrad Schiemann, Sir Francis Jacobs and Eleanor Sharpston in Luxembourg, and Lord McNair, Sir Vincent Evans and Sir Nicolas Bratza in Strasbourg, to name only some of them.
One challenge is to encourage outstanding British judges and lawyers to apply to serve on each of these European courts. Thanks to the Human Rights Act and the willingness of our courts to interpret the convention rights wisely in the context of our own political and legal system, British judgments are especially influential in Strasbourg. As our judges have become more familiar with the jurisprudence they have opened a dialogue with the court where they consider that its reasoning is questionable. It is a partnership that works well, and it has encouraged our courts to develop the common law progressively to meet modern needs and values rather than treating law as full of ossified fossils, as was pointed out by the noble Lord, Lord Hodgson of Astley Abbotts.
Unfortunately, much of this is threatened by a narrow insular ideology, fuelled by right-wing sections of the media and Europhobic politicians. However, they are not all confined to the right wing of the Tory party. I must say that the failure of both Lord Chancellor Jack Straw and Lord Chancellor Chris Grayling—one a lawyer and the other not—to abide by the final judgment of the Strasbourg court in the prisoners’ right to vote cases is unprecedented, and in blatant breach of international law. It has tarnished our international standing and the rule of law in this country and abroad.
Threats by the Home Secretary and the Lord Chancellor to tear up the Human Rights Act and limit the powers of our courts and the European Court of Human Rights have hugely diminished our international standing and influence. Their rhetoric and their threats set a terrible example to the pseudo-democracies of Europe and beyond. I am not convinced that the British people will be enthusiastic when they come to realise that such constitutional vandalism will weaken and not strengthen the protection of British rights by British courts. There would be no redress if, for example, Parliament enacted a racist statute depriving British black or Muslim citizens of the right to vote.
It is 50 years since I argued the first British case in Strasbourg. I have witnessed the way in which British lawyers and jurists have brought the convention system to life. I have had the privilege of frequently meeting ambassadors, judges and European civil servants in Strasbourg. A decade ago, our international reputation was outstanding and our influence was significant. Five years ago, thanks to an outstanding ambassador, Eleanor Fuller, and Ministers, we successfully promoted much needed court reforms. Much still needs to be done, but UK influence has declined.
I know that my noble friend the Minister, Lord Faulks, will not agree. We were good colleagues on the Bill of Rights commission, but in the paper he wrote for the commission with Jonathan Fisher QC he disagreed with the Attorney-General, Dominic Grieve, who warned that the UK would become a pariah state if we left the convention, and found it difficult to see how the UK’s withdrawal from the convention would weaken the protection of fundamental rights. I hope that this debate and the Attorney-General may cause the Minister to think again.
Lord Judge (CB)
My Lords, I shall not disclose confidential conversations that I have had with the present Lord Chancellor nor say anything that might lead to the impression that I am disclosing private conversations, so I shall be reticent. Instead, in six minutes, I propose to cover 800 years of history, and I hope your Lordships will see why.
We are going to celebrate 1215. We know what we are celebrating, do we? We are celebrating no punishment without trial, but deeply significant and frequently overlooked is clause 61, which states that the King is subject to the law. In the olden days the King made his oath and he accounted to God for whether he had obeyed it. As a result of Magna Carta, he had to account on earth. If he failed to obey the law as declared in Magna Carta, the barons and everybody else were absolved from their oaths of fealty. In the 1350s, due process was introduced. 1610 is the first time that I have found the rule of law actually appearing—it appears in the protest in the other place. In the 1670s, independence of the jury was established, and in 1689, the independence of the judiciary.
In the mean time, another strand was going on. 1616 was the year of the founding of Virginia, in which the charter provides—it is called the Great Charter—that citizens who went to Virginia would have the same rights there as if they were still living in England. And then, most importantly, in the early 1700s, a clear decision was made: unless the country had an existing system of law, whenever there was a new colony, British law would apply. Hence, in 1765, when Parliament passed one of the more foolish Acts that it ever passed, the Stamp Act, the American colonies decided that they had had enough and we ended up with a rebellion.
May I just pause? No punishment without trial; independent process for decision-making; due process; equality before the law; the rule of law—they were exported from this country. There are many facets of imperialism which are open to question, but if you were to go now, as I have been in the past few years, to the annual Commonwealth Law Conference, there gathered together are men and women, lawyers and judges, from the entire Commonwealth. They will criticise us for this and comment adversely for that, but the heritage of the rule of law is something for which they hold us in affection. When we discuss, as we do, the problems faced by other Commonwealth countries, or one or two Commonwealth countries or around the world, they look to us not in any sense of profound respect because we are British, but because, in a sense, we inspired some of these ideas which now matter to them.
It is not entirely accidental that, when you look at your television screen—if you do—to see the trial of Oscar Pistorius, the judge trying the case may not be wearing a wig, but she is wearing the identical robes that a High Court judge out on circuit trying a murder case would be wearing in Birmingham, Manchester, Liverpool or Cardiff. It is a very important living tradition in which the United Kingdom still holds high authority. I must add that the Australians think that they are now the repository of the common law. The Australians—I say with great respect to them—never fail to make a claim when they can. They think that our grasp of the common law has been weakened, if I may say so to the noble Lord, Lord Lester, by the contaminating effect of the European convention.
There is one point that I want to make which perhaps will not be obvious, on judicial training. This is one example, and it is only one, of the value of our system. We have visits from all sorts of countries to the Royal Courts of Justice. I do not mean a social; I do not mean looking around the building and having lunch with the judges; I mean a serious visit to find out how we do this or how we do that. The Judicial College, as it now is, welcomes people from all over the world who come to learn about training. More importantly, they ask the college to send men and women judges to train the trainers in their countries, or to train their judges. The topic, largely, is judicial ethics and conduct. The countries include Russia, Rwanda, Nigeria and Pakistan. This is part and parcel of the respect in which our system is held. It is comforting that the European Commission conducted a huge investigation into judicial training throughout the countries of Europe and came to the conclusion—it is a nice thing to be able to say—that the largest number of best practices were to be found in the United Kingdom and our Judicial College.
Can we please not take any of this for granted? The quality of our judicial training depends on the judges who do it. The quality of our entire system depends on attracting high-quality men and women to the judicial Bench. If we take it for granted, we will lose it.
Lord Pannick (CB)
My Lords, it is a great pleasure to be part of a team of speakers with a forward line of three former Lords Chief Justice and two former Supreme Court justices that would win any legal World Cup.
This country is, as Shakespeare’s John of Gaunt says—it is still true—
“the envy of less happier lands”.
One of the reasons is our legal system, with its skilled and independent judges. There is a reason why Prime Ministers reach for a judge to investigate complex and sensitive public policy issues. They do so because judges and retired judges have a reputation for expertise, for integrity and for a determination to ensure that justice will be done—none more so than the noble and learned Baroness, Lady Butler-Sloss.
The legal system is important not just to the quality of our life but to our economic prosperity. The United Kingdom accounts for 7% of the global legal market. We are the leading global centre for the provision of international legal services. A paper issued by the Ministry for Justice in 2012 stated that the legal services sector in this country contributed £3.2 billion that year in exports, nearly three times more than a decade ago.
I declare an interest as a practising barrister. I make my modest contribution to that £3.2 billion in exports. In the past year, I have worn my wig and gown in the courts of Trinidad and Tobago, the British Virgin Islands, Bermuda and the Special Administrative Region of the People’s Republic of China—that is, Hong Kong. I have also travelled in the past 12 months to advise clients in Gibraltar, Zurich, Paris and Moscow. A number of my colleagues, either at the Bar or in solicitors’ firms, have more stamps in their passports.
We all find that, across all these geographical and cultural borders, the universal truth is that English law, English judges and English lawyers are regarded with enormous respect and admiration, none more so than the noble and learned Lord, Lord Woolf, who I thank for initiating this debate.
In applying the presumption of innocence, the principles of judicial review, the laws of contract and the protection of fundamental rights, the world still looks to London for guidance and legal services. Part of this is the historic residue of empire and the influence it commanded. In his epic account of the British Empire, Pax Britannica, James Morris tells how a hill tribe in India were involved in a dispute with their government about forest rights. Their elders were discovered sacrificing an animal to appease a distant but omnipotent deity:
“We know nothing of him”,
the elders announced,
“but that he is a good god, and that his name is the Judicial Committee of the Privy Council”.
Nowadays, the influence of London as a legal centre of excellence depends not on the chains of empire but on the quality of the product we produce. This influence and respect, hard won, are very easily lost.
