10 June 2011
Lord McNally
Minister of Justice
Lincoln
Cathedral Magna Carta
Lecture
I was extremely nervous about the thought of me, a humble
politician speaking in one of our great Cathedrals, but I note that the
Archbishop of Canterbury has recently occupied one of our best-known
political pulpits, so perhaps tonight is fair exchange.
I promise however, to resist any mention of “turbulent
priests” in my remarks this evening.
On 25 May I had the great honour to be in
Westminster Hall to hear the address to both Houses of Parliament by
President Obama.
The President opened his speech with these
words:
“I am told that the last three speakers
here have been the Pope, Her Majesty the Queen and Nelson Mandela – which is
either a very high bar or the beginning of a very funny joke.”
My task tonight is not of Obama
proportions. Nevertheless in
giving this lecture tonight I follow in the footsteps of Sir Robert
Worcester, Baroness Butler-Sloss, Frank Field MP, and Terry Waite.
They provide a daunting enough bar for me to clear.
I mention the Obama Speech for two reasons.
First it is always useful when making a speech to drop a few names
early on. I think getting Barack
Obama, the Pope, the Queen and Nelson Mandela into the first paragraph
fulfils that requirement.
My second reason is more pertinent to the
theme of my lecture tonight. After the
introductory pleasantries the first serious point the President made was
this:
“Our relationship is special because of the
values and beliefs that have united our people throughout the ages.
Centuries ago, when kings, emperors, and warlords reigned over much
of the world, it was the English who first spelled out the rights and
liberties of man in Magna Carta.”
Pause and think a moment.
Here was the President of the United States giving one of the
defining speeches of his Presidency about human rights and the rule of law,
and his very first point of reference is Magna Carta.
When Eleanor Roosevelt launched the UN
Universal Declaration of Human Rights sixty years ago she described the
Declaration as “A Magna Carta for all mankind” and the world needed no
translation or explanation of what she meant.
The reason why Magna Carta has an
importance beyond what it actually says is given by the late and much missed
Lord Bingham in his book “The Rule of Law”:
He wrote “The significance of Magna Carta
lay not only what it actually said, but, perhaps to an even greater extent,
in what later generations claimed and believed it had said.
Sometimes the myth is more important than the actuality.”
And there is no doubt that both in myth and
reality Magna Carta still carries powerful influence when we debate and
decide on contemporary issues.
That is not to say that the reality is not stirring
enough. As Lord Bingham said,
“Even in translation the terms of chapters 39 and 40 have a power to make
the blood race:
39. No free
man shall be seized or imprisoned or stripped of his rights or possessions,
or outlawed or exiled, or deprived of his standing in any other way, nor
will we proceed with force against him, or send others to do so, except by
the lawful judgement of his equals or by the law of the land.
40.
To
no one will we sell, to no-one deny or delay right
or justice.
Stirring stuff indeed.
I note, however, that Lord Bingham went on to say:
“These are words which should be inscribed on the
stationery of the Ministry of Justice and the Home Office, in place of the
rather vapid slogans which their letters now carry.”
However, I speak to you tonight not only in my capacity
as Minister of State for Justice; but also as a Baron.
As such I like to think that my boys did well at
Runnymede. What the Barons did
was more than simply assert their own narrow personal or class interests
against a rather nasty king. By
accident or design they tapped into a concept of governance based on the
rule of law which has become the rallying point for every advance in our
liberties in the last 800 years.
To return to the Obama Speech. He quoted Winston Church:
“Magna Carta, the Bill of Rights, Habeas Corpus, trial by
jury and the English Common Law find their most famous expression in the
American Declaration of Independence.”
They laid the foundations for the rule of law in this
country, and set a marker on the importance of the rule of law for the whole
world to follow- which it does to this day. Whenever we face great
challenges, and whenever we want to test out our contemporary responses, we
turn to the spirit of Magna Carta to renew our belief in the rule of law.
At such times, when we face hard cases and difficult
decisions, I am reminded of the moment in “A Man for All Seasons” when Sir
Thomas More’s future son-in-law, William Roper, questions whether the law
should apply to everyone in all circumstances.
More turns to him and says: ”This country is planted
thick with laws from coast to coast … but if you start to chop down the
trees of law, where will you shelter when the wind of tyranny blows?”
I believe passionately in the rule of law, and, to again
quote Lord Bingham: “even the supreme power in the State must be subject to
certain over-riding rules.”
Every day, in my present job, I have to make judgements
which go beyond simply applying the strict letter of the law:
What degree of force should a householder be able to
employ in defence of his or her property?
