UK Constitutional Law Association

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Anthony Bradley: A Review of Jack Straw’s Hamlyn Lectures: Aspects of Law Reform: An Insider’s Perspective

abradleyAs the lecturer disarmingly tells us at the outset of the Hamlyn Lectures for 2012 Hamlyn Lectures for 2012, the illustrious procession of Hamlyn lecturers since 1949 (Lord Denning) through to 2011 (Jeremy Waldron) has ‘without exception’ comprised ‘lawyers distinguished by their practice, their academic study or both’.  Jack Straw is an exception.  Since an LLB at Leeds and two years at the criminal bar, he has made his career in politics – holding glittering ministerial office, throughout the Blair-Brown years, as Home Secretary, Foreign Secretary, leader of the Commons, and Lord Chancellor.

Straw has always been interested in ‘the interaction of the work of our courts with the processes of government and the body politic’ and the lectures concern three areas in which Straw could draw on his own experiences.  Despite the responsibility that he had while a minister for ‘an extensive legislative programme’, Straw does not deal with the process of law reform or the machinery of legislation, but with three aspects of the legal system.

The first lecture, ‘The future of the criminal courts’, highlights changes in criminal justice since 1964.  These include greater legalization of policing, thanks in part to PACE and the creation of the Crown Prosecution Service, improved confidence in police integrity (Straw appointed the Stephen Lawrence inquiry), the impact of new technologies, and an improved relationship between senior judges, government and Parliament. (Straw does not claim credit, as he could have done, for his role as Lord Chancellor in the task of bridge-building between government and judiciary that was needed after this relationship reached its nadir during Lord Falconer’s tenure of the post.)  Straw asserts that the criminal justice system is now ‘more effective, more professional, more replete with integrity and more focused on the needs of victims’ than at any other point in his lifetime – but the programme of reform is ‘far from at an end’.

Those who are sceptical about these conclusions will find the third lecture (on appointing the judges) less controversial.  Straw develops two topics: the need to modify the system for appointments established in 2005 (by, among other things, sharpening up the roles of the Lord Chancellor and the Lord Chief Justice), and the need for a more diverse judiciary.  But it is the second lecture, ‘The Human Rights Act and Europe’, that many readers of this blog will read most closely.

As in his memoirs,  Straw describes the happy ‘conception, birth and childhood’ of the Human Rights Act 1998 (Lord Irvine was the bill’s midwife in the Lords; Straw its midwife in the Commons).  He emphasizes the value of the preparation done before the election in 1997, by the joint Labour/ Lib Dem working party among others, especially on the issue of how to incorporate the ECHR alongside the ‘elephant in the room’ of parliamentary sovereignty.   “The result was an Act which was elegantly drafted, and which has met the test of time.  The Act has been a success.” (p 29)

Straw insists that the Act is here to stay.  But, while praising the quality of the senior British judges, he strongly endorses Lord Irvine’s criticism  of the judges for failing to understand the clear words of section 2, HRA: those words (‘must take into account’) were  ‘chosen with care’ and support neither the ‘mirror principle’ nor any suggestion that British judges are duty bound to follow Strasbourg jurisprudence.

Straw puts the blame for current political hostility to European human rights on the ‘ever-expanding remit of the Strasbourg Court for which it has no mandate’.   He argues that, while British courts have for centuries ‘sought to defend the individual against the arbitrary or oppressive power of the state’, and may make decisions that are inconvenient to the executive, Parliament retains the authority to legislate in breach of fundamental rights.  “If Parliament holds its ground, it wins, always.” (p 38)  But such an extreme position is seldom reached because British courts ‘have an intimate understanding of the cultural and political norms within which they operate’.  And the political class is sometimes ‘willing, praying, that the courts will act where they fear to tread’ (the example given is development of the law of privacy).

By contrast, the Strasbourg court ‘has set itself up as Supreme Court for Europe, and one with an ever-expanding remit’.  Straw attacks the principle that the ECHR is a ‘living instrument’, claiming that this lacks any valid basis. He accepts that there is authority in the Convention for the Court to have ‘the role of protecting basic human rights’ (emphasis supplied), but agrees with Lord Hoffmann that basic human rights cannot be stretched to include ‘detailed interpretation of the right to silence, the hearsay rule and – most preposterous of all – night flights at Heathrow airport’.  And he highlights the issue of prisoners’ voting, on which there is ‘absolutely no doubt’ that it is the will of the British people that convicted prisoners should not be able to vote.

Straw develops two further arguments.  The first (linked with an attack on the court for attempting to impose uniformity in human rights across Europe) records disappointment that the HRA has not had the hoped-for effect of expanding the ‘margin of appreciation’ that Strasbourg should allow for national practice in dealing with ‘wider human rights beyond those basic ones whose protection was the purpose of the treaties’ (emphasis supplied).

The second argument is that, unlike most national constitutions, where decisions of a supreme court are subject to a democratic override (whether by special legislative process or constitutional amendment), there is no procedure in the Convention for enabling decisions of the Strasbourg court to be subject to international legislative process.  The view that there is a ‘democratic deficit’ in the Convention system is indeed held by others in Europe.[1]   One answer to this, as Straw points out, lies in the Convention machinery for implementing decisions of the court, which is primarily a matter for political action within the Council of Europe.  But Straw does not accept that this redresses the imbalance in the Convention system and warns that the pride of the court may go before a fall.

There is of course scope for challenging the legitimacy of the court (and indeed of any court that has to hold the ring between legislative decisions and minority rights), but our national sensitivities need to be seen in the light of the case for an understanding of Europe based on a shared value of human rights.  As the Hungarian judge at Strasbourg, András Sajó, has said, the historic belief in shared rights ‘is a self-imposed vision of the member States and not an elitist view from the Court at Strasbourg’.[2]  I welcome the continuing support that Straw gives to the HRA, but I would insist, with Sajó, that the features of the Strasbourg court that Straw now blames for the current discontents were all present and clearly visible in 1997.   

Anthony Bradley is Research Fellow at the Institute of European and Comparative Law. University of Oxford, and is formerly a vice-president of the International Association of Constitutional Law.

 This is a review of Jack Straw, Aspects of Law Reform: An Insider’s Perspective (Cambridge, Cambridge University Press: 2013).

 Suggested citation: A. Bradley, ‘A Review of J. Straw, Aspects of Law Reform: An Insiders Perspective’ UK Const. L. Blog (7th October 2013) (available at http://ukconstitutionallaw.org)

[1]           For a recent collection of papers that inter alia discuss this view, see S Flogaitis, T Zwart and J Fraser (eds) The European Court of Human Rights and its Discontents : Turning Criticism into Strength  (Edward Elgar, 2013).

[2]           A Sajó, in Flogaitis, Zwart and Fraser (above), page 186.

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