The Rogues Charter
The first of four meetings planned for the ‘away day’ to discuss the political adviser’s paper as a first step in creating a strategy to ‘drain the legal swamp’. Afterdinner on the first night, the Lord Chancellor, her junior minister, Chris Fish, his political adviser, Jeremy Paxton and the Head of the Policy Unit come together in a relaxed atmosphere to discuss the allegation that the law is a ‘rogues’charter’
At this first of the four ‘away day’ meetings
(a)the Minister complains about the law and especially about human rights being a “rogues’ charter” and
(b)the Head of the Policy Unit explains that (i) part of the difficulty is the focus of the lawyers, judges, pressure groups and a sensationalist press on individual cases and especially the few that get to court; (ii) adverse selection means that often those cases involve unattractive individuals and iffy claims; (iii) the judges are the ‘border guards’ who maintain the boundaries of the “Land of the Free” in which most of us live; (iv); if the judges erred on the side of populist demands when a case was finely balanced, the “Land of the Free” would shrink and we might find ourselves living perilously on its boundaries; (v) it is impossible for Parliament to abolish human rights but (vi) because the public concerns about human rights are vacuous they can be assuage by doing something that is equally vacuous.
LC/SOS: Well here we are. We’ve got tonight to discuss concerns about the law operating largely to protect and benefit the lawbreakers and then three sessions tomorrow to look first at the complaint that the law frustrates ‘the will of the people’ and their elected Parliament; second, that it shackles the operation of the ‘free market’ and third, that it corrodes civil society and creates a victim culture. Do you want to open, Chris?
CF: Thank you, Patricia. Last time we met, we talked about the poor sods who can’t affordgreedy lawyers. But, as Jeremy points out in his excellent paper, while we tell hard-working families that we can’t afford to pay for them to defend their rights, we are all too quick to pour hard-working taxpayers’ money into defending the rights of the most undeserving types like foreign criminals, illegal immigrants, terrorists, sex offenders and convicts.
LC/SOS: Chris, if we are to make progress, I think we need to take on board our previous discussions and recognize that common abuse like “greedy lawyers” may play well on the hustings and in the House but is not helpful or perhaps always accurate when we are trying to get a grip of the realities.
CF:Sorry Patricia. But we do need to be careful not to get out of step with the PM and the Home Secretary,or the public mood. Jeremy, is there any wine left?
LC/SOS: I understand your worry but I have the uncomfortable feeling that PD is about to tell me that your accusations are not only true butalsoa ‘Good Thing’.
PD:You have anticipated me, Lord Chancellor. Should I proceed?
PD:The complaints about undeserving malefactors arise mostly from what lawyers call “hard cases”. Borderline cases. Cases where the judges have to make hard and often unpopular decisions because, as we discussed earlier, the government and Parliament would rather not.
LC/SOS:You mean like leaving it to the judges to decide whether a known gang member carrying a knife is able to claim self-defence?
PD:Just so, Lord Chancellor. Or more likely, if we are looking for public outrages, they are cases where the miscreant is claiming his human rights to such vague but fundamental things as respect for his privacy and family life as a way of avoiding being deported to his home country.
CF:Those are the worst.
PD:Certainly, in the public’s mind. And what exacerbates their fury and the misunderstandings is, I fear, the often-expressed belief of the judges, lawyers and the activists themselves that the prime and only purpose of human rights is to protect unpopular minorities or individuals from being persecuted by the state egged on by a howling press.
LC/SOS: But surely that is what human rights are all about. That certainly is why I supported bringing the European Convention rights home in the ‘98 Act.
PD:It is what the stories in the press are all about and even leading judges and human rights campaigners have taken the same view. Indeed, a very senior and learned judge went into print in recent years to argue that, and I quote, “The very purpose of the [human rights] law is to protect unpopular minorities.” But they are all looking down the wrong end of the telescope.
LC/SOS:So, the judge was wrong, I am wrong?
PD:With respect, Lord Chancellor, yes. And, for the future of human rights, you and the judge are very dangerously wrong.
CF:So, the judges are a threat. At last, PD, we agree.
LC/SOS: I wouldn’t bet on it Chris. Explain yourself, PD.
PD:Lord Chancellor, we agreed at our last meeting that the purpose of the law is to deliver the “good life” for us all through most people playing by the rules when it matters, including the state itself. The purpose of human rights law is the same. It is to ensure that we all enjoy those rights and the benefits of the good life that they deliver. Enabling occasional individuals to pursue their cases in court is just a means to that end.
LC/SOS: But the cases do often result in protecting unpopular minorities.
PD:Of course it is helpful that the public and private interest coincide, but we do need to distinguish the means from the end.