How do we balance the right to free speech with the right
to privacy?
What is the balance in sentencing policy between retribution and
rehabilitation?
Do judges have the right to criticise Parliamentarians
and vice versa?
In applying the rule of law we cannot simply be like the
character in “Little Britain” whose response to every question is “Computer
says no”.
The law has to be organic and responsive to the needs of
the age. A libel law which may
well have served us well for decades may not be fit for purpose when a lie
may be half way round the world before the truth has put its boots on.
So although the rule of law is underpinned by certain
immutable rights and freedoms which have been hard won over these last eight
hundred years in this country and are still being hard fought for in many
other parts of the world, that does not prevent an ongoing debate about how
the executive, the judiciary and the legislature should carry out their
responsibilities.
As I have said, a simple appeal to the “rule of law” can
never be the whole answer.
So when we talk about the rule of law, we need to be sure
that we are not helping to maintain a comfortable status quo.
What do we actually mean by the rule of law?
There are several neat definitions.
This one is by the American scholar, Thomas Carothers.
“The rule of law can be defined as a system in which the laws are
public knowledge, are clear in meaning and apply equally to everyone.”
We can go a bit further.
Lord Bingham said that “The law must be accessible, and so far as
possible intelligible, clear and predictable.”
That tells us what the rule of law looks like, so to
speak. But it doesn’t tell us
how to apply it. And it doesn’t
tell us who should apply it.
In fact it begs a few questions.
Does “The Law” mean just the letter of the law, and not a jot more?
Or is there such a thing as the spirit of the law, for which you have
to read between the lines?
Is the law a precious vase that should be placed on a
high shelf and never taken down?
Or are laws like tools that need to be taken out and sharpened or modernised
from time to time?
But then, if we change the law to suit new circumstances,
is it still reliable and predictable?
Does the rule of law mean the rule of judges?
After all, they are supposed to know more about the law than anyone
else. I would say, emphatically not, and I am confident that most judges
would agree.
This is why I think the rule of law is about “rule” as
much as it is about “law”.
Someone has to make the law, and for us in the UK, that means Parliament.
And here I have to show my colours.
I am a convinced Parliamentarian.
I am a member of Parliament’s second chamber – the House of Lords.
And although I believe that the House of Lords should be reformed, I am
proud that, over the last decade it was in the Lords, not the Commons, that
the previous Government’s rushes of blood to the head were cooled down, and
their excesses of zeal were hauled back.
So for me, an important part of the rule of law is about
the proper making of laws; the scrutinizing and testing of laws; and even
the unmaking of laws, if the laws are no good.
That is because all states, even the most democratic,
have a natural tendency to accumulate more power than they need; and to
impose more restrictions than are strictly and sensibly necessary.
The answer to every problem is not a new law; and the answer to every
risk is not a new restriction.
If laws become too numerous, or intrude too
deeply and needlessly into our private lives, then it may be necessary to
review and even unmake laws previously thought useful.
Laws also have to be sensible and proportionate.
I recently explained, in answer to a question in the
House of Lords, that putting wire netting at a window was a proportionate
way to protect one’s property.
Wiring the window frame to the electricity mains was disproportionate.
People see red when they see conker matches
or pancake races cancelled on “health and safety” grounds.
They are more supportive of measures to curb the appalling rates of
death and injury in our construction industry prior to our health and safety
laws being passed.
The truth is, at one time or another, we have all
directly experienced or read an account in a newspaper which had made us
feel like Mr Bumble in “Oliver Twist”.
Mr Bumble tried to excuse his appalling behaviour to Oliver, by
saying that his wife had put him up to it.
But Oliver’s guardian, Mr Brownlow, would have none of
it.
“You are the more guilty of the two, in the eye of the
law,” he told Mr Bumble, “For the law supposes that your wife acts under
your direction.”
Mr Bumble’s reply has become proverbial: “If the law
supposes that,” he says, “the law is an ass”.
And without wishing to placate the Mr Bumbles of the
world, the job of the lawmaker – our job in Parliament – is to make laws
that are fit to be respected and obeyed by the man and woman in the street.
In short, we have to try not to make the law an ass.
We also have to think about what is right – what is best
for our society in the long run.
I strongly believe that Parliament has a duty to lead as well as to listen.
When we look back over the last century in the UK, we see
occasions on which Parliament took the lead on issues where majority opinion
was sceptical, or even hostile. Votes for women; the abolition of the death
penalty; racial equality; the decriminalisation of homosexuality.
Public opinion was well known, but Parliament had the
self-confidence to do what was best for our society.
