Legal Systems: Rule of Law

Lord Marks of Henley-on-Thames Excerpts

Thursday 10th July 2014 Lords Chamber

[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.