I share the concerns that have already been expressed, particularly by the noble Lord, Lord Lester of Herne Hill, that the policies of the present Secretary of State for Justice, Chris Grayling, will damage the reputation, the influence and the financial success of our legal sector. If you undermine judicial review as an effective control on unlawful executive action, if you refuse to implement judgments of the European Court of Human Rights with which you disagree, if you reduce the scope of legal aid so that the most impoverished citizens of this country are denied effective access to the courts, and if you cut legal aid rates so that the brightest students—who are, of course, the judges and senior prosecutors of the future—cannot afford to work as barristers, and if in general you seek to administer our justice system on the cheapest basis possible, you will inevitably dilute its quality and pollute its reputation.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, congratulate the noble and learned Lord, Lord Woolf, on securing this debate and on introducing it so engagingly. Although I prefer to regard the Motion as a call to arms rather than a glorification of our legal history, I cannot resist the temptation to start by listing some, at least, of the proud legal maxims that resonate throughout our history. Freedom is the birthright of every Englishman; an Englishman’s home is his castle; let right be done, though the heavens may fall; be ye never so high, the law is above you; the presumption of innocence—the golden thread that runs throughout our law; trial by jury—the lamp that shows that freedom lives; and habeas corpus.
Habeas corpus is literally a direction to a jailer to bring up the body of his captive in court, together with any suggested explanation for his detention. In this context I must mention Somersett’s case, in 1771, and Lord Mansfield’s historic holding that slavery was,
“so odious, that nothing can be suffered to support it, but positive law”,
and that in England there was none. The words that end that historic judgment are:
“The black must be discharged”.
But I always thought that counsel had the best line:
“The air of England is too pure for a slave to breathe”.
However, we must be careful not to appear immodest, or to boast about our past contributions to the rule of law. Rather than emphasise the pride that, naturally, we all take in our strong tradition of fair play and justice down the centuries—a tradition that we owe to our forebears—should we not rather focus on the need for our own generation to safeguard that reputation? That, surely, is the imperative today.
On the subject of boasting, I am afraid that I cannot resist quoting a little ditty that has long pleased me. It is displayed on a plaque in the men’s locker room at Huntercombe golf club, and it reads thus:
“Golf and boasting do not mix.
If you win by 7 and 6,
Apologise for what you’ve done
And write it up as 2 and 1”.
I am sure the Minister knows that ditty; certainly he is far more likely than me ever to have been in the position of winning by seven and six.
Today we are concerned with the law, not with golf, so—with profound apologies for my appalling doggerel—might not a rough legal equivalent of that ditty for today go something like this:
“The law and boasting do not mix.
Better far, let’s try to fix
Attempts to erode judicial review
By voting down provisions new”?
That, of course, is a reference, as has already been made by other contributors, to Part 4 of the Criminal Justice and Courts Bill now before this House in Committee, which contains provisions that seem to many of us to constitute a real threat to the courts’ supervisory jurisdiction and the judges’ power to hold government decision-making to account, particularly as these provisions come in the wake of the severe cuts to legal aid that, as the noble and learned Lord, Lord Woolf, mentioned, were introduced earlier this year by secondary legislation. A few years ago I attended, as did others here, an international conference in Hong Kong under the title, Effective Judicial Review: a Cornerstone of Good Governance. So it is—and we diminish it at our peril.
The other central threat to this country’s international legal reputation that I, in common with the noble Lords, Lord Lester of Herne Hill and Lord Pannick, see is the readiness of too many nowadays to cavil at the constraints put on us by our being party to the European Convention on Human Rights—to the point, indeed, of dishonouring our obligation under Article 46 of that convention to comply with Strasbourg judgments in United Kingdom cases.
As has already been mentioned, the Government’s stance on prisoner voting is a classic illustration of that. The Joint Committee’s report last December is a model report, addressing the whole question of our relationship with Strasbourg, and it demands close attention and early action. I do not have time to recite some of the powerful conclusions of that committee, but it points out that one cannot cherry pick the obligations under the convention, as that would only give succour to states of the Council of Europe that have a poor record on protecting human rights, and which might draw on such an action as setting a precedent that they may wish to follow.
I invite the Minister, in his reply, to assure the House that the Government have no thought of withdrawing from the convention. Indeed, I hope that he will be able to assure us that the court’s judgment in Hirst is finally to be honoured, so that some prisoners, at least, will have the vote by next May. Assuredly we have a proud legal history. Let us ensure that we maintain it for the future.
Lord Marks of Henley-on-Thames (LD)
My Lords, I, too, refer to my interests in the register and echo other noble Lords in congratulating the noble and learned Lord, Lord Woolf, on securing this debate and on the eloquent and erudite way in which he opened it. We all know how much the continued high standing of the British legal system owes to his personal contribution.
I will not concentrate on our pre-eminence in the field of commercial law—the noble Lord, Lord Pannick, and others have made that case well. I will add only a mention of arbitration and ADR. The development of a body of arbitration law by which parties are left free to choose their arbitrator, venue and procedure, underpinned by a strong enforcement regime, has been important for our international standing. So, too, has our reputation for ADR and the willingness of our courts and the professions to encourage and facilitate mediation.
The Motion speaks of the rule of law. To me, the cardinal principle is that the law, not the state, is supreme. As Dr Thomas Fuller expressed it in 1733:
“Be you never so high, the law is above you”.
Fuller was famously quoted by Lord Denning in the Gouriet case in 1977, again by Lord Bingham of Cornhill in his seminal book on the rule of law, and just now by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
We in this country are confident of the independence and incorruptibility of our judges, which are guarantees of impartiality—we are fortunate in that—but certainty and consistency are also important for our reputation, and the doctrine of precedent has helped greatly with them. Transparency is also increasingly important, with electronic communications now disseminating information instantly and universally. I suggest that there is room for more televising of cases, particularly judgments and reasons for sentence. Of course, there must be restrictions, particularly on witness evidence, but more recording would enhance public understanding of judges’ decisions at home and internationally, unfiltered by an often populist and partial press.
Several noble Lords have mentioned the European Convention on Human Rights, the great work of, largely, British Conservative jurists, the vision of Winston Churchill, which substantially underpins our system and enhances its credibility. It allows the scrutiny of the exercise of state power by reference to a guarantee of fundamental human rights and freedoms justiciable in our courts under the Human Rights Act.
What do I see as the threats? I shall highlight just four. First, the political threat to the Human Rights Act is serious. Sadly, it comes largely from politicians, who are frequently complicit in falsely portraying it as a creature of the European Union and treating it, perversely, as a charter for the unworthy and a threat to law-abiding citizens. There is a crying need for a wider understanding of the reality—and, as several noble Lords pointed out, for respect for the judgments of the European Court of Human Rights.
Secondly, the contraction of legal aid as a result of austerity has risked access to justice, and so our international reputation for fairness. I hope that, where alternative funding methods cannot be found to fund legal advice and representation, in due course the Lord Chancellor’s powers will be exercised, as funds allow, to bring some of the excluded areas back into scope.
Thirdly, the threat to judicial review, mentioned by others, which we will debate later this month, threatens our reputation for the rule of law. The measures proposed would unfairly and unjustly choke off private funding to support challenges to the Executive, stifle interventions by public-spirited bodies and prevent judges from protecting litigants of limited means who challenge government action.
Finally, we have made far too little progress on judicial diversity. In the four years since the excellent report of the noble Baroness, Lady Neuberger, we at least passed the judicial diversity provisions in the Crime and Courts Act. However, last year, we missed a golden opportunity to appoint our first woman Lord Chief Justice. Since April last year, there have been three appointments to the Supreme Court Bench with not a hint of diversity among them.
The issue is important. Whatever we think of Oscar Pistorius and his trial, the international reputation of South Africa’s legal system has been immeasurably enhanced by our witnessing, day after day, the quiet, careful and considerate handling of his trial by Judge Masipa in a case mentioned by the noble and learned Lord, Lord Judge.
To achieve judicial diversity, we must achieve more diversity in the professions. However, the reduction in legal aid and the uneconomic remuneration rates for criminal work reduce the number of lawyers undertaking publicly funded work. When I asked my noble friend about that on Monday, he said that,
“there is less for lawyers to do and inevitably there will be fewer lawyers to do it”.—[Official Report, 7/7/14; col. 10.]
That may be technically accurate, but, equally inevitably, the reduction is in those doing publicly funded work. The reduction in the standard of lawyer undertaking such work has been mentioned, and is important. Wishing no disrespect to either my noble friend or me, the more that the professions sound like him and me and look like him and me, the less we are likely to present to the world a judiciary that is genuinely representative of modern Britain.