In fact, it was doing the job it was created to do.
And, of course, public opinion has since caught up.
But why is Parliament in such bad odour.
Why is trust in politicians so low?
I don’t believe it’s just the expenses scandal. Though I do think
Parliament has brought much of this grief on itself. In my view,
Parliament’s poor reputation is a result of a reluctance to take the big
decisions. And a reluctance to
take responsibility for big decisions.
It may now be inevitable that major constitutional issues
are subject to referendums. But
this is getting away from the fact that referendums weaken the authority of
Parliament. So too does the
creation of too many arms length bodies instead of ministers retaining
responsibilities for their policies and actions.
We hear a lot of criticism that judges are
trying to step outside their proper role of interpreting the law, and are
trying to assume the role of Parliament in making law – particularly in
relation to privacy law. But we
can’t blame judges for stepping into a gap if Parliament leaves one open.
After I had written these words, I noticed an article in
the London Review of Books by Lord Justice Sedley, a retired Judge, who said
“If Parliament does not like what the courts do, it changes the law. The
sovereignty of Parliament as the final source of law and the sovereignty of
the courts in interpreting and enforcing the law are the twin pillars on
which democracy and the rule of law in the UK rest.”
Two hundreds years ago Edmund
Burke highlighted a new phenomenon. There were
Three Estates in Parliament, he said; but, in the Reporters' Gallery, there
sat a Fourth Estate more important than them all.
In fact, ever since Burke made his observation we have
been wrestling with the question of
where the balance should lie between the protection of
press freedom, and the protection of privacy.
Parliament has consistently opted not
try to define where the balance should lie.
Instead, by default, it has handed the job over to the courts, via the
Human Rights Act.
So when some wealthy individual seeks legal protection of
their privacy, it falls to the judge to decide on the right balance between
freedom of expression and respect for private life, based on the individual
circumstances of the case.
And the heightened publicity attracted by these cases can
expose the judges, as well as the Human Rights Act, to the most virulent
criticism.
We need to keep these matters in proportion, because not
every decision in favour of privacy is a defeat for freedom of information.
As a wise judge recently observed: “Not everything in
which the public is interested is necessarily in the legal sense in the
public interest.
And as our equally wise Lord
Chancellor recently observed: “Every time I watch a football team, I don’t
necessarily want to know about the sex lives of each of the players.”
Perhaps we should all take to heart the opinion of the
Master of the Rolls, Lord Neuberger, when reporting on his recent study of
super-injunctions. He said: “Where
privacy and confidentiality are involved, a degree of secrecy is often
necessary to do justice. However, when secrecy is ordered it should only be
to the extent strictly necessary to achieve the interests of justice.”
But let’s be quite clear.
In our modern world, a free press is an essential component of the
Rule of Law.
But the world has changed since the days when the only
newspaper Clement Attlee read was “The Times”, and even then only to check
the cricket scores.
The problem now is as much technological as political.
News 24/7, Facebook, Twitter, uninhibited blogging, and instant mass
communication throw up new challenges for our society and its lawmakers.
But Parliament has not kept pace.
A decade ago, when I sat on the Puttnam Committee – the
pre-legislative scrutiny committee which looked at what was to be a new
Communications Act – we deliberately excluded any idea of legislating for
the internet. We accepted the
argument that the capacity of this new technology to bring immense economic
and social benefits to humanity far outweighed any problems caused by
leaving it unregulated. And when my department was drawing up our draft
Defamation Bill we deliberately left the section dealing with the internet
“for further consultation”.
The benefit of the internet is there for all to see.
It is no accident that it is the authoritarian regimes and closed
societies which have been so vigorous in trying to discipline and control
the web.
But it is interesting to note what Martin Kettle, himself
a distinguished journalist, said recently in the Guardian, to make a point
which a more self confident parliament would address.
He said “The internet was surely not meant to be this way.
The geniuses who created the modern web and made it so exciting did
not do so in order to create the largest pornography bombardment in human
history, to have a global e-mail system weighed down by spam, to encourage
hostile hacking into national security secrets, to embolden sectarian bigots
to violent threats or mere gossipers to say ill-considered things under the
protection of pseudonimity.”
The rights to freedom of speech and privacy contained in
the Human Rights Act, the freedom and responsibility of the press, the
power, for good and evil, of the new technologies set a challenge for law
makers of Rubik cube complexity. What law makers cannot do is say that these
matters are beyond the rule of law, because that would be a retreat from the
journey we started eight hundred years ago at Runnymede.
The responsibility for solving that particular Rubik cube is
primarily Parliament’s – but not Parliament’s alone.
