Politics
Don't leave justice to the judges
Published 13 December 1999
Liberals dream that the forthcoming human rights act will open a new era. A good look at the judiciary should make them think again
You would need to spend some time searching the slums to find a man as wretched as Kevin Perks. In official language, he suffers from "learning difficulties", a euphemism that doesn't quite capture the brain damage left by childhood meningitis, the illiteracy and incontinence, the stumbling gait and constant pain (legacies of a messy operation to cut out a tumour on his foot) and the bleakness of his life on the incapacity benefit our prudent government is so anxious to cut.
Perks was hauled before Wolverhampton magistrates in 1995 to explain, without the assistance of a solicitor, why he had failed to play his part in redistributing wealth from the greedy poor to the deserving rich by paying the poll tax. He was ordered to clear his debts at a rate of £10 a week. He managed two instalments, then fell behind when he was readmitted to hospital. The bench later protested it hadn't noticed anything amiss, even though Perks had a shunt sticking out of his head to drain surplus fluid from his brain. He was imprisoned for a month for his failure to realise he couldn't enjoy our generous rights and expect to shirk his responsibilities. His family wasn't told for days he'd been carted away in a prison van and reported him to the police as a missing person - which, in a sense, was precisely what he was.
I first looked at his case in 1996 while I was writing a piece on the record-breaking enthusiasm of the Wolverhampton beaks for jailing destitute defendants. It illustrated the meaning of the ideology of zero tolerance old Conservatives and new Labour were transporting from the United States. As Christian Parenti, the Solzhenitsyn of the American gulag, demonstrates in Lockdown America (Verso, £20), the Anglo-Saxon punishment boom has been unleashed to teach the poor that they must, in the words of an official in the Reagan administration, "work harder than everyone else" or face prosecution for a host of new petty crimes. To ensure the lesson was understood, the US has developed a penal-industrial complex. Its prison population stands at 1,700,000. A third of young black men in major cities are either in jail, on probation or awaiting trial and convict labour has earned the admiration of Wall Street by generating easy profits for companies as diverse as Starbucks and Microsoft.
My pessimism was premature. Perks has become the beneficiary of a legal miracle. Radical lawyers took his cause to Strasbourg. On 12 October, the European Court of Human Rights ordered the government to pay him £5,500 for locking him up without representation. Ben Emerson, his barrister, was understandably delighted that his lowliest client had found justice in one of the highest international tribunals. "It has taken a long time for him to obtain compensation in Europe," he said. "But once the human rights act is in force, a person in his position will be able to obtain a remedy directly through the British courts."
The same thought is inspiring others. In the leftish press, and in the small circles where civil rights activists meet, a giddy mood of liberal hubris is building after two decades of defeat. The act will incorporate the European Convention of Human Rights into British law next year. Instead of being deterred by the costs and delays of taking a case to France, activist lawyers will be able to nip round to their local courthouse and receive satisfaction for whatever outrage the Home Office has imposed that day.
A euphoric briefing from the campaigners at Liberty gives a flavour of the triumphalism. Everything Michael Howard and Jack Straw have done to their country might be reversed with the help of one simple law. Child curfews, the enfeeblement of the ancient right to silence, the ability of the state to suppress "in the public interest" evidence that might clear a defendant, the treatment of the mildest protesters as "terrorists", the internment of refugees on the whim of immigration officers, the invasions of privacy by CCTV cameras - in short, the relentless assault on freedom which was unstoppable throughout the nineties has been suddenly rendered reversible. Liberty identifies 70 areas of public policy that it expects to see challenged. These do not make up, it adds cheerily, "an exhaustive list".
All orders by ministers that have not been specifically authorised in statute will be fair game. Admittedly, the government made sure that acts of parliament cannot be declared illegal; it did promise, though, when it came to power, that it wanted to be an ethical, modern administration and would voluntarily strike down all laws that breached the convention.
The resurgent liberals believe, then, that the government has handed its critics an instrument that will shatter the very authoritarianism it propagates in every available tabloid. Citizens will defeat an overbearing state; not by electing MPs or organising protests, but by turning to that vanguard of revolution - Her Majesty's learned judges.
At this point, the voices of the most gleeful advocates of human rights law stammer slightly. For one thing, the senior judiciary has traditionally been hostile to the rights of trade unionists and demonstrators and remarkably indulgent to any bureaucrat in a uniform who wants to hide under the cloak of national security. For another, the traditional complaint that the judges are almost exclusively white, upper-middle-class men is borne out by facts. But the best reason for scepticism is that the law's very career structure has a bias against liberty.