We are rightly proud of our legal system but we cannot stand still, and I fear that we may not be keeping up in important areas.
Baroness Flather (CB)
My Lords, in thanking the noble and learned Lord, Lord Woolf, for initiating this debate, I want to share some personal memories. I think I have known the noble and learned Lord longer than anyone else in this Chamber. We were at UCL. He was a year senior to me, but I had the great good fortune to know him from my student days. I must have been one of the luckiest law students in the country, because the other person with whom I shared dinners in Inner Temple was the noble and learned Baroness, Lady Butler-Sloss. In those days, to students like me Law Lords were gods. You never imagined that you might be able to sit next to one or two, listen to them speak and have their friendship. I thank all my great friends who have been wonderful to me and have given a lot of value to my life.
I want to say a few words about India because I think it is worth mentioning. When India was under the rule of the East India Company, there were three major presidencies and they all had separate laws. It was a big muddle. No legal system applied everywhere but for 200 years there were appeals to the Privy Council, which is quite amazing. One or two islands may still have appeals to the Privy Council. What could say more about the esteem in which the British legal system is held? People still feel that if they can have this as a last point, they should keep it.
Eventually, of course, there was the Law Commission chaired by Lord Macaulay which marked the beginning of the proper legal system in India. It is still going on. It has been slightly updated but basically it is the common law. Not only that but, as has already been mentioned, many of the former colonies took the system on and, from the period when Lord Macaulay did the work, countries such as Malaysia and Singapore have the same law still. There is a reason why this common-law system has lasted. It has lasted because it has value. Nothing which has no value can last. People think it is something that should continue; they do not wish to change it into something else.
In India there was one difference. There were a lot of personal laws. There was a Hindu law, a Muslim law and possibly a Christian law and a number of different personal laws about things such as marriage, adoption and inheritance. I fear that we might be starting to allow that in this country. Every country should have a single system of law and not allow people who come from different backgrounds and have different social attitudes to start developing their own laws. That is not only against the basis of common law but against the interests of this country. All laws should apply to everybody equally and should be enforced properly. India is a secular country and there are a number of religions. This is not a secular country. It behaves like one but it has a state religion. If there has to be a religious law, it can only be a Christian one. We have no personal laws dictated by religion and that is a very good thing. I think it should apply to everybody else as well.
I want to say a few words about the noble and learned Lord, Lord Woolf. He did the review of civil procedure. I think it is amazing that a report got enacted so quickly. That is not the fate of all reports. It must have been of value to have been enacted. He put down eight points and they are so sensible and so clear that even Parliament thought it was good idea to enact it.
I want to mention another thing, which is again personal. I had the great good fortune of knowing the mother of the noble and learned Lord, Lord Phillips of Worth Matravers. She was a friend and she liked me. One day—it was State Opening—when I came in from that end where the judges were sitting, first the noble and learned Lord, Lord Woolf, got up to greet me, and then the noble and learned Lord, Lord Phillips. By the time I got to a seat they said to me, “We thought maybe all the judges were going to stand up to greet you”.
Lord Walker of Gestingthorpe (CB)
My Lords, as a footnote to several of the eloquent speeches your Lordships have heard, may I mention one aspect of our legal arrangements which is not perhaps well known but makes a significant contribution to the rule of law and, incidentally, to the standing of this country? It is the participation by the Bar of England and Wales, and to a limited extent the judiciary, in the training of young lawyers, both here and overseas, in the art or craft of advocacy. This important work is undertaken entirely on a voluntary basis and without remuneration. I declare an interest as I am a patron—with the Chief Justice of Hong Kong and Justice Kiefel of the High Court of Australia—of the International Advocacy Training Council, which I will mention towards the end of my speech.
I begin with a little history. For hundreds of years, the training of young advocates was entirely in the hands of the judges and the Bar. It was a thoroughly hands-on training. The students spent the day in court listening to the arguments and judgments. They lived in the Inns of Court, where they discussed points of law and listened to their elders and betters discussing points of law. That went on until about the middle of the 17th century, when, for a variety of reasons, there was a sad and steep decline. Legal education in the Inns of Court became formulaic, perfunctory and basically useless.
I am glad to say that that decline has now been decisively reversed. The Inns of Court—all of them—accept that their primary function is as centres of legal education. The Inns and the circuits—the other bit of the Bar’s infrastructure—work to supplement and continue the learning given to students in the university law schools and the Bar’s professional training course, especially in the fields of practical advocacy and professional ethics. They are able to do that only because a large number of practitioners, including some of the busiest practitioners and judges, are prepared to give something back.
I would be delighted to tell the House more about the methods and techniques that we use—groups of six students, usually with one or two trainers—but I fear that it would take up too much time. I will say only that the instruction is intensely practical; it is largely at an elementary level because we are dealing with beginners—and with them one is concerned with the elements, not the niceties, of advocacy. There are, however, much more advanced courses. The most outstanding course, of which at least my legal colleagues will be well aware, is the week-long advanced advocacy course held every year at Keble College, Oxford, which goes on to more advanced matters, including appellate advocacy, and the important topics of handling vulnerable witnesses and expert witnesses. The courses at Keble are regularly attended by numerous students and trainers from overseas, and the Inns of Court have, to an increasing extent over the past 10 years or so, either singly or in combination, sent parties of trainers to other territories in order to pass on the system to them—to train trainers, as it were. They have been frequently to Hong Kong, Malaysia, different parts of the Caribbean, Mauritius and elsewhere.
About four years ago at Keble, the international Advocacy Training Council was launched—primarily an initiative of the English Bar, but readily and warmly supported by judges and advocates in Australia, Hong Kong, Malaysia and South Africa. In fact, the annual gathering for advocacy training at Stellenbosch is probably the only serious competitor of Keble for being the top world event in advocacy training.
The demand for advocacy training exceeds supply. Some Bars, such as those of Hong Kong and Malaysia, are very prosperous and can afford to pay some or all of the expenses of visiting teams. Other jurisdictions are less well off; and the visiting teams have to pay their own way there, as well as give their services free of charge. But it is striking how, wherever they go, the experience is one of huge gratitude for the help and encouragement given to the local Bar, nowhere more so than in Zimbabwe, where a team visited last year—probably the most testing task that they have undertaken, having received no support at all from the Government of Zimbabwe—but with great success.
In short, advocacy training has become for this country an invisible export, freely bestowed and enormously appreciated by the recipients. It is something of which we can be very proud.
Lord Plant of Highfield (Lab)
My Lords, I should like to add my thanks to the noble and learned Lord, Lord Woolf, for initiating this debate. Perhaps I may draw attention to my interests as set out in the register.
I want to devote all my remarks to the idea of the rule of law, because what exactly that might mean is not without controversy. There is a fairly straightforward idea of the rule of law, which I think is highly inadequate. This view is that the law is what a duly constituted sovereign says and that it emanates from a recognised sovereign power. The rule of law then is a matter of complying with those laws issued by that sovereign. This positivistic view is still much debated and discussed, but there are two fairly major objections to just seeing the law as validated by its source.
The first objection is that it is perfectly possible to have a duly constituted sovereign power that has a highly authoritarian set of laws. I do not want to prejudge it too much, but Egypt might be a coming example of this. There is no doubt that General al-Sisi was duly elected and there may well be a raft of highly oppressive laws coming down the track. On this positivistic view, however, they are still the law; complying with the rule of law is complying with those laws whether you like it or not.
The second objection to the positivistic view of the rule of law is that it is highly relativistic. For example, we are facing in this House the issue of the role of judicial review. One might say: in that jurisdiction with its laws, there is a place for judicial review and that is fine; and in this jurisdiction with its laws, there is not a very big place—or a place at all—for judicial review. These are perfectly equal. We have no reason for preferring one to the other. They are both fine within their own doctrine of authority, but both of these objections would lessen the attraction of the source view or the positivist view of law to those who are keen on the idea of the rule of law.
We need more—or more subtle—criteria for thinking about the rule of law. One place where this can be found, up to a point at least, is in Lon Fuller’s famous book The Morality of Law in which he lists a whole range of criteria that must be satisfied before the rule of law can be said to exist. For example, the law has to be public and not secret; the law should not be retrospective; there can be no strict obligations imposed on citizens without the force of law; all citizens are to be subject to the law in an equal way; we have to listen to both sides of a legal dispute; laws are to be mutually non-contradictory; they should be constant through time; and the official actions of government and its agencies are to be congruent with the law. This gives us a bit more to chew on than just the positivist view. However, critics have said—I think that there is a lot of force in this—that this does not take us very far, because these are not really moral criteria for thinking about the rule of law. They are just efficiency conditions for any legal system. So any legal system that is going to work will have to include most of these criteria that I have just read out. Therefore, this is not what Fuller calls it, namely the inner morality of law, but rather it is just a set of efficiency criteria for the operation of a legal system.
