Champions of the Rule of Law

Hostettler, John

• Publisher: Waterside Press
• Year: 2011
• ISBN:
  9781910979990
• Topic: Derecho
• Subtopic: Biografías jurídicas

An account of the Lawyers who helped — over centuries — to develop and protect civil liberties, human rights and the Rule of Law. Also discusses breaches of the Rule of Law in modern cases and in response to terrorism.Champions of the Rule of Law looks at an overarching principle of English Law. It describes how a powerful and fundamental rule came about and how it has been preserved in the face of attempts to circumvent it. Standing at the heart of all matters of justice — and now exported to many parts of the world — the Rule of Law holds, in short, that the Law applies in equal measure to everyone. No matter how high, mighty or privileged someone may be, or whatever claim or allegation is being made, all those coming before it should always be treated in just the same way as anyone else will be.Events in both modern times and across legal History readily demonstrate the sometimes precarious nature of the rule and the need for 'champions' who are prepared to uphold and defend it—and whilst the need for such a rule may seem obvious on any balanced view of how justice should be dispensed, the central importance of the rule is by no means intuitive to some people. This means that there is always a need to re-iterate the purpose of the rule, the arguments behind it and to understand the mechanisms which safeguard and protect it.Whenever the Rule of Law does fall under threat, whether due to arrogance, claims to special treatment, misguided understandings, dubious explanations or lack of due process, there is a need for people of the calibre of those described in this book to step forward.Quite apart from the book's interest for Lawyers, historians and students it will appeal to anyone seeking reassurance that justice is truly blind, fair, even-handed and accessible to all.With a Foreword by Lord Steyn.

About the author

John Hostettler was a practising solicitor in London for 35 years as well as undertaking political and civil liberties cases in Nigeria, Germany and Aden. He sat as a magistrate for a number of years and has also been a chairman of tribunals. He played a leading role in the abolition of flogging in British colonial prisons and served on a Home Office Committee to revise the rules governing electoral law in Britain. He holds several university degrees and three doctorates.

His biographical works include those on the radical social reformer Thomas Wakley and legal icons Sir James Fitzjames Stephen, Sir Edward Carson, Sir Edward Coke, Lord Halsbury and Sir Matthew Hale.

He has since written a succession of acclaimed works for Waterside Press. These include The Criminal Jury Old and New: Jury Power from Early Times to the Present Day; Fighting for Justice: The History and Origins of Adversary Trial; Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain (with Brian P. Block and a Foreword by former Prime Minister Lord Callaghan); the all-embracing A History of Criminal Justice in England and Wales; and most recently, by way of the reissue of a work previously published by Barry Rose, Sir Thomas Erskine.

In 2009, his book Sir William Garrow: His Life, Times and Fight for Justice, co-written with Richard Braby (a descendant of William Garrow), rescued from obscurity the story of one of English law’s forgotten legal giants, a story mirrored by the prime time BBC TV series “Garrow’s Law”.

CHAPTER 1

Introduction

“He who would put security before liberty deserves neither”.

Benjamin Franklin¹

The Rule of Law and Parliamentary Supremacy

Democracy without the rule of law is meaningless. The rule is, indeed, an expression of liberal and democratic principles. It is the life-blood of free societies. Even totalitarian regimes, which regard it as a pernicious doctrine, feel obliged to pay lip service to it and enshrine it in their constitutions. But they never put it into practice for the benefit of their citizens.

Nonetheless, the interpretation of the rule can be imprecise and threats and acts of terrorism are causing the leaders of some democratic countries to weaken fundamental aspects of it, such as the absolute requirement of fair trials and the total rejection of torture. In these circumstances it is sometimes argued that the courts should act as a bulwark to prevent politicians undermining the rule of law. And, in fact, in recent times some judges have expressed serious concern about lawfully enacted statutes. This leads some commentators to question whether there is a conflict, or at least tensions, between the concept of the rule of law and the supremacy of Parliament?

Because of these issues the rule of law is today more widely discussed than at any time in the past. But its meaning is not entirely clear cut and is under dispute. It is of vital importance, therefore, to understand what the rule of law involves and the crucial part it has played in the history and progress of this and other countries of the free world. Equally, at the same time to explore the contribution of those who have been its greatest champions.