LC/SOS: But if you are right, how do you explain all those supporters of human rights believing thatt it is all about defending “unpopular minorities”?
PD: The usual life-mix, Lord Chancellor: vanity and populism. The vanity lies in the judges, lawyers and human rights campaigners basking in their status as heroes defending the weak and maligned against the monstrous and unfeeling power of the state and the vengeful mob.
JP: And the populism?
PD: The populism lies is their admirable attempts to gain support for human rights by focusing on ‘human interest stories’ and stirring up sympathy for suffering individuals. Nothing like the tear-stained face of a hapless mother or child to bring in financial contributions and support for ‘the cause’.
CF: But it is much more self-serving than that, PD. These solicitorsgrandstanding on the steps of the Royal Courts of Justice, flanked by barristersdolled up in their funny kit, are indulging in nothing more than a bit of crude commercial advertising. They’ve made a lucrative industry out of human rights.
PD: I hope you are not suggesting that creating a lucrative industry is a ‘Bad Thing’, Minister. I thought the government was in favour of entrepreneurialism.
CF: There you go, again, twisting my words.
PD: But at least not making a lucrative industry of it…at least not yet.
CF: Not yet?
LC/SOS: Enough.Let’s get back to the point.
PD: Sorry, Lord Chancellor. My concern is that what you, Minister, call “grandstanding” may be counterproductive when the client is an admitted criminal or lawbreaker of some kind. Of course, such malefactors must be defended to maintain the boundaries of freedom. However, getting their story headline newsmay only help to propagate the mistaken belief that human rights are only for the benefit ofthe‘bad guys’.
LC/SOS: But if the judges and the lawyers are not the heroes, who are?
PD: Perhaps we would be better off altogether without heroes, Lord Chancellor. But vanity seems to be all and none of us is immune albeit, we are not all aware of the harm we may be doing by polishing our reputations.
PD: Meaning that I recognize that dryly explaining that the real aim of human rights law is to promote compliance would not raise a penny or a tear in support of “the cause”. On the other hand, I doubt the current heroes of the piece understand that they are providing powder and shot to their opponents when they appear as apologists for malefactors.
CF: All very smart, PD, but which is the right approach? Jeremy, this bottle is empty.
PD: Minister, your longing for a right approach is admirable. However, as I have said before, there never is a right approach. There never is an answer.
LC/SOS: But we can muddle through?
PD: We can be a bit ‘strategic’ as we say when, in fact, we mean the very opposite. For example, we might highlight the heroic defence of the abused victim when raising money for “the cause” amongst those already well-disposed to human rights, but deploy the compliance argument in our dealings with people who are opposed to human rights, such as in discussions with the PM and other of your ministerial colleagues.
CF: So, you are suggesting that lawyers should pipe down. That would certainly please the PM.
PD: It would, but not quite. What I am suggesting is that to defend and promote human rights more effectively, grandstanding should be restricted to cases which are likely to attract popular sympathy or at least not to inflame populist wrath. And it might do no harm if the lawyers and judges found a way of being more transparentand up front about how undeserving some of the beneficiaries of human rights are.
LC/SOS: Very interesting, PD, but I think we must get back to Jeremy’s concerns. For me, the trouble is that, as you say, so many of those who do seek the protection of the judges are such unattractive people: terrorists, foreign criminals, convicts, sex offenders and the like.
PD:Well of course they are, Lord Chancellor. It is a matter of what we in the Unit have identified as ‘adverse selection’.
CF: The only “adverse selection” is by the judges who choose to mollycoddle these yoboes and to ignore the concerns of law-abiding citizens.
LC/SOS: I suspect PD has some other form of selection in mind, Chris.
PD.I do, Lord Chancellor. You see, the authorities, the police and such like, are unlikely to breach your or my or even the Minister’s human rights because our contact with them is usually benign, even friendly.
LC/SOS: And anyway, they know they need to tread carefully with us because we are in a good position to challenge and complain if they overstep the mark.
PD.Exactly. Meanwhile, theirrelationshipwith so-called malefactors, the illegal immigrant, the convict, the foreign criminal, the sex offender is fraught.
LC/SOS: And, because the individuals are ‘bad guys’ in the eyes of the world, they are not in the best position to complain or challenge the authorities if they do overstep the mark.
PD.Quite. And hence, the authorities, including ministers, alas, are likely to tread less carefully or even on occasion, try their luck,especially if the public is baying for blood.
LC/SOS:I see that, but the cases they bring are all so iffy in themselves.
CF: “Iffy” is being kind. What about that so-and-sowho was allowed to stay in the UK because he would be punished for his murderous activities if sent home.
PD:Not just punished, Minister, but tortured and executed.
CF: Serves him right. Is there any more wine?
PD:I take it then that you would want us to allowthetorture of prisoners?