What we need is a view of the rule of law that pays attention to that, because they are important efficiency conditions, but we need to go beyond that to the place where the noble and learned Lord, Lord Woolf, was in his speech—namely, to think about the broader view of the role of basic moral principles in the law, as exemplified, for example, in the rights that are protected under the European convention, the Human Rights Act and so forth. We have to look at outcomes, not just processes. So much talk about the rule of law is about either the source of law or the Fuller type of criteria. We need to look at what kind of society we want the law to foster, which will include these various rights and protections for individuals, including the justice and fairness of the noble and learned Lord, Lord Woolf.
To finish on a slightly less heavy note, I was once in a committee in your Lordships’ House when someone got rather muddled up and came up with a wonderful comment, which I shall leave your Lordships with. This person said that if you are thinking about how the British legal system has impacted on the world, it has turned warlords into law lords—and I think there is something in that.
Baroness Butler-Sloss (CB)
I should very much like to have the opportunity to respond to the noble Lord, Lord Plant, but I think the short answer to what he said is that the concept of the English rule of law is the one that we follow and which we are discussing today, and which I would commend. However, it would be very good to have more time to discuss the very interesting points that the noble Lord has just made. I have a feeling that this, with some notable exceptions, is very much a lawyers’ meeting place, if not a picnic. I am afraid that, as yet another lawyer, I am contributing to that.
It is entirely appropriate that the noble and learned Lord, Lord Woolf, should have put forward this most interesting debate. Although he is too modest ever to accept it, he is an excellent example of the export of English law and its systems around the world. In my view, he is a shining example of the English legal system and our judiciary. He was one of the British and Australian judges in the final Hong Kong Court of Appeal; he set up the financial court in Qatar and was its first president; he has been an international mediator and arbitrator since his retirement; and, like other English retired judges and lawyers—not retired lawyers—he applies English law right across the world.
I shall speak briefly today about family law, as a former president of the Family Division. I want to make two points, one positive and one negative. First, I congratulate each of the Governments over the past 25 years on the introduction of good family legislation. The family courts apply almost entirely statute law, and it is an area where the legislation has played a much more important part than in many other areas of the courts, and particularly rather less of our common law. Government and Parliament are essential components of the application of family law to the litigants, who need a rather special type of help from the administration of justice. I applaud much of the legislation, from the Children Act 1989, through some excellent legislation under the previous Labour Government to the recent Children and Families Act, together with recent excellent reports such as Munro and Norgrove.
Having spoken of the good part of family law, I now turn to the bad part. From April this year, as noble Lords will know, there is no legal aid in private family law disputes, including children and finance, unless it comes within a very small list of exceptions such as domestic violence and child abuse. From my experience of 35 years sitting at different levels of the family court, I know that divorce or separation of couples who have lived together is a painful emotional process for most people, and for some it is traumatic. In a small but significant minority, perhaps 5% of cases, the former relationship turns corrosive and one or both former partners use the courts as the arena to fight their failed relationship. Some people in this position hate the other person so much that they cannot see why their children should love or have anything to do with the other parent, and they cannot come to any agreement. The government emphasis on mediation is excellent as far as it goes but it will not work in this 5% of cases. Judges and lawyers know this but successive Governments do not and either appear not to understand or will not listen.
Barristers and solicitors who did this private law work did not earn large amounts. Their desire has always been to seek a settlement of the issues between the parties, and their protocols require them to put the welfare of children first. They now do very little of this work because most litigants have no money, so men and women, untrained in the law but fighting their failed relationships through the arena of the courts, are appearing unrepresented before judges and magistrates. The task of the courts, faced with carrier bags of unsorted and disorganised papers in child cases and even more so in financial disputes over the former matrimonial home and maintenance, is huge and unmanageable. On a practical note, it clogs the courts and creates delay so I hope that the Government will listen to the fact that it is not cost-effective. It is only in suspected child abuse cases that there is legal aid so that the children may be represented, and I have to say to your Lordships that parents are the worst people in this group of cases to make any decisions about what should happen to their children. Anyone but parents would be better because this comes in the aftermath of their traumatic separation.
We have Magna Carta celebrations next year and, in my view, they will sound hollow in the face of the failure to be able to do justice in private family law disputes. Clause 40 of Magna Carta, written in 1215, provided for access to justice, which is not achieved in 2014. I am so glad that I am not a judge any more and do not have to sort out these problems. When other countries look across the Atlantic or the channel at the system of family law in England and Wales, they will not applaud us.
Lord Clement-Jones (LD)
My Lords, it is a great pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, in this terrific debate. I declare an interest as London managing partner of DLA Piper and as a member and City ambassador of the Law Society. As the noble Lord, Lord Hodgson, said earlier in the debate, the rule of law in the English legal system is a major source of British influence abroad, as the recent report by the Select Committee on soft power of this House made very clear.
I had the great pleasure recently of participating with the noble and learned Lord, Lord Woolf, in a conference on the rule of law in Turkey, which was a very timely reminder in that country of the essential values inherent in the concept of rule of law, and I thank him for initiating this superb debate today. Many noble Lords have mentioned the fact that next year we are celebrating the 800th anniversary of Magna Carta through the Global Law Summit and other events. It is particularly important that we hand down this tradition to each new generation and that they are made aware of how precious it is.
The rule of law is not only a philosophical ideal and a bastion of individual rights. Our legal framework is critical to economic development, to the creation of jobs and to a successful market economy. A key factor is the integrity and independence of the judiciary and, as my noble friend Lord Marks said, London has become a world leader in dispute resolution. English legal practitioners are another reason for using English law. We have a long and well respected tradition of excellent legal services based on trust and performance. Huge effort over the past few years is beginning to result in a much more diverse profession, with commitment to the PRIME initiative by an alliance of law firms and legal departments across the United Kingdom to broaden access to the legal profession. Pro bono ethos and practice is much more embedded, too, within the legal profession. The noble Lord, Lord Livingston of Parkhead, in his first contribution to this House last December, confirmed his view that the legal services sector is one of the most important sectors for the UK. In fact, it employs almost 350,000 people. The noble Lord, Lord Pannick, referred to the fact that the rule of law is now one of Britain’s great exports; exports of legal services totalled more than £4 billion last year.
Our law and law firms are becoming ever more international to meet the needs of businesses. Law firms such as my own have responded by becoming international in their own outlook, establishing a global presence. There are close links between legal education, our laws and the legal sector. We attract students from all over the world. This needs to be nurtured. The coming decade promises to see increased competition as other cities such as Paris, New York and Hong Kong aspire to compete with London as a world leader in legal services.
We also face legislative threats such as the common European sales law being proposed by the European Commission as an EU civil law alternative to English common law. Protectionist regulations in growth markets such as India and a number of other emerging markets are, however, a major stumbling block, inhibiting the export of UK legal services and, indeed, opportunities for their own lawyers. The profession and the Government have, rightly, made persuading emerging markets to tear down their barriers to entry a key priority. Staring in 2011, the Ministry of Justice’s Plan for Growth set out the importance of English law and English legal services to the UK economy, and the need to open up overseas markets.
Our position in Europe is vital in achieving this goal. Another benefit from the EU is the freedom of establishment under the establishment directive. No wonder that, according to a recent CBI survey, two-thirds of law firms think that leaving the EU will have serious negative consequences. The challenges we face to ensure that the UK remains the world leader in the rule of law, in our standards of justice, in the provision of legal services and in the opportunities that exist in international jurisdictions are significant. However, we can meet them if we heed today’s warnings. I hope that we will be able to fulfil, as Ken Clarke said when he was Lord Chancellor, the UK ambition of becoming lawyer and adviser to the world.
Baroness Prashar (CB)
My Lords, as a non-lawyer I feel like a gate-crasher into this lawyers’ and judges’ picnic. However, I do not regret having gate-crashed because, as I expected, this has been an informative, interesting and thoughtful debate.
I am really delighted that the noble and learned Lord, Lord Woolf, secured this debate a year before we mark the 800th anniversary of Magna Carta. He introduced the debate with his characteristic wisdom and I agree with much of what he has said. The legal system of the UK has made an enormous contribution to the international standing of the UK. We have much to be proud of and much to build on, but we must also be watchful of what other noble Lords have said.