If you find yourself sitting next to an obviously prosperous guest at a dinner party and your host introduces him (it will be a him) as a "successful barrister", you will be guilty of a gaucherie of the crassest kind if you exclaim: "How fascinating! If I promise not to call you Rumpole, will you tell me about your goriest murder trials?"
Ambitious men don't rise in the legal profession by parading an interest in the rights of the citizen. Criminal law is dismissed as tedious disputes about fact. The accumulation of wealth followed by the status of a judge's gown come from disputing the demanding points of civil law - tax, insurance, shipping, copyright and corporate acquisitions. Of the 12 Law Lords who lead the British courts, not one fought a human rights case when he was a young barrister climbing the ladder.
Anne Owers, director of the pressure group Justice and an optimist, counters that, however belatedly, Law Lords learn about crime and punishment when they sit on the Judicial Committee of the Privy Council. They will then hear appeals against the death penalty from West Indian Commonwealth islands which have kept British judges as the final court of appeal. And, indeed, the present crop of peers has overturned years of judicial queasiness and happily approved the return of the noose to the old Empire.
They have found the experience deeply traumatic. "We are completely laden with Caribbean cases," Lord Browne-Wilkinson whinged to the Lawyer magazine in May. London law firms helped men on death row pro bono publico and took up a quarter of his time by "ensuring the cases are well presented and finding a great deal that would otherwise not be observed". I had to read him three or four times before I grasped that his lordship was complaining about altruistic lawyers getting in the way of his court pushing defendants out to face the drop. So much for the right to life.
In opposition, Labour promised to reform the closed system of judicial appointments in which the Lord Chancellor, an unelected member of the cabinet (the executive) and Speaker of the House of Lords ( a part of the legislature), made a nonsense of the separation of powers by deciding who should be a member of the "independent" judiciary. On elevation to office, Tony Blair's mentor Derry Irvine was rewarded with the Lord Chancellorship and announced he was the reincarnation of Cardinal Wolsey. His Eminence decided he was well qualified to choose who should be a judge without subjecting himself to the vulgarity of public scrutiny. Irvine has promoted obscure civil judges to the Lords, who, in as much as anyone knows anything about them, appear to be more conservative than their Tory-appointed predecessors.
Perhaps one shouldn't be too surprised by the dominance of commercial lawyers. It is possible that the City has the most to gain from the incorporation of human rights into British law. A forgotten strand in Labour thinking was once sceptical of human rights for this very reason. The 1945 Attlee government refused to sign the original European convention if it protected property rights, which would prevent nationalisation, and the right of parents to decide their child's education, which would preserve private schools. Harold Wilson's administration delayed permission for British citizens to sue in Strasbourg until a compensation claim from the executives of Burmah Oil had run out of time in 1966. (The British army had destroyed Burmah's eastern refineries in the war to prevent them falling into Japanese hands.)
No one but a lunatic could imagine this Labour government considering nationalising Eton. But its conservatism hasn't stopped City lawyers being as excited by the arrival of a British human rights act as their underpaid colleagues in the dingy offices of Justice and Liberty.
Clifford Chance, the most high-powered of Square Mile firms, successfully lobbied against the new Financial Services Authority being given powers to fine the perpetrators of fraud. This was in breach of the human rights convention, it argued. The authority's court, intended to be as hard in its pursuit of market manipulators as the American Securities and Exchange Commission, was castrated before it heard a case.
I asked a City solicitor if it wasn't close to impossible to punish white-collar criminals without a touch of summary justice. "It is," he replied. "But tough. They have human rights, too."
Which is not to say that the human rights act won't set minimum standards for the next Perks or that all judges are vicious Blimps. But the rights buffs are guilty of ignoring another teasing Labour game of what the political theorist Anthony Barnett calls "constitutional interruptus". As with devolution, it has delivered reform and then worked furiously to retain control. In its rush to ape Conservative secrecy, contempt for juries and persecution of asylum-seekers, new Labour has discarded its pre-election promise that it would conform to the convention's norms.
Tony Blair's conference denunciation of "libertarian nonsense masquerading as freedom" and Jack Straw's sneers about "BMW-driving" civil liberties lawyers show that both are preparing to browbeat the judiciary, which is far more susceptible to political and media pressure than it likes to admit. If the few lawyers who care about liberty find a sympathetic judge, ministers will fight them to the death. Only the credulous will be left believing that the law is an adequate substitute for politics.
In Parenti's America, the Supreme Court bent over backwards to defend slavery in the 19th century; later, it authorised segregation and McCarthyism; now, it allows mass incarceration on a scale never seen before in a democracy in the 20th century. Its judges have been guided by a Bill of Rights since 1791.
Nick Cohen writes the Without Prejudice column for the "Observer"
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