"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Sunday, 27 May 2012

Dear Diary ...

Published in the New Law Journal, vol 162, 25 May 2012, p 726

The Duke of Edinburgh is famous for his less-than-politically-correct remarks. Wincing as they often are, he seems to get away with it because he has otherwise been content to play a silent second fiddle to his spouse, who in turn has almost always studiously observed the requirement of her role to be seen as above the political fray, devoid of any revealed political opinions. 

By stark contrast, their eldest offspring, the Prince of Wales, seems rather taken with his own opinions and has rarely been shy about expressing them, whether on modern architecture, the environment or the Human Rights Act. In 2005 his propensity to speak out landed him in some bother when a disloyal subject leaked some of his private journals to the press.

The journals concerned his trip to Hong Kong in 1997, when that particular slice of the rump of the Empire was being returned to China in what was inevitably referred to as the Chinese Takeaway.

Continue reading here.

Thursday, 17 May 2012

Warner Bros v Nelson: a screen siren comes to court

I have been published in this week's New Law Journal (vol 176, 18 May 2012, p 690) on the civil action of Warner Bros v Mrs Ruth Nelson.  To her generation Mrs Nelson was one of the greatest film stars of all time.  To my generation I suppose her eyes are more famous than her films, and the picture above gives some clue as to why that might be.  But to every generation she was (and is) known by her childhood nickname followed by her maiden name: Bette Davis.

The article will appear here in due course.With thanks to Guy Skelton for reading a draft of the article and providing invaluable comments.

Saturday, 5 May 2012

Qatar Law Forum 2012 overview

For Halsbury's Law Exchange

I enjoyed the privilege over the weekend of attending the 2012 Qatar Law Forum, held in Doha. The theme of the conference was “The rule of law in a time of change”. The conference was attended by over 400 delegates from approximately 60 jurisdictions, including many leading figures from the legal profession in this country. Here are a few thoughts on some of the sessions I attended and the conference in general.

The first Qatari Law Forum, held in 2009, had focussed largely on the international financial crisis. Needles to say that crisis has still not been resolved, but a second international event gained much of the attention on this occasion, namely the Arab Spring. Delegates were present from many of the affected countries, including Egypt, Bahrain and Libya. Almost all took the revolutionary bull squarely by the horns. A robust consensus held that the causes of the Spring were corruption and an absence of human rights, including - but not limited to - the ability of ordinary citizens to participate in the political process. There was also a consensus that removing dictators was only a means to an end, and unless fundamental changes were made those who led and participated in the revolutions would resume their civil unrest.

As to the ongoing financial crisis, a specialist session on Islamic Finance suggested that Islamic banking offered an alternative model which had the attraction of being based firmly on ethics. It was countered that the Western banking system was not value-neutral, being based on notions such as freedom of contract, freedom of property and social responsibility, including liability for negligence and breach of contract. At this point in time, however, even the strongest defenders of Western law (of whom I count myself one) have to concede that one of the central factors behind the financial crisis was failure of regulation, and it behoves Western law makers to think laterally – and look to alternative models – when trying to formulate a system which might avoid a repeat. Whether that be Sharia law or something else is another question, but reshuffling the deck chairs on the vessel of old regulatory models may not suffice. On the other hand, the Islamic financial experts expressed a wish to find a way of creating more exotic banking products in a Sharia-compliant fashion.

Of course one of the most significant regulatory changes in the United Kingdom of late has been the new Bribery Act. This was discussed in the first session of the conference, chaired by Baroness Scotland, under the theme of international corruption and how it damages the rule of law. Here a stark obstacle was identified: how to find an internationally acceptable definition of the term “corruption”. From the floor Lord Scott was blunt and unequivocal: one man’s corruption is another man’s standard business practice, and it is hopeless to think that very different business cultures can ever be reconciled on that point. I have to say I fear he is correct, though other delegates were more optimistic and most seemed to think the nettle of an international definition had to be grasped however difficult.

Staying with the theme of corruption, the panellists were not so idealistic - or legalistic - as to assume that any form of corruption would be fatal to the rule of law. Low level instances of bribes here and there will probably not bring the system down. What is certainly damaging, however, is when the guardians of the rule of law are themselves corrupt. The obvious example is that of the judiciary: if judges are not conspicuously independent and fair-minded, there will be no confidence in their decisions and hence the legal system as a whole. The executive too is a key player in this regard: it has to respect and enforce judgments; an order without enforcement is building a castle not so much on sand as thin air.

Here too a note of realism was sounded. It is all very well demanding that the judiciary be independent and set the highest standards. But one delegate told of a Chief Justice in a developing country whose salary was roughly $35 per month. Another spoke of a senior judge who was a single mother of three but whose failed state had not paid her for nine months. Is it really so easy to criticise people in those conditions for taking money placed in front of them? Others told of judges whose personal details, and those of their families, were published in the press, with the clear inference that their enemies would know where to find them. Again, pious principles of legal philosophy might dissipate somewhat in those circumstances. It follows that integrity and independence are not enough. Proper remuneration and protection are required as well, along with ongoing training and resources.

At the Chief Justices’ panel it was asked what those holding such office could do to promote the rule of law internationally. Quite properly it was suggested that travelling, giving speeches and otherwise lending expertise should all be encouraged. My own modest contribution at this point was to argue that the best method was by the day job. The most important contribution any Chief Justice can set is to try cases – and equally importantly be seen to be trying cases - fairly and openly, irrespective of the wealth, political connections or other importance of the defendant.  By that means judges promote public respect for the legal profession and the rule of law.