While we can look with pride at the great history of our legal system and the contribution that it has made to the world, we can also look forward to the huge contribution that our legal system can make in a world which faces significant challenges. By so doing, we can remain aware of what it is that we have to cherish in our own country.
The late Lord Bingham, in his brilliant book The Rule of Law, said,
“the rule of law is not fixed for all time. Some countries do not subscribe to it fully, and some subscribe only in name, if that. Even those who do subscribe to it find it difficult to apply all its precepts quite all the time. But in a world divided by differences of nationality, race, colour, religion and wealth it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interests of good government and peace, at home and in the world at large”.
The question is how we should continue to strive for it here and abroad. The answer is by example; by adhering to the rule of law; by constant vigilance; by maintaining the standards and the independence of our judiciary, and by the excellence of our judiciary and legal profession. It is also by continuing to engage with international bodies such as the United Nations, the Commonwealth and other professional organisations to promote the rule of law.
The rule of law, however, does not emanate just from state-based legal institutions but from wider socio-political norms and relationships. While focus on legal institutions, writing of constitutions, laws, training of lawyers and reforming the judiciary is necessary, it is not enough. Attention needs to be paid to value systems and informal justice systems and to the wider political and social structures in which judicial institutions are embedded. It needs to address power relations and entrenched interests, as well as how state-based legal systems articulate with customary law and informal justice practices.
The British Council—and I declare an interest as its deputy chair—has worked and is working in countries where there might be more than one legal system in operation or where informal justice systems co-exist alongside more or less effective state institutions. The approach adopted by the British Council is subtle and inclusive. It is one that understands and values UK experience, but is able to apply it on the ground in partnership, working with local actors and with the grain of local culture and context. This engagement by the British Council has shaped its understanding of the link between justice, development and economic growth, and how to achieve that through subtle and oblique approaches, rather than by hard selling.
I am delighted that the British Council is a partner in the Global Law Summit, an international legal conference to be held in London next February. This conference will be celebrating 800 years of our legal history, showcasing the British offer and advancing our shared understanding of how to promote the rule of law worldwide. We are proud to be working with other partners to enhance the international standing of the UK and its legal system and the observance of the law in this country and abroad.
Lord Ramsbotham (CB)
My Lords, like my noble friend Lady Prashar, I feel that I am gate-crashing a debate for which I am very much not qualified to take part. It reminds me of a defence debate in which it was calculated that 36 stars had taken part, so others felt somehow excluded. Rather than the picnic referred to by my noble and learned friend Lady Butler-Sloss, however, I regard this turnout as a tribute both to the importance of the subject and to the admiration and respect with which my noble and learned friend Lord Woolf is held in this House. I join those who have congratulated him on and thanked him for this debate.
I propose to base my remarks purely on the contribution that the observance of the rule of law has made to the international standing of the United Kingdom. However, I fully agree with those who have expressed their concern about the creeping erosion of judicial independence and discretion.
Like the noble Lord, Lord Hodgson of Astley Abbotts, I have to declare an interest as I was a member of the Select Committee on Soft Power and the UK’s Influence, which has already been referred to. I am not going to repeat that judgment but merely want to say that one of the most powerful pieces of evidence we heard was from the high commissioner of Mozambique, who described why Mozambique had applied to join the Commonwealth. Top of the list was the rule of law. This supports absolutely what my noble and learned friend Lord Judge said.
I want to talk about just two aspects. I was very interested in what the noble and learned Lord, Lord Morris of Aberavon, said about his experience with Kosovo. Today’s Armed Forces are in a very difficult position. The law of armed conflict and the Geneva Convention were drawn up to apply to combat in a place of war between armed forces representing nations, and not for what is currently happening, which is referred to as “war among the people”. That is confusing because if a soldier breaches the law, he should, quite rightly, be arraigned under the law.
I well remember spending a considerable amount of time while on operations—for example, in Northern Ireland—on making absolutely certain that every single member of my battalion understood the rule of law. Not only was it explained to him but afterwards he carried it—in the form of a little yellow card— in his pocket to make certain that he would always know it. That applied on the streets of Northern Ireland, where we were working with the police; it does not apply so much in some of the situations with which soldiers are currently faced. However, it is absolutely certain that if any member of the Armed Forces does breach the law, they risk undermining the reputation of the United Kingdom. That happened in the disgraceful affair in Iraq, which has been discoloured by the finding that so many of the witnesses were corrupted, as it were, into giving evidence and demanding compensation, and, of course, in the recent sentencing of a Marine sergeant for murder.
It is essential that our Armed Forces should be aware that there is all the difference in the world—as Sir Michael Howard, the distinguished historian, pointed out—between the Roman words bellum, which is the legal use of force between nations, which is one description of war, and guerra, which is the illegal use of force in a nation. To declare war on terror and on drugs, which are neither bellum nor guerra, is confusing to the Armed Forces, which have to exercise the rule of law.
The second area to which I shall refer is the criminal justice system. As we all know, this system consists of the police, the courts, prisons and probation—but it is a system, as a whole. My noble and learned friend Lord Woolf referred to the legal element of the system. I just want to say that I am very concerned that, as the noble Lord, Lord Lester, and my noble and learned friend Lord Brown have said, it is quite wrong if the Government are seen to be breaking the law as regards the criminal justice system. Noble Lords have mentioned the deliberate problem around voting rights for prisoners. I would add to that the disgraceful procrastination over the numbers of prisoners who are held on indefinite sentences for public protection, a subject which has been raised many times.
I am also extremely alarmed that in the current Criminal Justice and Courts Bill, which is coming towards us, there is a defiance of a Supreme Court ruling on the allowance of the use of force on children to instil good order and discipline. It is worrying because, instead of the Lord Chancellor seeming to resist any failure to observe the rule of law, the breaches of the rule of law seem to be coming from the man who is responsible for the rule of law. Not only does it send the wrong message about the United Kingdom’s observation of the rule of law; it sends exactly the wrong message to those who are imprisoned because they themselves have failed to observe the law.
Lord Taverne (LD)
My Lords, I, too, speak on this topic in this august legal gathering with hesitation and misgiving. I last practised law in 1966 and had only 12 years at the Bar and one year as a Silk, practising mainly before that friendly god the Judicial Committee of the Privy Council. I was then lucky enough to become a Minister at the Home Office in that glorious period between 1966 and 1967 when Roy Jenkins was Home Secretary, which was the greatest period of law reform since the Second World War. Since then, however, I have not been directly concerned with the law. It has changed profoundly, and whatever law I once knew I have forgotten—hence my hesitation, especially since I shall voice some critical comments.
I believe that recent discussions about our legal system have missed one very important point. The Government rightly argue that the cost of legal aid has soared and must be controlled. Lawyers and others concerned with justice rightly complain that cuts in legal aid have restricted access to justice—a fundamental right in a democracy—but no one blames the legal system. I fear that we can no longer claim that the legal system in England and Wales is a model for the rest of the world, in at least one very important respect. I shall restrict my comments to civil litigation, but I believe equally valid criticisms can be made of proceedings in criminal cases.
The costs of litigation are not only exceptionally high by international comparisons, but unpredictable and can end up being out of all proportion as a subject matter in dispute, causing financial ruin to the parties. Valiant attempts to limit and reduce costs, such as the reforms proposed in 1999 by the noble and learned Lord, Lord Woolf, and the proposal of Lord Justice Jackson, implemented in 2013, have not prevented the seemingly inexorable rise in costs. At the same time, according to the Government’s own figures, when the Legal Aid, Sentencing and Punishment of Offenders Act became effective in April 2013, legal aid was no longer available to some 600,000 of the million or so who previously qualified.
Our legal system has become dysfunctional. Why? I will mention some plausible explanations. Losers have to pay winners’ costs, so costs are ratcheted up. Once you start to litigate, you have to go on to the bitter end, because abandoning your case half way means you are the loser. Lawyers, who charge by the hour, have no compelling incentive to limit costs. Even when they want or try to, they have to react to opponents’ moves.
The noble and learned Lord, Lord Woolf, who I have always greatly admired, put forward reforms that offered hope by giving judges control over litigation to see that it was conducted efficiently and economically. So why have costs risen even higher? I am told that a major reason is that there is now much more litigation about costs themselves, which can be very large. Lord Justice Jackson was asked to review the rules and principles governing those costs, and judges now have discretion over their awards in the light of the conduct of the parties. However, this leads only to more jockeying and argument about costs, adding to their total. The sad fact is that the amount of litigation about costs has no parallel in any other country.
