Legal Systems: Rule of Law

Lord Beecham Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Beecham (Lab)]

My Lords, of course, I join others in your Lordships’ House in congratulating the noble and learned Lord, Lord Woolf, and thanking him for giving us the opportunity of an important and very well informed debate.

The reputation of our English legal system stands as high as it does precisely because of the wisdom, expertise and independence of our judiciary, as exemplified by the contributions to this debate of noble and learned Lords who have played such an important part in the development of our jurisprudence and, indeed, to the deliberations of this House. It is a matter of deep regret that in a number of respects that reputation is under threat from government policies reflecting a growing indifference—perhaps even hostility—to some of the cardinal principles that lie at its heart.

As we are frequently reminded, next year sees the 800th anniversary of the sealing of Magna Carta—a document that has acquired an iconic, not to say almost mythical resonance as a charter of liberties. Only three clauses survive unchanged over the centuries, the most important perhaps being the pledge to,

“sell to no man … either justice or right”.

I shall refer later to the issue of whether and to what extent the positive version of the provision, which might be encapsulated in a pledge to ensure access to justice or right, is currently under threat. I am grateful to the noble and learned Lord, Lord Judge, for reminding us that one of the provisions was to render the king subject to law.

In his book The Pursuit of Justice, the noble and learned Lord, Lord Woolf, described Magna Carta as,

“a symbol for the values of the common law, remarkable because it is such an historical statement of the fundamental principles of the rule of law”.

As he said in the book and again today, it is one adopted by other, later jurisdictions from the USA to India. Lord Bingham, who alas is no longer with us, records in The Rule of Law that Magna Carta was cited in no fewer than 60 United States Supreme Court judgments between 1940 and 1990. I cannot resist quoting the memorable line of Tony Hancock’s jury foreman in a parody of “Twelve Angry Men”:

“Magna Carta … Did she die in vain?”.

However, the common law, powerful and flexible as it has been, and instrumental alongside the independence and integrity of our judiciary in earning the admiration of other countries and their jurists, does not stand alone, nor is it immune from threats which seem to be growing in number and intensity. We have debated many times in recent years and months the vexed question of access to justice, particularly in the light of the steady and continuing undermining of judicial review—referred to by a number of noble Lords today, including the noble Lords, Lord Lester and Lord Marks—which we will be debating in the Criminal Justice and Courts Bill, and the erosion of the availability of legal aid and advice in the courts and tribunal system. Whole swathes of rights and remedies are now beyond the reach of many of our citizens, unless they have the means to pay for legal services, or the good fortune to obtain advice and support from an increasingly overloaded and underresourced voluntary sector.

On 21 July we will be debating the latest road block to be placed on the road to justice—the residence test for legal aid—set to deprive even children, admittedly only those over the age of 12 months, of support if they have been resident for less than a year. It might be thought that that is another example of the politics of the dog whistle, which in the view of the Joint Committee on Human Rights is in flagrant violation of the European Convention on Human Rights. That convention is very much the United Kingdom’s contribution to the post-war construction of a democratic Europe in which the rule of law has become the cornerstone of civic and judicial structures, and we all owe a Conservative politician who became the Lord Chancellor, Sir David Maxwell Fyfe and later Viscount Kilmuir, an enormous debt for what became in effect the Magna Carta of the 20th century. Yet, increasingly, a disturbing trend has emerged in which human rights are devalued and the role of the convention is disparaged in the very country which did so much to advance them. As the noble and learned Lord, Lord Woolf, pointed out, if England is to be true to its heritage, which is a commitment to the rule of law, it has to be, and has to be seen to be, a champion of human rights. Making the human rights convention part of our domestic law has proved a great success. He observed that it embodies very much the same values that have been recognised by the common law for centuries. And to those who denigrate the convention, the late Lord Bingham asked, again in The Rule of Law, which of the rights would be discarded.

But rather than cherish these rights, the Government see in our judicial system a commodity to be traded. Access to justice for hundreds of thousands of citizens a year is made hugely more difficult while foreign litigants are rightly encouraged to use our skilled lawyers and our courts to resolve their differences. Justice is in danger of being seen primarily as a commodity and thus as a contributor to our balance of payments, welcome of course though that contribution is, and a tribute as it is to the skill and experience of our practising lawyers and the judiciary. However, while these litigants—Russian oligarchs and others—enjoy a Rolls-Royce service, our citizens are having to contend with an increasingly inefficient and ineffective system. The problems of criminal law practitioners and the future of the criminal Bar in particular have been referred to frequently, and notably today by the noble and learned Lord, Lord Woolf. We have the chaos in the recently reorganised and fragmented probation service, and in our overcrowded prisons in which we house, after a fashion, more people per head of population than any other EU country and with a lower age of criminal responsibility. These are conditions which are little short of scandalous.

The situation in our civil courts is also very worrying. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, there is growing concern over the number of litigants in person, especially in the field of family law. Last week I attended the opening of a personal support unit offering non-legal support to litigants in person at Newcastle Crown Court. At that event Lord Justice Briggs confirmed that the issue of delays and costs of unrepresented litigants in person was becoming a serious matter, as the noble and learned Baroness reminded us in the debate.

These problems are also affecting other parts of the civil justice system. I am indebted to Patrick Allen from the leading solicitors’ firm Hodge Jones & Allen for an update on some other aspects. It appears that papers can be lodged in a county court, date-stamped and sent to Salford, because that is where all matters now have to be routed, where they will again be date-stamped but not necessarily issued before deadlines have expired, thereby creating the risk of a case being out of time unless the High Court extends it. The savings to be engendered by this new procedure, all of £3 million to £4 million a year, are not even going to be recycled into the system, as the Civil Justice Committee of the Law Society has been told. The promised but belated investment in IT, some £75 million over five years, is to be prioritised for the commercial court. We can understand the incentive for doing that, but equally if all the resources go in that direction there will be little prospect of improving matters for domestic litigants.

In addition, the problems of the decision in the Mitchell case, which imposed what many think were disproportionate sanctions for failure to meet rigid deadlines under the Jackson rules, has led to all co-operation between parties being withdrawn. I understand that the position is to be reviewed, and I am sure that the profession more generally will be awaiting the outcome with great interest. It seems that, as the noble Lord, Lord Marks, rightly referred to, the system of arbitration is being developed. Apparently the new and very effective approach of an alternative arbitration system has been developed by a leading Silk, Andrew Ritchie QC, which will be cheaper, quicker, and more collaborative. It is to be hoped that that will have some impact.

The frustration experienced in the civil and criminal courts also extends to the magistracy, where local justice is perceived as under threat from court closures, large benches and more full-time district judges. The system of which we have been so justly proud, and which other jurisdictions have so often sought to emulate, is under threat as never before. This threat is not from a medieval monarch, but from an obtuse ministry which seems prepared only to pay lip service to the tradition of centuries and the adjustments required to reflect and cater for changing needs in our evolving society. The question at next year’s celebration will not be:

“Magna Carta … Did she die in vain?”,

but “Magna Carta—does its spirit live on?”. If not, where stands the reputation of our much admired legal system?