CF: Don’t twist my words.Of course not.
PD: Forgive my confusion but I thought you implied that the torture and execution of the “so-and-so” would not bother you.
LC/SOS: Enough, you two. Let’s press on. My impression is that many of the reports, like that about the man and his cat, are at best inaccurate and sometimes even lies propagated by an ignorant and sensationalist press.
CF:But the reports can’t all be lies, Patricia. What about the judges insisting that convicts should have the right to vote?
PD: Not a lie, but a half-truth on that occasion.
CF: What half-truth? They declared bans on prisoners voting illegal.
PD: I hate to contradict you, Minister, but they did not. Try as he might, the Attorney General could not explain the reason why under our law some convicts could vote and others could not. In effect, the Court could not uphold the government’s position because the government could not uphold or explain its own position. The judges are creative thinkers, but there are some realities that even they cannot overcome.
LC/SOS: It is a worry that there is such a level of misunderstanding. But what about the ‘iffy’ cases where n’er-do-wells try to stretch the law beyond its limits.
LC/SOS: So, PD?
PD:So, Lord Chancellor, the iffy cases are again the result of ‘adverse selection’. If what the n’er-do-well is complaining about is demonstrably a breach of his rights or demonstrably it is not a breach of his rights, the case is not likely to come to court or even to public notice. Either the authorities will admit the breach and make amends or the malefactor will find that he has no way forward and the case will collapse.
CF:That’s obvious, but so what?
PD:So, what happens is that most of the cases that do come to public notice and especially in the High and the Supreme courts are ones where both sides think they have a chance of winning. They will often be poised on a razor’s edge with the judges straddling it.
LC/SOS: A very painful metaphor, PD.
PD: It is a very painful position Lord Chancellor. Ask the judges. But those are the cases that get reported by the press precisely because they are on the borderline and involve ‘malefactors’. Of course, the public gets the impression that those are the only circumstances where human rights come into play. And to make matters worse, the papers rarelyreport the iffy cases thatfail.
JP: But you can see why people get angry.
PD:I can, but only because I understand their remarkable capacity to use their common sense to come up with common nonsenses.
You’ve a damned nerve, PD. Let’s remember who pays your salary. You owe the public respect.
PD:My apologies, Minister. You are right.
CF: Well, thank you for that, at least.
PD:Not at all. Indeed, one cannot blame the public when they are fed nonsense by politicians, the news media and the legal establishment,who all share the same mistaken view that the primary purpose of human rights is to provide protection and redress for individualsfrom unpopular minorities. Rubbish in, rubbish out, one might say.
CF: Is that an accusation, PD?
PD:No, Minister, just a general observation of a self-evident truth.
LC/SOS: Dangerous waters, PD. Let’s get back to the iffy cases.
PD: Certainly, Lord Chancellor. The iffy cases, by their nature, are borderline or, if you like, are the cases that lie on the outer frontiers of the huge ‘continent’ of safety, freedom and respect within whose generous boundaries most of us live safe in the enjoyment of our human rights.
CF: We’re safe because, unlike the yoboes we are talking about,we don’t break the law.
PD: And more importantly, because the law itself protects us, Minister. But that could change. If the judges, in a finely balanced case, favoured the authorities or the cry of the mob over the protection of people whom the public see as undeserving malefactors, the boundaries of the continent would shrink.
CF: That might be no bad thing. We seem to be out of wine.
PD: No bad thing until those of us living in the leafy suburbs of law abiding England face policemen knocking on our doors at night; intrusions into our family and private lives; unjustified restrictions on what we can say or hear etc..
CF: So, what are you saying, PD?
PD: What I am saying, Minister, is thatwe should thankthe ‘malefactors’ and the courageous judges who together patrol the frontiersof the broad and sunny uplands of freedom and safety where most of us live undisturbed by an over-intrusive state or a baying mob.
LC/SOS: Should I feel a cheer coming on?
PD:Should you feel the urge, Lord Chancellor. But softly oryour ministerial colleagues mighthear you.
LC/SOS: But we do need to cheer, surely, PD, if only to safeguard against those, including some of my colleagues, who want to repeal the Human Rights Act and repudiate the European Convention on Human Rights.
PD:Frankly, Lord Chancellor, you can save your cheering. It won’t happen.
CF: That remark isway above your pay grade, PD. You’ve read the government’s Manifesto commitments. You know the PM’sdetermined to get something done about human rights. This is now a matter for the politicians not the backroom machinations of civil servants.
LC/SOS: Hold on Chris. What makes you so sure, PD that it won’t happen? There are some very loud and powerful voices calling for repeal and withdrawal,however difficult it might be.