Once the issues have been defined, the parties’ lawyers must provide the court with estimates of the cost of running the entire case, which the court must review and approve to make sure costs are not disproportionate. Budgets are approved at the first case management conference after the close of pleadings, but this means that would-be litigants have to retain lawyers to start proceedings and work out budgets. They have to commit themselves to proceedings that may be very expensive, without any idea of what they will eventually cost. Who wants to go to law if their means are limited?
No wonder there has been a vast rise in the number of litigants in person—but litigation demands legal knowledge and expertise in court procedure. Those who argue their own case without either are almost bound to be less likely to obtain justice. Inevitably, cases argued in person also take much longer and add to the costs of administration.
What should be done? First, I have always had doubts that the public are best served by lawyers being paid on the taxi-meter principle: by the hour. More importantly, there should be a major review of the administration of civil justice. It is perhaps the oldest public service. Access to justice at reasonable cost is a vital principle, and the fact that it is no longer available undermines our claims to be a civilised society. Yet this public service has never been independently reviewed. Of course lawyers must play a major part in any review, but they should not themselves be the final arbiters of how the public can best be served. There is something seriously wrong with a system in which, to litigate, you have to be a plutocrat or a pauper.
Lord Phillips of Worth Matravers (CB)
My Lords, one of the first visitors that I had when the Supreme Court opened its doors in 2009 was Andrew Li, the Chief Justice of the Court of Final Appeal in Hong Kong. He had come to ask me whether I would permit two justices of the Supreme Court to spend a month each year sitting as non-permanent judges of his court. I hesitated for a moment, wondering whose permission I should seek in relation to this request, and then I realised that there was no one. I was truly independent. It was a rather heady moment and I unhesitatingly agreed. Could there be any better contribution to the rule of law than to export two members of the United Kingdom Supreme Court to buttress the independence and standing of the impressive Court of Final Appeal in Hong Kong?
My successor, the noble and learned Lord, Lord Neuberger, not only endorsed my decision but goes himself to sit in Hong Kong in the long vacation. There are now no fewer than seven Members of this House, of whom I am one, who sit each year in the Hong Kong court in China. That is really rather remarkable, and there is no better illustration of the worldwide impact of English law and English lawyers. Another illustration is the recent invitations by Mauritius and the Bahamas, at their expense, to the Judicial Committee of the Privy Council to go and sit in their countries, thus demonstrating their devotion to the rule of law.
Last Thursday, this House debated the importance of the manufacturing industry to this country. Today, thanks to the initiative of my noble and learned friend Lord Woolf, we have the opportunity to consider the contribution that English law and English lawyers make not merely to this country but to the world. My noble and learned friend Lord Woolf himself exemplifies that contribution. As the House heard, on his retirement as Lord Chief Justice he was immediately invited by the Emir of Qatar to set up an international commercial court in Doha—where, as on other occasions, I have followed in his footsteps.
That was not the first such court in the Middle East. In 2004, Dubai set up an English language court, applying common law in the resolution of commercial disputes. The first Chief Justice of that court was Sir Anthony Evans, a distinguished commercial judge who had sat in the English Court of Appeal. These courts are an indication of the high regard in which English commercial law and English commercial lawyers are held around the world, and my short speech will focus on commercial law.
The most remarkable development during my life in the law has been the growth of English commercial lawyers. When I started at the Bar some 50 years ago, there was a handful of commercial Silks who appeared in the commercial court and occasionally on what was known as the Hong Kong circuit—the courts of Hong Kong, Malaysia and Singapore.
When I joined Admiralty Chambers, then situated at 2 Essex Court, we had only one Silk, and when 10 years later I moved to 1 Brick Court we had only two. Now, Quadrant Chambers, the successor to 2 Essex Court, has 19 Silks and Brick Court Chambers no fewer than 36. Barristers from these and similar sets of chambers are appearing not merely in the courts of this country but in arbitrations around the world where contracts governed by English law are being arbitrated. Today, we have heard from the legal globetrotter, the noble Lord, Lord Pannick, about his many appearances around the globe.
Several sets of chambers have set up satellite chambers in Maxwell Chambers in Singapore as a base for operating there. Today, the influence of English law and English lawyers in dispute resolution is largely latent because the resolution is taking place in private arbitrations.
The growth of City of London law firms has been even more remarkable. Fifty years ago, these were modest partnerships. Indeed, the number of partners was limited by law. All the partners knew each other well. The large international law firms were based on Wall Street. For 2013 the annual report of Clifford Chance records that the average number of partners during the year was 411. That firm is but one of a number of giant law firms that have their base in London, but the offices of these firms are to be found in almost every major trading city of the world.
What is the explanation for the international pre-eminence of English commercial law and lawyers? I believe that it is twofold. English law is attractive to commercial men because much of it has been custom-made by outstanding common-law judges, often sitting in the Appellate Committee of this House, who cut their judicial teeth in our world-famous Commercial Court. Today, 50% of the contracts concluded around the world are governed, by the choice of the parties, by English law.
The other is the recognised integrity of English lawyers, which owes much, I believe, to the influence of the Inns of Court and the Law Society, and to the importance accorded to the rule of law in this country which Parliament and the Executive must never cease to respect and uphold. We should all be grateful to the noble and learned Lord, Lord Woolf, for underlining the importance of this.
Lord Beecham (Lab)
My Lords, of course, I join others in your Lordships’ House in congratulating the noble and learned Lord, Lord Woolf, and thanking him for giving us the opportunity of an important and very well informed debate.
The reputation of our English legal system stands as high as it does precisely because of the wisdom, expertise and independence of our judiciary, as exemplified by the contributions to this debate of noble and learned Lords who have played such an important part in the development of our jurisprudence and, indeed, to the deliberations of this House. It is a matter of deep regret that in a number of respects that reputation is under threat from government policies reflecting a growing indifference—perhaps even hostility—to some of the cardinal principles that lie at its heart.
As we are frequently reminded, next year sees the 800th anniversary of the sealing of Magna Carta—a document that has acquired an iconic, not to say almost mythical resonance as a charter of liberties. Only three clauses survive unchanged over the centuries, the most important perhaps being the pledge to,
“sell to no man … either justice or right”.
I shall refer later to the issue of whether and to what extent the positive version of the provision, which might be encapsulated in a pledge to ensure access to justice or right, is currently under threat. I am grateful to the noble and learned Lord, Lord Judge, for reminding us that one of the provisions was to render the king subject to law.
In his book The Pursuit of Justice, the noble and learned Lord, Lord Woolf, described Magna Carta as,
“a symbol for the values of the common law, remarkable because it is such an historical statement of the fundamental principles of the rule of law”.
As he said in the book and again today, it is one adopted by other, later jurisdictions from the USA to India. Lord Bingham, who alas is no longer with us, records in The Rule of Law that Magna Carta was cited in no fewer than 60 United States Supreme Court judgments between 1940 and 1990. I cannot resist quoting the memorable line of Tony Hancock’s jury foreman in a parody of “Twelve Angry Men”:
“Magna Carta … Did she die in vain?”.
However, the common law, powerful and flexible as it has been, and instrumental alongside the independence and integrity of our judiciary in earning the admiration of other countries and their jurists, does not stand alone, nor is it immune from threats which seem to be growing in number and intensity. We have debated many times in recent years and months the vexed question of access to justice, particularly in the light of the steady and continuing undermining of judicial review—referred to by a number of noble Lords today, including the noble Lords, Lord Lester and Lord Marks—which we will be debating in the Criminal Justice and Courts Bill, and the erosion of the availability of legal aid and advice in the courts and tribunal system. Whole swathes of rights and remedies are now beyond the reach of many of our citizens, unless they have the means to pay for legal services, or the good fortune to obtain advice and support from an increasingly overloaded and underresourced voluntary sector.
On 21 July we will be debating the latest road block to be placed on the road to justice—the residence test for legal aid—set to deprive even children, admittedly only those over the age of 12 months, of support if they have been resident for less than a year. It might be thought that that is another example of the politics of the dog whistle, which in the view of the Joint Committee on Human Rights is in flagrant violation of the European Convention on Human Rights. That convention is very much the United Kingdom’s contribution to the post-war construction of a democratic Europe in which the rule of law has become the cornerstone of civic and judicial structures, and we all owe a Conservative politician who became the Lord Chancellor, Sir David Maxwell Fyfe and later Viscount Kilmuir, an enormous debt for what became in effect the Magna Carta of the 20th century. Yet, increasingly, a disturbing trend has emerged in which human rights are devalued and the role of the convention is disparaged in the very country which did so much to advance them. As the noble and learned Lord, Lord Woolf, pointed out, if England is to be true to its heritage, which is a commitment to the rule of law, it has to be, and has to be seen to be, a champion of human rights. Making the human rights convention part of our domestic law has proved a great success. He observed that it embodies very much the same values that have been recognised by the common law for centuries. And to those who denigrate the convention, the late Lord Bingham asked, again in The Rule of Law, which of the rights would be discarded.