I have long believed that if Press self-regulation is to
carry credibility, then the Press Complaints Commission has to step up to
the plate, and deliver proposals for its own reform, which will win greater
public confidence and respect.
The press may not be in “the last chance saloon” to which
David Mellor referred 20 yrs ago, but they would do well to note the words
of Lord Justice Sedley: “This is why the issues are large. It can be
credibly said that the fourth estate is close to being a state within the
state, unregulated except to the modest extent that it chooses to regulate
itself and alternately feared and pandered to by public figures.”
The last time the term “state within a state” was used
was in relation to overwhelming trade union powers in the seventies.
We
are currently in the midst of an update of our law on defamation, aiming to
modernise our libel laws. The way we have gone about is, I hope, a model for
good law-making. Firstly, the
Ministry of Justice carried out a wide-ranging consultation, and then
produced a draft Bill, which was itself based on groundwork carried out by
Lord Lester. We have now passed the draft Bill to a Joint Committee of both
Houses of Parliament, chaired by Lord Mawhinney, which will deliberate until
October. We will then finalise the Bill, ready to present it to Parliament
in the Spring.
I urge all interested to use this consciously
deliberative process to feed in their ideas and opinions – either to Lord
Mawhinney’s committee, or directly to the Ministry of Justice.
This is an issue where the man
in Whitehall does not know best (if ever he did).
For the Rule of Law to work, there has to be a healthy
dynamic tension between a self-confident Parliament, a free press and an
independent judiciary. Take away one of those ingredients and the Rule of
Law starts to get into trouble.
But of course the scrutiny of laws does not stop at the
doors of Parliament, or when her Majesty the Queen gives her royal assent.
I’ve already mentioned the Human Rights Act, which came
into effect in October 2000 – just over 10 years ago.
Since then it has hardly ever been out of the news, and it has been
the subject of passionate debate in Parliament.
It has been called both a “Villain’s Charter”, and an “ethical
framework to guide law-makers, judges and individual men and women”.
I don’t see that divergence of views as a bad thing.
It shows how interested people are in the rule of law.
Personally, I think the introduction of the Human Rights
Act was a good thing – a positive addition to the UK’s constitutional
settlement. It provides a
powerful limit on the power of the state, and a powerful definition of the
responsibilities of the state. And it still gives Parliament the last word
when UK laws appear to be in conflict with a fundamental human right.
It’s true that it gives rights to people who appear
undeserving. But that’s really
about fairness. It’s about
principles that were laid down in Magna Carta.
In this country, even if someone is accused of the most dreadful
crimes, they still get their day in court, and they get a fair hearing. And
even when they’re found guilty, they are treated in a decent and humane
manner.
Of course people were treated fairly and decently in the
UK before the Human Rights Act.
But then, if someone was taking a case against the Government, even if they
were right, the only way they could get things changed was to go to the
European Court of Human Rights at Strasbourg – often a long and frustrating
process. I was a strong
supporter of the Human Rights Act when it was passed ten years ago, and I
remain so to this day. I accept
that many perfectly honourable people – some of them my colleagues in
government – are not satisfied with the Human Rights Act, and would like to
see improvements in the way we protect human rights in the UK.
Equally, I am well aware that some supporters of the
Human Rights Act are suspicious, even alarmed, at the idea that the Act
should be put under further scrutiny.
I don’t see it like that.
I don’t believe that we should treat the Act like some precious vase that is
placed on a high shelf and never taken down.
As I’ve said earlier, I see the proper and responsible scrutiny of
laws to ensure that they are fit for purpose as one of the essential
elements of the rule of law.
That is why we have set up a Commission to look again at
the way rights are protected in the UK, to see if things can be done better,
in a way that reflects our traditions – perhaps by a British Bill of Rights.
But one thing we’re very clear on.
There is no question of the UK withdrawing from the European
Convention on Human Rights; and no question of getting rid of human rights
protection in UK courts. The
Commission’s terms of reference are to consider a British Bill of Rights
that incorporates and builds on our obligations under the European
Convention on Human Rights, and ensures that the rights in the Convention
continue to be enshrined in UK law.
All three of the major political parties have made it quite clear
that they want to remain in the Convention.
The drafters of that Convention knew from their immediate
experience all too clearly what happens when powerful modern governments
abandon respect for human rights.
And they were determined that never again would governments be able
to pass laws that allowed them to commit murder and torture as they pleased
– a twisted and perverse concept of the Rule of Law.
