Episodes
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The challenge for the courts is making the most of new technologies and practices without losing sight of what worked in the past, a justice of the UK Supreme Court said yesterday.
In a lecture called Breathing Life into the Law: Achieving Access to Justice in the Modern State, Lady Rose of Colmworth said the best way of achieving this was a blend of creativity and conservatism.
“Like Moses and Jethro,” she said, “we must innovate without impairing the quality of justice being dispensed.”
Rose was delivering the Lionel Cohen lecture, which has been given annually at the Hebrew University of Jerusalem by a series of leading legal figures over the past 70 years. It was set up in honour of Lord Cohen of Walmer, the first Jewish law lord, who sat in the UK’s highest court from 1951 to 1960.
The lecture, sponsored by his family, is organised by the British Friends of the Hebrew University. It was well attended yesterday by members of the law faculty at the university’s Mount Scopus campus.
An edited text of Rose’s remarks will be published in due course. In the meantime, you can listen to the lecture as delivered by clicking the button above. You can also download the audio as a podcast.
* Note to readers: this is not the podcast I announced after the BBC decided to stop broadcasting Law in Action on Radio 4. Plans for that project are well advanced and I hope to announce more details at the end of June. The podcast itself will be launched in the autumn.
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Any move towards withdrawing from the European Convention on Human Rights (ECHR) would risk damaging the UK’s trading position, a former president of the human rights court argued this week.
Robert Spano, now an international business lawyer, was speaking to me on Tuesday evening at a public event sponsored by the law firm Gibson Dunn, where he is a partner.
Hours later, the Telegraph reported a claim by the former defence secretary Ben Wallace that the ECHR had become a threat to national security. His argument seems unconvincing, I say at the start of my column for this week’s Law Society Gazette. But most of the piece is devoted to reporting and analysing Spano’s comments.
The event on Tuesday was entertainingly introduced by Lord Falconer of Thornton, the former Labour lord chancellor who is also a partner at Gibson Dunn. He asked the first question.
I sent a recording of the interview to my paying subscribers on Wednesday morning, together with a summary of Spano’s comments. The recording is now available to all as a podcast, which you can download from this page and listen to in the normal way.
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Lord Pannick KC is undoubtedly the UK’s leading lawyer in his chosen field, public law. Perhaps best known for winning the Brexit and prorogation challenges that Gina Miller brought against the government in the Supreme Court, he is currently defending the government’s Rwanda asylum policy in the Court of Appeal while representing Boris Johnson in the Commons privileges committee.
He and I discussed these cases and much more at a fundraising event last Thursday for Support Through Court, a charity that helps people who face court alone to represent themselves to the best of their abilities. The event was introduced by Lord Dyson, a former master of the rolls, who also spoke at the end.
I published a video recording of the discussion on Friday but I thought it would be useful to make the recording available as a podcast that readers could download and enjoy at their leisure. Click the ⏵ symbol to start.
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The justice secretary Brandon Lewis said this afternoon he would defend judicial independence “to the hilt”. But, discussing reform of human rights, he stressed that parliament was sovereign.
Lewis was speaking at at a meeting arranged by the think tank Policy Exchange at the Conservative party conference in Birmingham.
You can listen to the lord chancellor’s remarks by clicking the button at the top of this page. I have edited a couple of the questions from the floor. The meeting was chaired by Lord Godson in a marquee that was far from soundproof.
Transcript
Here is a transcript, slightly edited for clarity, of what the justice secretary said. If anything seems unclear, please check the audio.
It’s a great pleasure to be here with Policy Exchange. As Dean [Godson] rightly outlined, I’ve had the honour of talking to people in Policy Exchange events over the years and everything from local government through my time at the Home Office, and as chairman of the party actually and, obviously, in Northern Ireland. And now as lord chancellor, it’s good to have an opportunity to talk to you a bit about what we’re looking at, and what the plans are as we move forward.
And yes, we do still wear robes as lord chancellor, as I found out on Thursday. Having started off thinking that maybe things have moved on, I found out at my swearing-in that you still wear robes and my 19-year-old daughter will eventually forgive me for putting on a wig and a pair of tights on Thursday, and then putting it on Instagram — which I will be going back to do again tomorrow because we have the opening of the legal year. So I'll be heading back to London for that before coming back.
Because I actually do think one of the things that we will focus on — and I'll talk a bit more about this later in the conference week — we have in our country something to be very proud of which is a world-leading legal profession. Legal services in this country actually are fundamental to everything we do across a wide range of areas.