But rather than cherish these rights, the Government see in our judicial system a commodity to be traded. Access to justice for hundreds of thousands of citizens a year is made hugely more difficult while foreign litigants are rightly encouraged to use our skilled lawyers and our courts to resolve their differences. Justice is in danger of being seen primarily as a commodity and thus as a contributor to our balance of payments, welcome of course though that contribution is, and a tribute as it is to the skill and experience of our practising lawyers and the judiciary. However, while these litigants—Russian oligarchs and others—enjoy a Rolls-Royce service, our citizens are having to contend with an increasingly inefficient and ineffective system. The problems of criminal law practitioners and the future of the criminal Bar in particular have been referred to frequently, and notably today by the noble and learned Lord, Lord Woolf. We have the chaos in the recently reorganised and fragmented probation service, and in our overcrowded prisons in which we house, after a fashion, more people per head of population than any other EU country and with a lower age of criminal responsibility. These are conditions which are little short of scandalous.
The situation in our civil courts is also very worrying. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, there is growing concern over the number of litigants in person, especially in the field of family law. Last week I attended the opening of a personal support unit offering non-legal support to litigants in person at Newcastle Crown Court. At that event Lord Justice Briggs confirmed that the issue of delays and costs of unrepresented litigants in person was becoming a serious matter, as the noble and learned Baroness reminded us in the debate.
These problems are also affecting other parts of the civil justice system. I am indebted to Patrick Allen from the leading solicitors’ firm Hodge Jones & Allen for an update on some other aspects. It appears that papers can be lodged in a county court, date-stamped and sent to Salford, because that is where all matters now have to be routed, where they will again be date-stamped but not necessarily issued before deadlines have expired, thereby creating the risk of a case being out of time unless the High Court extends it. The savings to be engendered by this new procedure, all of £3 million to £4 million a year, are not even going to be recycled into the system, as the Civil Justice Committee of the Law Society has been told. The promised but belated investment in IT, some £75 million over five years, is to be prioritised for the commercial court. We can understand the incentive for doing that, but equally if all the resources go in that direction there will be little prospect of improving matters for domestic litigants.
In addition, the problems of the decision in the Mitchell case, which imposed what many think were disproportionate sanctions for failure to meet rigid deadlines under the Jackson rules, has led to all co-operation between parties being withdrawn. I understand that the position is to be reviewed, and I am sure that the profession more generally will be awaiting the outcome with great interest. It seems that, as the noble Lord, Lord Marks, rightly referred to, the system of arbitration is being developed. Apparently the new and very effective approach of an alternative arbitration system has been developed by a leading Silk, Andrew Ritchie QC, which will be cheaper, quicker, and more collaborative. It is to be hoped that that will have some impact.
The frustration experienced in the civil and criminal courts also extends to the magistracy, where local justice is perceived as under threat from court closures, large benches and more full-time district judges. The system of which we have been so justly proud, and which other jurisdictions have so often sought to emulate, is under threat as never before. This threat is not from a medieval monarch, but from an obtuse ministry which seems prepared only to pay lip service to the tradition of centuries and the adjustments required to reflect and cater for changing needs in our evolving society. The question at next year’s celebration will not be:
“Magna Carta … Did she die in vain?”,
but “Magna Carta—does its spirit live on?”. If not, where stands the reputation of our much admired legal system?
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble and learned Lord, Lord Woolf, for affording the House the opportunity to discuss the United Kingdom’s legal systems. As many noble Lords have said, his contribution to the justice system has been highly significant. The noble Baroness, Lady Flather, chose her dining companions well in those days. I will not repeat the many tributes, but they were all justly described. However, I also say that the Government welcome not only the contributions today from distinguished lawyers and judges but also those from non-lawyers, because of course the law does not belong to lawyers or judges, but to all of us.
This has been a rich debate, full of legal history and the history of legal maxims, the development of Magna Carta and the protection of rights since. Material for many debates has indeed been provided by the contributions of noble Lords. However, I am sure that one thing on which the whole House can agree is that our legal institutions and services are a vital part of the constitution. As a result of their deserved reputation for integrity and excellence, the influence of our legal institutions and services reaches across the world. They not only shape other jurisdictions but also provide the conditions for commerce to flourish.
I first address the question of the rule of law and our constitution. It is crucial to recognise that the rule of law is at the heart of the British constitution, underpinning a fair and just society in which citizens, businesses and civil society can help our nation prosper. As many noble Lords reminded us, next year sees the 800th anniversary of Magna Carta, a document of great symbolic importance. It established the principle, among others, that executive power is not above the law.
The 800th anniversary of the sealing of the charter affords us an opportunity to reflect on and celebrate its values. The Government are working with the Magna Carta 800th Committee to organise commemorative events, which I am sure that many noble Lords are greatly anticipating. Magna Carta began to chart the boundaries of the relationship between the state and the individual, a dialogue that persists to this day. Much of what we do here in Parliament concerns the defining of the limits of state power when it represents a potential threat to individual liberty.
Today the rule of law ensures that all, including the Executive, are subject to a clear, certain and accessible body of law, determined by Parliament and interpreted and applied by an independent and impartial judiciary in a timely manner. The Lord Chancellor is under an oath to respect the rule of law, providing Britain with a system that protects the rights of citizens with respect to the state in areas of public law, and to provide for the fair and reliable resolution of private disputes. We have a judiciary with statutory safeguards through the Constitutional Reform Act 2005. Its members are independent of the Executive and of each other, and this allows for the law to be interpreted and applied impartially. It is to the great pride of our country that our judiciary is held in the highest regard, not merely here but throughout the world. The quality of our judiciary and its incorruptibility is something that we should never take for granted.
Furthermore, the Lord Chancellor has the duty to provide an efficient and effective system to support the business of the courts and tribunals. There has been considerable criticism not only of the Lord Chancellor and the role that he now performs as Secretary of State but of the holder of that office. Indeed, the Lords Constitution Committee is to conduct an inquiry into the office of Lord Chancellor. The Ministry of Justice will provide evidence to the committee in due course on that issue.
It is our shared understanding of, and respect for, the constitutional principles that I have outlined that enables the judiciary and Executive to work in partnership in the delivery of justice so that it can continue to be administered efficiently and effectively.
The noble Lord, Lord Marks, criticised the lack of diversity in our judiciary. It is true that, in the High Court, 21 women out of 108 is not a happy percentage—in the circuit Bench, one in six is a woman from a total number of judges of 654—but I am glad to tell the House that there has been a considerable increase in the number of appointments of women to the Bench recently.
A number of noble Lords raised the subject of judicial review and changes that the Government wish to bring about by the Bill that is currently before your Lordships’ House. I have been well and truly put on notice that there are a number of aspects of Part 4 of that Bill about which there is concern. I hope that noble Lords will forgive me if I do not give a full response to all the potential criticism at this stage, but that would be only a dress rehearsal for what may follow. I well understand the depth of concern about judicial review. I hope, however, that when we come to debate that issue, all noble Lords, whether with a legal or other background, will bear in mind that there are perceived by some people, rightly or wrongly, to be areas of judicial review where it has made incursions beyond those which those who developed the doctrine originally anticipated. However, I should make it clear that the Government, and certainly any Government of which I am a part, do not wish to abolish judicial review, contrary to what is occasionally written in the press, but value it as an essential part of the constitution.
A number of noble Lords raised the question of human rights, not least my noble friend Lord Lester, of whom I was a colleague on the Human Rights Commission. Rightly, attention was drawn to the terms of the European Convention and those who drafted it. I know that very few politicians or lawyers on any political wing would quarrel with the convention itself. What, however, is more open to debate is the relationship between the Strasbourg court and our courts. It is a legitimate reason for debate and a matter on which a number of people on all sides of the political divide have expressed a view: whether the Supreme Court should be the ultimate arbiter of these things and whether Section 2 has either been wrongly interpreted or should be amended. However, I should make it clear that this coalition Government have no intention to repeal or amend the Human Rights Act.