PD:It would be a great deal more than “difficult”, Lord Chancellor. The only rational explanation for removing guarantees of a right to a fair trial is to allow unfair trials to be held? The only reason to abolish the right to free speech is to allow a ban on free speech?The only reason to abolish the right to respect for family life or to marry and form a family or to vote in elections etc. is to enable the state to ride roughshod over those rights and freedoms? I doubt that many politicians would want to defend, much less promote such a change.
CF: But as you have so condescendingly pointed out PD, policy making is not rational. The government might succeed in abolishing human rights just by stirring up the popular belief that the Act and the Convention are a rogue’s charter and simply repealing one and repudiating the other,without expressly making it legal to breach such rights.
PD:But repeal would not be enough.
JP: I don’t see why not.
LC/SOSMy guess is thatPD does. Tell us the worst, PD. Or should I say the best.
PD:Lord Chancellor, the judges have been aware of the dangers of the populist backlash against human rights for years now and have taken the opportunity to declare that some at least of the Convention rights are already contained within the Common Law of England. Consequently, just repealing the Human Rights Act and withdrawing from the Convention would not remove those rights.
JP: But Parliament is sovereign and could change the Common Law.
PD:It could, Mr. Paxton. But there are two difficulties. First, we do not know what rights the judges may ‘discover’ in the Common Law in the future. Hence, short of a time machine, we cannot abolish those rights. The second difficulty is that we would therefore have expressly forbid the judges from enforcing any Common Law rights that they have already discovered and those that they might ‘discover’ in the future.
CF: But we have promised to rein in human rights.
PD:I understand that, Minister. But would you be happy to vote for a bill that in effect prohibited the judges intervening where there had been an unfair trial or other right that the Common Law is found to confer?
CF: Of course not.
PD:In that event, you could not abolish the Common Law rights, even if we knew what they all were, which we do not. Hence, you could not hamper the ability of the judges to intervene where they felt justified in doing so.
LC/SOS: Check mate, I think Chris. Anyway, I am persuaded, PD. So, the attacks on human rights are nonsense?
PD:Much worse, Lord Chancellor, they are a common nonsense and so of added potency and difficulty
CF: But this is appalling, Patricia. The PM has told me in no uncertain terms that she expected “to see progress” on human rights by which she means rolling them back. Who is going to tell her that you won’t be able to do anything about them?
PD:Minister, I am sure we can help the PM “to seeprogress”.
PD: You may recall that at our first meeting we agreed that some topics are so difficult to deal with that rather than attempting to address the substance it was better to sloganize or make up a cover story that was as compelling as it was vacuous.
CF: You mean “targeting” rather than “rationing” legal aid. OK. And?
PD: And, Minister, most of the public concern about human rights is about their being imposed on us by foreigners and a foreign court and that they promote a ‘rights culture’. Mistaken, of course, but as deeply felt as it is nonsensical. Odd how the depth of stupidity and strength of belief seem to coincide.
CF: Cut the cheap shots, PD, and tell us what we can do?
PD: Something and nothing, Minister.
CF: What on earth does that mean?
PD: It means, Minister, that we need to do something that does nothing. As the concerns about human rights are vacuous, our response must be equally vacuous. To paraphrase Abe Lincoln, “As our difficulty is vacuous, so we must think vacuously and act vacuously”.
LC/SOS: I am bamboozled, PD.
PD: I am suggesting that you, Lord Chancellor, might promote a British Bill of Rights and Duties. It could contain all the same rights as the ‘98 Act and the Convention, albeit dressed up to lookbold and traditionally bulldog “British” with resonances of the 1689 English Bill of Rights. What is more, in mentioning “duties”, it would mislead people into thinking it is somehow striking at the despised ‘rights culture’.
CF: But it wouldn’t actually change a thing.
PD: Not ifwe draft it carefully.For a start, duties are the other side of the coin to rights. Where you have a duty there is a right and where you have a right there is a duty. The words are inter-changeable and the Bill would therefore change nothing. That would be its genius.
CF: You’re suggesting we bamboozle the PM andspendgovernmenttime and money drawing up a Bill that wouldchange absolutelynothing!…I like it. It might work.
LC/SOS: I rather think a British Bill of Rights and Duties would appeal to the PM with its echoes ofMagna Carta,the Glorious Revolution…
JP:I feela chorusof Land of Hope and Glory coming on.
LC/SOS: …it might even be the set piece of a strategy. However, I suggest we keep it to ourselves until we have fleshed it out enough to try it on the Home Secretary and the Attorney. So, with that happy prospect in view, are we done for the night?
CF: I don’t know about anyone else, but I could use a nightcap.
PD: Me too, but sad to say, Minister, while I share your commitment to securing the best value for money from our stay, the cellar is locked and the staff gone home.