And I think sometimes what some of us may think are occasionally antiquated and a bit odd — these ceremonies and services that we do — actually are really quite important, I think not only to remind the rest of all but ourselves about the history of our law and how it has evolved, and how it continues to evolve to reflect what we need in society. And that will continue as we go forward.
And that’s where we are, I think, when we start to look at human rights reform. It was our 2019 manifesto that specifically laid out that we will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We need to do that. And we need to be sure that we do that in a way that reflects our wish to reduce the ECHR’s influence in our system, whilst making sure we retain our other manifesto commitment that is hugely important, which is to remain a champion of collective security, the rule of law — which obviously I have a job to protect — as well as human rights, free trade, anti-corruption efforts, and a rules-based international system.
And we took more action on some of this just this week, particularly with regards to anti-corruption efforts with Putin’s regime and those who purport to support it.
There is a range of options for us as we go forward to explore in this area of human rights if we want to govern according to our manifesto pledge and remain absolutely true to what we promised to the people who voted for us in 2019. We do need to make sure that we are addressing, and dealing with, section 2 of the Human Rights Act — the obligation to take into account Strasbourg court jurisprudence — we need to give consideration to a tighter approach that limits creativity whilst encouraging our domestic courts to have the ability to diverge from Strasbourg case law more freely, that UK courts have primacy in and for UK law.
Now more widely, when we are interpreting human rights framework in the courts, we should always seek to prioritise protecting the public from convicted offenders during the term of their custodial sentence. That, to me — the protection of the public, and looking after victims — has to be key and at the heart of everything that we do in the MoJ.
But that also plays into a wider approach, and one that I intend to take as the justice secretary, which is focusing on, first and foremost, the safety and comfort of convicted offenders never ever being put over that of the safety of the public and of protecting victims.
Now, there are many changes to the human rights framework that will need to be considered both by government and wider parliament. And having been a government member of parliament during a period where the relationship between parliament and the courts has been strained from time to time, I know how important it is to make sure that if we want to take forward reform in this area, we get it right, so we deliver the outcome we actually want to achieve. It is important that we ensure that the courts recognise the supremacy in a democratic system of the decisions made by parliament.
That does not conflict with the principle of the independence the judiciary, which as lord chancellor I will defend to the absolute hilt. But we do need to be clear that parliament is sovereign. And if parliament has expressed a view through legislation, then the courts should always respect that view when implementing the law that has been passed. Now this is a complex area — to get that balance right — and it’s one that will require a lot of work in order to make sure that our proposals are [?] and it is a principle that we can all support.
The need to reduce the courts backlog is also something that has challenged a few justice secretaries before me as well. But due to the recent strike action, as well as coming out of the Covid pandemic, we’ve seen that backlog go back up and become more challenging. I want to make sure that, during my period of time as justice secretary, all possible avenues are being explored and considered, I want to be working with the judiciary — who are equally keen to see this backlog dealt with — to look at what more we can do to get that backlog back down, and ensure that we’re looking at every opportunity to do that.
I intend to put my department to work in exploring what can be done to also ensure that we curb the use of SLAPPs. These are strategic lawsuits against public participation. They are too often used by wealthy individuals to intimidate and silence the critics. And it’s not right that money can buy legal impunity in our system. We need to ensure that we have a system here, a system of human rights that doesn’t create or give cover for cancel culture. We need to do everything we can to protect freedom of speech, even when it can be really, really annoying.
We can’t allow people to claim their human rights are being infringed because they disagree with us. Democracy is about debate. Democracy happens because of debate. Debate means having that opportunity to say what you believe, to make a case for it to argue for it. We all have a duty to be aware that what we say matters. So be aware that when we speak, we are talking to people and that will have an impact. We need to be free to have that debate and that conversation.
We’re not talking about, in this context, protecting terrorists from inciting hatred —which must always be something we have the legal ability to deal with. But we do need to make sure that people in everyday life and in public life can have their debates freely, and have those debates openly and properly. And if that means occasionally the odd one of us as a politician gets a bit offended and needs to fight our own corner, that's what democracy is about. And that’s worth defending. As we look at the human rights and freedom to do that, as we move forward.
Questions
My name is Grace DaCosta. I'm from Quakers in Britain. And I was wondering what was happening with the Bill of Rights Bill, whether that will be brought back or whether there'll be other legislation to replace it.