There was also considerable criticism of the cuts in legal aid. The noble and learned Lord, Lord Woolf, I fear, was right when he anticipated that I would mention austerity, which indeed I do. The Government attempted to identify those areas where legal aid was most needed and those areas where it should be possible—if not sometimes difficult, as we accept—for those needing on the face of it some legal assistance to manage by other means.
The full effect of the legal aid cuts will take some little time to assess. The Government are committed to reviewing this within five years—but it might be better to specify a period of three to five years from the implementation of the reforms in April 2013. The difficulty with making any assessment is that there was a considerable spike in the number of claims started just before that date, so it is almost impossible to form a clear view of the effect.
Of course I share with all noble Lords the concern that access to justice should not be denied. Indeed, I, with the noble Lord, Lord Pannick, was part of a group of Peers who were behind an amendment to the LASPO Bill to say that when economic circumstances changed, the Lord Chancellor should consider enlarging the scope of legal aid. I hope that that is indeed the position.
I could discuss the rule of law in more detail. It was elegantly discussed by the noble Lord, Lord Plant, and there has been repeated reference, quite rightly, to Lord Bingham’s great work The Rule of Law, which I am sure will be read for many years to come.
There are few better illustrations of the strength of our legal services than their overseas influence. The rule of law provides the best environment for the nourishment of commerce and economic growth. In turn, this assists the growth of business and wealth around the world. As the noble and learned Lord, Lord Woolf, will be well aware from his own experience, the expertise of our practitioners, coupled with the enduring strength of our legal institutions, is sought by many clients across the world. We should also remember the influence of many legal professionals who, having qualified in the United Kingdom, return to their home countries and bring their education and expertise back to enrich their own jurisdiction. Our legal practitioners, and those who train here, benefit not only the United Kingdom but all the jurisdictions in which they work.
The noble and learned Lord, Lord Judge, rightly commended the work of the Judicial College and its increasing reputation abroad. He was too modest to mention his own significant role in training judges. I must declare an interest as a nervous assistant recorder who was inspired by him to set about the difficult task of sitting as a judge, and who listened to his stirring speech about the dissenting judgment of Lord Atkin in Liversidge v Anderson. The noble and learned Lord, Lord Walker, rightly reminded us of the importance of advocacy training, and how this is a skill that we are spreading beyond our shores.
English contract law has long enjoyed an excellent reputation. Its combination of consistency and flexibility, backed by courts that are independent, impartial and able to enforce their judgments, ensures that it is favoured by many businesses around the world. The noble and learned Lord, Lord Phillips, told your Lordships about the positive explosion of commercial law since he began in practice.
As a fellow of the Chartered Institute of Arbitrators, I am pleased to say that a particular strength of our legal services is arbitration. In a 2010 survey, London was voted the preferred seat of arbitration by an international audience, and we will strive to ensure that international lawyers and business continue to take advantage of our expertise and state of the art facilities when resolving disputes.
Noble Lords will need little further elucidation of the strength of London, with its diverse range of practitioners, close links to the City and fine modern facilities such as the Rolls Building. But as this debate is on UK legal services, I should add that there are high-quality providers in centres such as Edinburgh, Glasgow, Belfast, Leeds, Sheffield, Birmingham, Manchester and Liverpool, offering choice and value to a variety of clients in a wide variety of sectors. It is important to point out that some legal activity—in fact, quite a lot of legal activity—is carried out on a pro bono basis, as the professions generously provide their expertise to those who could not otherwise afford to use their services.
The noble Lord, Lord Clement-Jones, stated the ambition that we should become lawyers and advisers to the world. He was right to remind us of the level of exports accounted for by legal services. They were estimated to generate £20.4 billion for the UK economy in 2012, of which just under £4 billion were exports. I am not sure how much of that was contributed by the one-man export drive that is the noble Lord, Lord Pannick. Of course, the influence goes further in terms of soft power—referred to by the noble Lord, Lord Ramsbotham and my noble friend Lord Hodgson—together with the export of judges, referred to by the noble and learned Lord, Lord Phillips.
I am delighted to draw your Lordships’ attention to two exciting events that will be taking place in the United Kingdom in 2015. In April 2015, Glasgow will host the Commonwealth Law Conference. The conference has the overarching themes of resources, responsibilities and the rule of law. It is organised by the Commonwealth Lawyers Association and the Law Society of Scotland, and I am certain that it will draw a strong attendance from across the Commonwealth, with whom we share so much legal heritage. As the noble Baroness, Lady Prashar, reminded us, in February 2015, London will host the Global Law Summit. This one-off conference will examine how the principles of Magna Carta offer innovative solutions to achieve commercial, political and social goals. It will also provide outstanding opportunities for business and collaborative working. The venture has wide support among my government colleagues, the legal professions in this country and business. Indeed, we are expecting more than 2,000 delegates, comprising political, business and legal leaders from across the world.
Before concluding, I should pick up one or two points made by other noble Lords in the debate. My noble friend Lord Marks referred to the importance of televising court proceedings. That is a difficult area about which I think that opinions can reasonably differ. I am not sure that everyone watching the Pistorius trial would necessarily have been persuaded that televising trials was always in the public interest.
We were rightly told by the noble and learned Baroness, Lady Butler-Sloss, of the challenges that judges—in particular, those in the Family Division—face in dealing with litigants in person, when disputes are so often acrimonious. She reminded the House that there is still legal aid for mediation. Mediation has a good story to tell, although I accept that it is not always the answer. Much needs to be done to improve the lot of litigants in person who, I accept, must inevitably be a greater feature of the legal landscape. I pay tribute to the judiciary as being most helpful, together with court officials, in developing systems. In the High Court of Justice and other courts, increasing help is to be had for litigants. There is improvement of access via computer and signposting to assist those who need help. The Government are expecting reports from two High Court judges on the problems confronted by the courts in dealing with litigants in person. That is a matter that should certainly be kept under review.
We also heard from the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Morris, about the contribution of the rule of law to international law and conflict. It was reassuring and encouraging to hear that the rule of law as we understand it is making a great contribution even in the complex scenarios that international conflict continues to throw up.
Our system has much in it to be admired but, as the noble Lord, Lord Taverne, told us, it is expensive. The expense of litigating can mean—as he rightly said, it has often meant in the past—that it is only the very rich or those on legal aid who can afford to litigate at all.
The noble and learned Lord, Lord Woolf, made a great contribution to improving the legal system by the Civil Procedure Rules, but I am sure that he would be the first to admit that it is not beyond further improvement. Various initiatives such as cost capping are helping. The reforms in Part 2 of LASPO, which implemented the Jackson report, are beginning to have their effect. The use of qualified one-way cost shifting and the reduction of the recoverability of ATE premiums in conditional fees have made it a little more economical to litigate. This area is a matter of great concern to any Government. It is a matter, one hopes, of co-operation between government, the judiciary and lawyers to ensure that we have a system that maintains accessibility to all.
The global summit, to which I referred, marks an apt point at which to conclude my remarks. It reflects the enduring relevance of our constitutional heritage while providing an opportunity for the UK legal service to continue to demonstrate its prowess across the globe. Our system has many admirers. To continue the quote from the John of Gaunt speech started by the noble Lord, Lord Pannick, it is indeed a,
“precious stone set in a silver sea”,
as indeed is the noble and learned Lord, Lord Woolf, to whom I pay great tribute for initiating this debate.
Lord Woolf
My Lords, it is a pleasure to be able to say that this debate has exceeded all my expectations. This is because of the quality and spirit in which contributions have been made. It is not for me now to take up the time of the House by going over the various contributions, but I think that your Lordships will forgive me if I echo one or two points that have been made.
First, I particularly thank those who are not lawyers who have taken part in this debate. Their contributions were of huge value and the debate would have been the lesser without them. I also congratulate those noble Lords who managed to take part in two debates this afternoon and made very distinguished contributions to each. I was much moved by the idea of this being a picnic, and I was wondering what we could bring as presents for people to take away from the picnic after it is over. I am very glad that the Minister was able to provide us with something to take away—I will certainly regard it as an important contribution, as I know will many other noble Lords here—in his assurance that the Government have no intention to either repeal or amend the Human Rights Act.
I think that both the spokesman for the Opposition and the Minister also deserve to be congratulated on the way that they have tackled the issues before us in this debate. I agree with the Minister that there is a lot left to argue over, which will no doubt occur within this Chamber in the future. I do not think that there will be reference again to the days when I was a student so long ago in University College London, when I had the huge advantage of having the noble Baroness, Lady Flather, as a fellow student. I am bound to say, and know only too well, that she has weathered over the years so much better than I have.