Legal Systems: Rule of Law

Lord Lester of Herne Hill Excerpts

Thursday 10th July 2014 Lords Chamber

[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.