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Tag Archives: Rule of law

Jeremy Wright’s rule of law: Justice shall not be sold – unless the price is right

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Dicey? Bingham? Or perhaps you prefer the Wrightean doctrine of the Rule of Law as it operates in the UK? For Jeremy Wright (the Attorney General for those who’ve forgotten – or perhaps never knew) has given us his thoughts on this complex and contested legal principle.

Generally “the rule of law” might be boiled down to a simple phrase: No one is above the law – even the Government. This though, is not the quite message Mr Wright wishes to get across. His speech “on the UK’s long commitment to the Rule of Law” was delivered at the London Law Expo in the City of London. The Expo is a sort of legal/business fest with, this year, Dragons’ Den man James Caan as keynote speaker. Wright’s intended audience, therefore, was the business community – specifically the international business community. What excites Wright is less Britain’s commitment to the rule of law, forged through revolts and rebellions and the slow painful birth of a democratic society. No, what excites him is this: that

“the numbers show just how successful the legal services sector has been: in 2012 it was worth over £20 billion, or 1.5% of UK GDP and contributed some £4 billion in export value. There were over 300,000 people employed in our legal services sector with over 200 foreign law firms operating in London and elsewhere in the country”.

Britain, for these reasons, is not just a place to do business. It is a place to do law. So the point of  the rule of law is: it’s good for business. “Our long commitment to the rule of law I believe, is of central importance to the British economy”. For Wright has very little interests in the philosophy or practice of the rule of law; rather he is concerned to established Britain’s (or perhaps only London’s) unique selling point: “All companies know that they will be judged by clear rules applied in accordance with the law.” The rest of the speech is a promotion of UK plc’s legal services. Somehow he even manages to spin the Libor scandal as a “good” story: Read the rest of this entry

We need a judicial review into who’s killing JR

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Here’s a riddle wrapped up in a paradox: could judges using the power of judicial review strike down David Cameron’s attempts to curb the use of judicial review?

The British Prime Minister has complained at people exercising their right to hold the executive to account. He wants to “reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting”.

Now let us remind ourselves of the chilling threat issued by Baron Steyn, of Swafield in the County of Norfolk. In R (Jackson) v Attorney General (House of Lords case 2006) he said on the supremacy of Parliament:

The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”

He is saying that if Parliament sought to abolish judicial review, courts would have to defy Parliament even though Parliament is sovereign. The rationale for his position is that there exists in Britain the rule of law. You know the one: the rule that says the Government is subject to the law, just like everyone else. The one the Government, and particularly the Prime Minister, David Cameron, keeps forgetting.

Read the rest of this entry

David Cameron, Sharon Shoesmith and the rule of law

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There is a breakdown in the rule of law in Britain – and the government is at the heart of it.

The latest evidence is in the government’s response to the Sharon Shoesmith Baby P case. David Cameron, the prime minister, is ready to throw good money after bad to challenge the Court of Appeal finding that the former Haringey council director of children’s services was sacked unlawfully at the insistence of Labour children’s minister Ed Balls.

The case has already cost £1m, but the money is neither here nor there; for Cameron it is a matter of principle – the principle that the government should be above the law.

He announced there would be an appeal to the Supreme Court because ministers want to uphold the principle that they – rather than the courts, through judicial review – should be responsible for their decisions. “It does seem to me important that governments are able to manage their organisations and provide accountability when things go wrong,” he said.

It is, apparently, a constitutional issue about ministers’ decisions being overturned by judges – on the face of it, one would have thought, an essential requirement if Britain is to be governed by the rule of law.

Unfortunately Cameron’s understanding of the idea of the rule of law is rather simplistic. He thinks Parliament is supreme so judges shouldn’t keep interfering with it. And since he’s the boss of Parliament, he must surely be the most supreme of all.

This was the prime minister who claimed the London university fees rioting was an example of a breakdown in the rule of law. He wasn’t talking about police kettling peaceful demonstrators or arresting people without charging them. He was talking about the rioters. A temporary and geographically limited breakdown in law and order perhaps, but a collapse in the rule of law?

So let us clarify for him what the rule of law is. This is the view of 19th century jurist AV Dicey: No one should be punishable except for a distinct breach of law established in the ordinary legal manner before courts of the land; nobody is above the law and everybody is subject to the ordinary law whatever his rank or condition; anyone may go to the law courts to remedy breaches in rights and liberties.

Dicey’s principles on the rule of law in the Law and the Constitution, 1885

“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law, whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”

This raises many questions but is a good starting point for those like Cameron who don’t have much of a grasp on the basic theory. Take this for example: before the royal wedding he felt there were too many pen pushers and local authority busybodies demanding vast amounts of paperwork, health and safety checks and expensive insurance for street parties. His response?