To that end I tried to stress the importance of free speech and open justice. The former was the subject of the final plenary session, which was headed “Freedom of communication and expression in times of change”, and included HLE chairman Joshua Rozenberg on the panel. The panel rehearsed the familiar points about limits to free expression, the need for the media to act responsibly, and the debate in the UK presently taking place in the form of the Leveson inquiry. In the ensuing discussion Sir David Keene pointed out from the floor that in the age of the internet it may prove impossible to prevent publication of anything, even if a consensus exists that something should be suppressed (the identity of a victim of abuse, for example).

That is a point which I have made before, and I remain of the same view now. The very weapon identified by earlier speakers as an important part of the overthrow of dictators during the Arab Spring (who could not suppress evidence of better political systems elsewhere, nor communication between dissidents) might also undo legitimate constraints on freedom of expression in a free and democratic society.

In this regard, however, no-one could disagree with Lord Judge LCJ, who observed as a concluding remark in the Chief Justices’ session that no-one in the room was in a position to predict what would happen even five years hence in terms of technology.

A short summary of the conference can be found in the LexisNexis newsletter which was produced each day, and otherwise on the Conference website.

Friday, 4 May 2012

The ECHR and democratic legitimacy

Two interesting articles on the UK Human Rights Blog recently raised once again the question of the legitimacy of the European Court of Human Rights.

Both are thoughtful contributions and therefore welcome relief from a debate which at times descends into variations on Godwin’s law. On the one side argument often reduces to xenophobic insults about the impudence of Europe telling anyone else what to do. On the other side some lawyers seem to respond to criticism of the ECHR with the sort of arrogance that one associates with Latin American military dictatorships of years past, who insisted that they had specialist knowledge and experience that justified their undemocratic hold on power.

To begin with, it is worth reiterating that the Convention was drafted by English lawyers and that by and large it reflects the values of the common law as they had evolved over centuries. Moreover, for all the tabloid fodder, not all of Strasbourg’s decisions (or domestic decisions made pursuant to the Convention) offend majority public opinion by any means. In fact almost all applications from Britain fail to get past the admissibility stage, and of those which do only a handful attract media interest (raising a separate issue about the advice and funding behind the multitude of failed applications – perhaps a similar provision to the requirement of permission to appeal to the Court of Appeal could be introduced at the domestic level).

It might also be argued that incurring some uncertainty in our domestic law and living with the odd derisory decision is a price worth paying for all of Europe – including former Communist countries with a shocking history of governance in the past century – to be subject to a regime of rights and freedoms based substantially on British values. If Britain considers itself above decisions with which it happens to disagree, then the entire institution of Strasbourg will weakened and other countries with less regard for the rule of law will follow suit.

Yet there remains an objection which needs to be confronted, and which, incidentally, will not be answered (merely replicated) by a British Bill of Rights. Fundamental questions involving freedom of speech, freedom of religion, the right to life, the right to vote and so forth have come before the courts in recent years. Until the Convention was brought into domestic law, most of those arguments would have been held before and settled by Parliament. In those days the true guarantee of freedom in Westminster countries was usually said to be the regular ballot box rather than the judiciary.

Two questions follow: first, whether the Convention and the Strasbourg court have sufficient democratic legitimacy, and secondly, more generally, whether the courts are a better forum to determine hotly contested ethical, moral and religious questions.

As to the first question, the democratic authorisation of the European Court comes from the fact that it was Parliament who passed the Human Rights Act 1998 and thereby brought the Convention within the jurisdiction of the domestic courts. Parliament always retains the option of withdrawing, though there would be turbulent international and domestic political fallout if it ever did so.

It should also be remembered that tyrannous regimes have sometimes come to power through elections. Further, the rights of the majority are rarely threatened: Convention rights, it can be argued, are needed to protect the unpopular minority.

As to the second question, irrespective of whether one agrees with the answers they come up with, courts can only flesh out the broad detail of Convention rights slowly, as and when cases come before them, which leaves much uncertainty (uncertainty being an obvious and damaging blow to the rule of law) as well as handing significant power to the judges (“government of the people by the judges for the lawyers” went a saying when I was at law school).

Moreover, the Strasbourg court is seriously in need of reform. It is severely overburdened, with many thousands of applications outstanding. It is composed of one judge from each member state – meaning that tiny political enclaves make the same contribution as countries with enormous legal resources such as Germany and Britain. The appointment process of some member states’ judges is also questionable, as (consequently) are the qualifications of some judges. These points exist whether or not one supports the court all, and I would add that logically Strasbourg’s supporters should also be the strongest advocates for its reform.

There were other possibilities for bringing British law into line with the Convention whenever it fell short. A cross-party committee primarily composed of legal experts could have studied Strasbourg decisions and advised whenever domestic law needed to be altered, for example. This would have answered any question about democratic legitimacy since any substantive change would have had to go through Parliament.

In this regard readers might consider the Australian position. That country does not have a Bill of Rights, though in a series of five cases in the 1990s the Australian High Court controversially found an implied constitutional protection of freedom of political discourse, despite no precedent for any such right being found in the ninety years of the Constitution’s history to that point. Moreover, the Constitutional Committee of 1898 had specifically rejected a proposal to incorporate a US-style Bill of Rights in the constitution.

A national human rights consultation took place in Australia in 2008 - 2009, and recommended the introduction of a Human Rights Act. The government rejected the recommendation, but did introduce a 'human rights framework', which among other things changed the way in which legislation in the Commonwealth Parliament was scrutinised by reference to international human rights instruments.

Australia is anything but a tyranny compared with the vast majority of states past and present, so its experience merits consideration. But it may be – and it remains my own view - that the best step would be for Britain to remain subject to the ECHR, but advocate strongly for its reform to clear its backlog and improve the standard of appointments.

Note: see also this interesting contribution on the UK Constitutional Law Blog.