We are looking at a range of things from what would have been in the Bill of Rights Bill, which we’re not bringing forward at the moment. What we are looking at is, what is the right piece of legislation to bring forward some of the measures that we wanted to deal with, for example, I’ve just been talking, at the end of my few words there, freedom of speech, strategic lawsuits against public participation, things like that, and how we do that. What’s the best, speediest way of dealing with that? I know a lot of people and we as a government are determined to make sure we are dealing with the issues that can help us deal with the issues around illegal immigration. I’m working closely with the Home Secretary to ensure that we can put together legislation that deals with that. So those key tenets we wanted to deal with we will deal with, but we’ll probably do it in different pieces of legislation.
Chris McCain from the Press Association. I just wanted to ask about — you mentioned the strike action. Obviously one of the major complaints in the Criminal Bar Association is about legal aid and money. In the context where we have a Treasury looking to cut funding, will you be pushing to protect and indeed increase funding for legal aid?
Obviously one of the one of the key — or probably the number one acute issues on my desk on coming into office has been dealing with the bar strike. They will be going to ballot next week. I am hopeful that they will look at the — I’m confident they will look at the proposals carefully. I’m hopeful that they will look at them positively and vote and that we will see an end to the strike. It’s a comprehensive package that deals with the issues that need to be dealt with.
So I’m hopeful we will deal with that which will help move things forward and actually puts the whole structure particularly for the junior bar in a very different place, in terms of covering off some of the issues and giving payment there for section 28, which I want to see more of, to deal with RASSO cases, rape and serious sexual assault cases, and also for paperwork and wasted work, which has been an issue I know, for the bar for a very long time.
Wider issues around legal aid: we’re not at the point of having the future legal aid budget looked at yet but at the moment, as I say, I’m very keen to ensure that we have a judiciary that is able to work — I want to make sure we’ve got a judiciary and a bar that's able to work in a good environment as well. One of the issues around dealing with a court backlog will also be making sure that all of our courts can function properly. And we are blessed in this country with great teams who work across those courts doing the best they can to keep them functioning, and I want to make sure they’ve got the support that they need.
I can just ask a question that’s just come in on WhatsApp from Rajiv Shah, formerly Number 10 constitution spad. So does the Lord Chancellor agree that it is important to ensure that our domestic courts cannot gold-plate the ECHR and go beyond Strasbourg?
Obviously I first of all, as the lord chancellor will reiterate I do believe absolutely in the independence of the judiciary. So I will respect and protect their independence. But one of the things I said in my opening remarks, is I want to make sure that our judiciary are clear of a couple of things. One is that parliament is sovereign and if parliament passes a law, our judiciary are delivering on that and respecting that, but also that in UK law, UK courts have primacy. And if there is a reflection from Strasbourg, it’s a matter for the UK courts how they’re interpret it.
What would you say to those who are concerned about implications these changes could have for our standing internationally and also in holding other countries accountable for human rights?
Internationally, I think we are in a very, very strong place; our legal system is respected around the world. We are number two after the US in the world, number one in Europe for legal services. I think as we move forward, there’s an opportunity for us to grow that sector. It’s something I’m very, very interested in, very keen to, to work on. I mentioned this in my speech at the swearing-in ceremony the other day, with crypto and blockchain and things like that: there’s there's big opportunities for us. That is fundamentally, you are right, built on our international reputation as a centre for law and the rule of law. But the rule of law is what recognises the sovereignty of parliament. So I think it is absolutely in line with our international standard. That parliaments supremacy is there. That is what our democracy is founded on. I think without that our democracy suffers.
Question about consolidation of legislation
What we’re doing is working through all of the issues that were being considered for the Bill of Rights, looking at how we, which of those we take forward, and in which way we take them forward through different pieces of legislation, whether it’s through Ministry of Justice legislation, or potentially through Home Office legislation, etc, over the next period, whether it’s this session or the next session.
It always sounds very simple to bring together lots of complicated legislation. I did try to look to do a similar thing and kind of did this with planning law, actually, while I was in what was then DCLG. It is never as simple as it sounds, because the way these things interact, and actually, when you've got limited parliamentary time, using parliamentary time to repeat legislation you’ve already got but to put it in a different format isn’t a good use of parliamentary time. So I have to say I’m not somebody is going to be proposing to the prime minister that while we’ve got legislation, and I’ve got legislation I want to look at, to do more to help victims and keep society safe, to bring out legislation that basically repeats legislation we’ve already got in a different format isn’t a good use of parliamentary time. But you never say never to look at how you can do things better and more efficiently in the future.