But let me give you one last quote from Lord Justice
Sedley: “When the Europoean Convention on Human Rights was written and
adopted in the early 1950s, few doubted that the chief threat to private
life was the state – the informer, the watcher, the secret policeman.”
So whilst some people say that concern for human rights
is frozen in the experiences of the mid 20th Century, and times
have changed. Have they?
If we were to ask people in North Africa if ruthless
dictators and the breakdown of the rule of law are things of the past; if we
asked them if they would like to have a Convention on Human Rights and a
Court to which they take cases where their rights are violated; I think we
know what their answers would be.
And this makes the vision and ambition of Churchill and
other leaders at the end of the Second World War even more astonishing and
impressive. It was nothing less
than to restore the rule of law to an entire continent.
And since the collapse of communism in the 1989, that vision has
expanded. The Convention now
covers a geographical area that extends from Iceland to Vladivostok,
including 47independent states, and a population of 800 million people.
And every one of those people is able to take a claim to Strasbourg,
and have their case properly heard, if they feel their rights have been
violated.
Although some judgments of the Court are criticised for
undue interference in national issues, others regularly help to extend the
rule of law into emerging democracies.
That is a huge achievement.
But it is also the source of a massive problem.
The European Court of Human Rights is now a victim of its own
success. As people, particularly
in developing states, appreciate that for them it is somewhere they can turn
to for an independent judgement, the number of applications increases every
year. The Court’s backlog of
cases now stands at over 150,000, and however hard it works, it can’t clear
the cases quickly enough.
There are also worries that it is not paying due attention to the so-called
‘margin of appreciation’ which should be applied when legitimate courts in
solid democracies hand down judgments.
That is why the Government is determined to push reform
and streamlining of the Strasbourg Court when Britain takes over the
Chairmanship of the Council of Europe in November.
In dealing with the reach and responsibilities of the Strasbourg
Court and that of Parliament it is important that Parliament retains the
last word on these matters. But
in retaining the last word, Parliament should give due regard to the example
it is setting to others.
We’ve asked the experts we’ve appointed to the Commission
on a UK Bill of Rights to look at this issue.
It’s not an easy one, and we look forward to receiving their advice.
In the meantime, we will be pressing ahead on reforms to tackle the
backlog of cases at Strasbourg.
Above all, we want the European Court of Human Rights to work and be
respected.
Establishing the Rule of Law is a long uphill battle.
We’ve been at it in these islands for longer than most.
The sealing of Magna Carta was a brilliant victory in that campaign,
which we are right to celebrate.
But it wasn’t a magic bullet.
Powerful people with strong wills don’t give up power easily.
Although the mediaeval kings renewed Magna Carta regularly, by the
Seventeenth Century, under the Stuart Kings, it needed to be taken out of
the drawer and dusted off again.
And it hasn’t reached its sell-by date even today.
Too many people in the world still do not have the benefit of the
promises that the barons wrested from King John nearly 800 years ago.
I have spoken to you tonight as a jobbing politician.
A practitioner in the art of the possible.
I am not a lawyer, far less am I a political philosopher.
When I was taken to the Court today, and into the
presence of Magna Carta, I found it a humbling experience. There is never a
day goes by when I enter the Palace of Westminster without a sense of awe
for what it is, and what it stands for. – Or look across Parliament Square
to our Supreme Court without dotting my hat to its independence and
integrity
Since taking office a year ago I have championed within
Government the idea of celebrating the 800th anniversary of Magna
Carta in 2015 and joined the Committee being chaired by Sir Robert Worcester
preparing for those celebrations.
My motives have been partly political.
I want to make it clear that human rights and civil liberties are not
some foreign invention. They are deep in the DNA of the people of this
country.
I am deeply honoured to have been asked to speak in this
great Cathedral this evening.
Lincoln is one of the great custodians of Magna Carta.
It has been generous in its willingness to let its copy travel
abroad. Perhaps this is the
right venue to quote St Luke.
“No man, when he has lighted a candle, puts it in a
secret place, nor under a bushel, but on a candlestick, that they who come
in may see the light.”
Perhaps I can quote one of my political heroines of the
21st Century, Eleanor Roosevelt, who said: “I would rather light
a candle than curse the dark.”
Magna Carta and the rule of law it embodies still burns
bright as a hope and inspiration to the world, and will do so in this twenty
first century and will do so as long as men and women value liberty and the
rule of law that underpins all our freedoms.
As I said, I am deeply honoured to be here today, in the
presence of Magna Carta and in this great Cathedral. Thank you.
| Copyright 2007 - 2014 Genealogical Services, Inc.,
Wyndmoor, PA All Rights Reserved |