Legal Systems: Rule of Law

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 10th July 2014 Lords Chamber

[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.