Benjamin Ward, I'm a secondary school teacher of Religious Studies. The Human Rights Act at the moment. I think article 2 of protocol 1 includes the right to education, but also the right for parents to have their religious and philosophical beliefs respected in the education of their children. I think there are some within the party who will perhaps have more intolerant voices about ensuring that religious studies in schools is objective and plural.
As I say I, I fundamentally believe in people’s right to offend me. And I appreciate, hopefully, with religious issues, that’s not generally how people take things forward but you know, I have a lot of sympathy with some of the debates. I remember seeing a piece a few years ago from Rowan Atkinson, actually — I thought was brilliantly written — around the right to be offended. You know, our society develops and evolves and grows, because we have these debates. And there are things we do today that are so different to what happened in the past, because either our tolerance has changed in that we're more tolerant of some things, we are less tolerant of others.
And that is evolution, that happens through debate. And if you restrict people’s ability to debate and you have a cancel culture, then things don't move on. And they become trapped in one person’s view of the world, which I think is very, very dangerous. So you know, there is always a, there’s a duty on all of us in public roles — and obviously teachers particularly have this responsibility with young people — to make sure that there’s balance and they’ve got an opportunity to understand what the options are. But that’s a duty we have as individuals or as professionals to deliver on our professional duty. I think it’s right that we keep the freedom of speech right there for people to be able to argue for what they believe in.
I was wondering if you’d be looking into the Communications Act, and specifically section 127, which is currently under a lot of controversy about the fact that it prohibits grossly controversial speech, and therefore means that there isn’t a legal right to offend.
In regards to freedom of speech, we have recently seen the Free Speech Union have their PayPal accounts removed. Do you think that you do for this for see the new legislation giving a positive right to companies to individuals to challenge that kind of thing in the future, rather than have to rely on contract law?
I’m aware that there is legislation which means that police can’t go on strike. Do you think that there’s a case for expanding that to the legal profession, on the argument of dangerous criminals not being prosecuted, and therefore, obviously, not immediately, but in an extreme situation, increasing the legislation or increasing the scope of it, so that barristers wouldn’t be allowed to strike as well under extreme circumstances?
I’m looking at a whole range of things around how we ensure we can do this and deliver this in a way that is, as I say, it’s for me, it's looking very, very carefully, what is the outcome we want to achieve and how do we best achieve that? That means being quite careful with what we do not getting too caught up in what sounds good on first appraisal, but actually working through very methodically, exactly what we want to achieve so you’ll have to bewas a little bit longer, but making sure we can give that space to people is very key, which plays very well into the point about the free speech union. And I thought it was very disappointing actually to see that kind of people having to work through in that contractual way using contract law.
There is a real issue sometimes when we see — and I know this from previous jobs when I was in the Home Office as well — the frustration around seeing certain things online that companies can be quite slow. They’re getting much better now, but they have been historically very, very slow at dealing with. And it’s hard to explain to somebody why something like the Free Speech union is being taken off PayPal when you see things that are encouraging suicide and terrorism on wide social media from big, multinational global companies. So I think we need to make sure that we're dealing with that as a priority rather than people’s access to freedom of speech.
In terms of your point about the prime minister, having been chairman of the Conservative Party, I know very well not to step on a chair of the Conservative Party’s toes, but I'm sure Jake won't mind me saying, the best thing we can do in the Conservative Party is make sure we stick with and back our leader. We've got to make sure that we are focused on that for delivering people that's and it's not an issue for parliament, actually, it's the way the party rules work.
And in terms of the strikes that I’ve always been personally, very much personally, I think, you know, with most of our emergency services do not and cannot strike. And I know from having gone through the Fire Brigades Union strike, some of our colleagues in the Armed Forces always found it slightly odd that they were having to come back from Afghanistan on leave and while they’re on leave cover for firefighters who are going on strike over their pension age and things like that. So there is a an issue there. But some parts of sectors can have some can’t.
I think the bar is quite different because what we some people don’t often realise is all the barristers actually self-employed. And even the Criminal Bar Association, which is often referred to as a union, isn’t a union in that strictest sense, because all of its members are self-employed. So we’ve been having discussions with the Criminal Bar Association, they will be putting this ballot to members next week. As I say, I hope they’ll vote positively but, it is true, we do need to ensure that we’re not going through this kind of thing every four years, and that we’ve got a structure that means it can continue to deliver for people in a way that ensures that victims can see their access to justice is not being slowed down by this kind of action.