Let me put it like this. I am the prime minister, and I am telling you if you want to have a street party, you go ahead and have one.”

His clear view is that the will of the prime minister attached to a populist cause trumps the law and all the processes in place to ensure the law is followed. Street party organizers had permission from the highest authority in the land to ignore the law since the law was being unreasonably enforced by a bunch of bureaucrats.

Similarly with the Madeleine McCann case. The police, according to the classic view of the separation of powers, are independent from government. Yet Cameron has directed Scotland Yard to put millions of pounds of public money into further investigating the disappearance of the little girl, prompting Lord Harris to accuse him of driving a coach and horses through police operational independence.

Of course, Cameron only sent a letter. But the prime ministerial crest and the Downing Street postcode on the envelope would have ensured that it didn’t stay long in the Met’s pending tray.

In the Shoesmith case, Cameron’s objection is to a judicial review, the process whereby courts can examine the procedures of administrative bodies, including the government, to test their legality. The judges do not toss aside laws made by Parliament; they do not substitute their judgment for that of the minister on matters such as Shoesmith’s competence or culpability in the Baby P case. They simply examine whether the procedures used to arrive at the minister’s decision were correct and hence whether the decision was fair.

Judicial review became more accessible since reforms in the 1970s to allow ordinary people to, in Diceyan terms, remedy breaches of their rights and liberties. This is rather like that other Tory bugbear, the Human Rights Act. Cameron believes those rights and liberties are sufficiently protected by the fact that ministers are “accountable” – to Cameron himself.

When ministers have spread a bit more poison about unaccountable judges standing in the way of the democratically elected government, we may expect to see proposals for a “reform” of the way the judiciary is appointed. It won’t be difficult to undermine the Judicial Appointments Commission set up in 2006 as “an important step towards strengthening the drive to officially enshrine judicial independence in law, enhancing accountability and ensuring greater public confidence”. It has not done a good job in promoting diversity, it is extremely bureaucratic and unwieldy. But the real agenda will be to swing the balance of power back towards the Supreme Leader.

Note: The Supreme Court has now rejected leave to appeal in the Sharon Shoesmith case (2 August 2011)
Also as predicted above, the Ministry of Justice has now (November 2011) made its proposals to give the government more say in judicial appointments, discussed here

For a more considered look at the rule of law see the Thinking Legally blog: Bingham’s rule of law: Outdated? Utopian?

Lord Bingham: the rule of law or bending the rule of law?

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The death of Lord Bingham, the former senior Law Lord (senior appeal judge in what is now the UK Supreme Court), silences a significant voice on the issue of how far incursions into human rights by the government can be justified by the “war on terror”.

Lord Bingham’s was a committed but moderate view which led him, perhaps unfortunately, to a sense that the judiciary must in a democracy with a sovereign parliament, craft a compromise on human rights with the political sphere, the legislature and the executive. His two judgments in the linked cases commonly known as “A v Home Secretary”, one on torture and one on detention without trial, bear witness to such a disturbing compromise. The torture case allows the possibility of people being detained without trial on torture evidence. The detention case judgment balked at simply declaring detention without trial wrong and refused to deal with whether there truly was an emergency in post-9/11 Britain sufficient to justify such detention.

While the cases were based on classic, text book subject matter regarding the rule of law, the use of torture and detention without trial, and Bingham’s rulings did not favour the government, his judgments nevertheless left open wide areas within which the executive may act apparently contrary to those principles.

Take the torture case, (reported as A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71) which hinged on the use that could be put to torture evidence gathered abroad without the connivance of British authorities. Put briefly, Bingham said that such evidence could not be admitted in a court of law, including in the tribunal set up to hear appeals against arrest and detention of foreign terror suspects, the Special Immigration Appeals Commission (SIAC). However, the authorities could act on such evidence if they came across it – they could arrest individuals on the basis of information got by torture. He says (at paragraph 47):

“I am prepared to accept … that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.”

Article 3 relates to torture, Articles 5 and 6 to detention and trial. Lord Bingham is saying security services are wholly free to act upon third-party foreign torture evidence to arrest and detain. This might seem reasonable if the security services could make their arrests, question the detainees and find admissible evidence for a trial. Unfortunately several appellants in the case were being held without trial (subject to an indefinitely pending deportation). On the face of it, the government lost the case since it wished to reserve the right to offer such evidence to courts. But Bingham’s subtle distinction not only did not help the appellants but it opened a wide area of operation for the security services to flout human rights. Read the rest of this entry

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