The notion of a rule of law has a long history going back, at least, to Aristotle who believed that a king who ruled by the law was a better sovereign than a king who ruled arbitrarily. He wrote that, “the rule of law, it is argued, is preferable to that of any individual. It is more proper that law should govern than any one of the citizens; upon the same principle, if it is advantageous to place supreme power in some particular persons, they should only be appointed to be the guardians and servants of the laws”.²

The concept has also been recognized in different forms throughout English legal history and the rudimentary form of the rule espoused by Aristotle has long been replaced by more modern and elaborate versions.

However, there remain varying opinions about what precisely the rule of law is. For instance, Lord Bingham, former Master of the Rolls, Lord Chief Justice and senior Law Lord, so clearly considers the rule of law to be of vital importance that he has written a stimulating book entitled simply, The Rule of Law.³ Yet he has also pointed out that some academics consider that the term is well-nigh meaningless. Others, like Lord Hoffman sitting in the House of Lords, believed that it is an essential ingredient of a democratic society.⁴ It can, in truth, be seen as a binding force in society. Nonetheless, as Parliament is sovereign it can manifestly enact laws that would undermine the rule of law and there is clearly some potential for conflict between the supremacy of Parliament and the rule of law.

In some democratic countries, including the United States of America, there is a written Constitution which the judges can interpret and thereby make law. In Britain this is not the case, although judges sometimes make law by their judgments which can become binding precedents. But, unlike the legislatures of the United States, Parliament can reverse what the judges decide, although nowadays the judiciary is fighting back to defend the rule of law against politicians who argue that in the face of terrorism it is no longer entirely binding in all its facets. Lord Bingham has played a part in this as with the decision of the House of Lords that it is unlawful to use control orders to detain terrorist suspects indefinitely without trial. There is also great concern over the alleged participation of the British government in the United States’ use of extraordinary rendition.

Judicial independence is part of the fabric of the rule of law. In England this has been clearly accepted in sections 3(1) and 3(5) of the Constitutional Reform Act of 2005. Section 3(1) provides that, “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary”. Whilst section 3(5) adds that, “The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary”. That is not to say, however, that Parliament cannot reverse judicial rulings.

In recent times, with their use of judicial reviews, the courts have, on occasion, challenged Ministers, particularly over Home Office decisions.⁵ And, when, in 2004, the Asylum and Immigration (Treatment of Claimants etc.) Bill contained a clause placing the Home Secretary above the rule of law, by removing judicial scrutiny of his decisions even if they involved either an error of law, a breach of natural justice or a lack of jurisdiction, it was described by the then Lord Chief Justice, Lord Woolf, as “a clause … fundamentally in conflict with the rule of law and should not be contemplated by Government”.⁶ The uproar that followed resulted in the disputed clause being withdrawn.

Lord Steyn, and other Law Lords, had already entered the fray, asking where the principle of the supremacy of Parliament comes from. It is strongly arguable, Lord Steyn claimed, that it is a construct of the common law and the judges created it. If that is so, he continued, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether judicial review is a constitutional fundamental which even a sovereign Parliament cannot abolish.⁷ His Lordship failed, however, to cite any evidence to show how or when the judges created the principle of the supremacy of Parliament and the argument is clearly not sustainable. He did add, more acceptably, that unless there was the clearest provision to the contrary, Parliament must not presume to legislate contrary to the rule of law.⁸

However, in contrast, were the words of the then Prime Minister, Tony Blair, who ignored the warning of Benjamin Franklin set out above. Blair said that, although the anti-terrorism legislation passed in the United Kingdom in 2002 after the events of September 11 in the United States had been declared partially invalid by the courts, the mood was now different following the 7 July 2005 bombings in London. “Let no one be in any doubt” he said, “the rules of the game are changing”. He continued, “Should legal obstacles arise we will legislate further including, if necessary, amending the Human Rights Act in respect of the European Convention of Human Rights”.⁹

In the White Paper introducing the Human Rights Bill in 1977,¹⁰ it was said that:

The Government has reached the conclusion that courts should not have the power to set aside primary legislation, past or future, on the ground of incompatibility with the [European] Convention. This conclusion arises from the importance which the Government attaches to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes.

Parliament subsequently did so act thus actually setting the legislature and the judiciary in conflict.

Bonham’s Case

In the seventeenth century, Sir Edward Coke endeavoured, in Bonham’s Case in 1610¹¹ to give the common law judges power to control Parliament and to declare certain statutes void. He declared that, “it appears in our books that, in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to b...