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This isn’t a political blog so I’m not going to make any tired references to the cover-up being worse than the crime or history repeating itself as farce. I realise that the current threat from the Omicron variant is no laughing matter. But that, of course, is why it is so important for the prime minister and his government to maintain the confidence of the British people.
The leak of a rehearsal on 22 December for the No 10 press conferences that were subsequently abandoned has persuaded most people that there was indeed some sort of party in Downing Street on 18 December, at a time when London was in a tier 3 lockdown. That meant gatherings of two or more people in an indoor space were prohibited, subject to exceptions. Did any of those exceptions apply to the party?
That was what I was asked in a live interview on Radio 4’s PM programme two days ago, on 6 December. You can hear the item by clicking on the audio link at the top of this page.
The story was presented by Evan Davis in a deliberately lighthearted way. That was the programme’s editorial choice but one I thought was entirely appropriate.
How could Downing Street defend itself, Evan wanted to know. The government had a number of options, I replied, and it couldn’t be blamed for not showing its hand at this stage.
The first was that there are exceptions in the regulations for what are called permitted organised gatherings. These cover meetings on the premises of a public body. The working areas of Downing Street must surely come within that definition.
My next suggestion was that the event might have been one of the gatherings necessary for certain purposes that are exempted under the regulations. These include a gathering that is reasonably necessary for work purposes.
Evan appeared unconvinced and asked me for my clincher. This had been suggested earlier by Adam Wagner, the barrister who has made it his job to understand the regulations:
The Public Health (Control of Diseases) Act 1984 is the act of parliament under which all these regulations were made.
Section 73 of the act deals with Crown property. Subsection (4)(d) allows a government department to agree with the local authority that a specified and relevant provision in the act should apply to that property.
I take that to mean that the government department responsible for 10 Downing Street — the Cabinet Office, I suppose — could agree with Westminster City Council that the lockdown restrictions would apply on its premises. Assuming no such agreement had been made — and I would be astounded if it had — then government premises are exempt from the regulations.
One rule for them and another for us? Not really, I told Evan: you can’t expect ministers and officials to run the country from home. I was less willing to defend the suggestion that other government staff were invited to visit No 10 and join the party.
Finally, I explained that, under section 64A of the 1984 act, a prosecutor has six months to bring a prosecution “beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor's knowledge”. There is an upper limit of three years from the date of the alleged offence.
The barrister Matthew Scott published a detailed blog shortly after my broadcast, which he had clearly been working on for much of the day. He concluded:
If the party was confined to the government rooms and offices in the “official” parts of No 10, it probably did not breach the criminal law, even though it was in flagrant breach of its spirit, as well as of the official advice and guidance, much of it emanating from the prime minister himself.
I think that sums it up rather well.
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Better still, as the festive season is upon us:
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Baroness Hale spoke yesterday of her “huge admiration” for Israel, a country she has visited at least half a dozen times for judicial exchanges and academic seminars. Her unscripted remarks — which you can listen to by clicking the podcast symbol above — were made after the former president of the UK Supreme Court was made an honorary doctor of philosophy by Bar-Ilan University, near Tel Aviv, for her “outstanding efforts on behalf of women and minorities” and her “dedication to the protection of democracy and basic human rights”.
Because of Covid travel restrictions, Hale’s PhD (hon) was awarded to her at a small ceremony in a London garden. It was hosted by Romie Tager QC, on behalf of the university. Professor Ruth Halperin-Kaddari, founding director of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan university law faculty, sent a message of support.
As well as paying tribute to what she described as the deep intellectual tradition of Israeli lawyers, Hale spoke of the three Abrahamic faiths:
Those three religions have more in common than they have separating them — although there are important things that separate them. But one are the things that they have in common is a problem with women.
In a recent conference organised by Halperin-Kaddari, Hale and other speakers looked for what she called “sensible, sensitive ways” of addressing that problem.
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BBC Radio Scotland ran an interview with me this morning (recorded on Friday) about threats to the rule of law.
Isobel Fraser asked about references to lefty lawyers by the prime minister and the home secretary. We also discussed the review of judicial review and the UK Internal Market Bill.
Joanna Cherry QC was kind enough to mention it on Twitter and I thought listeners outside Scotland might like to hear the interview, which I have very slightly edited.
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Stephanie Hayward, a barrister specialising in criminal law, interviewed me live yesterday for her Instagram channel @behindthegownbarristers. We spoke mainly about my new book, Enemies of the People?
You can watch the entire interview here but I thought it would be useful to post this (slightly edited) audio version so that you can also listen to it as a podcast.
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