Legal Systems: Rule of Law

Lord Woolf Excerpts

Thursday 10th July 2014 Lords Chamber

Moved by

[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.

--- Later in 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.

Motion agreed.