The role of lawyers in public life
"The role of lawyers in public life" delivered to the WS Society Dinner.
In inviting me to speak this evening, Caroline Docherty, the Deputy Keeper of the Signet, reminded me that last year’s speaker, Michael Portillo, made the front page of the Scotsman the following day … and went on to add, “but that is by no means a requirement”.
If my memory serves me well, Mr Portillo’s remarks included eulogies about our First Minister. I’m sure if I was to follow suit, I would easily get a headline in tomorrow’s Scotsman. But I’ve never fully subscribed to the maxim that all publicity is good publicity.
Nevertheless, we can note the increasing media profile of legally related issues. Historically, they seemed to focus exclusively on the latest news from the High Court. But more recently, newspaper columns have carried reports on extraditions of alleged terrorists, compensation for delayed appeals, prisoner voting rights, the role of the Supreme Court in Scottish human rights cases.
In a similar vein, many lawyers in Scotland and elsewhere have contributed actively to the debate on the independence referendum thus far, albeit coming from different political perspectives. Law academics have never before featured so regularly on Newsnicht. Facilitating the debate on Scottish independence, the Law Society of Scotland last week hosted an over-subscribed event in the largest Committee room in the Houses of Parliament. I was pleased to take part and can confirm that the contributions from the panellists and from the floor, were robust and covered new as well as old ground. One contribution, from a Canadian visitor, was, I thought quite apposite. She said that the question for debate should be “What is it that Scotland can contribute to the world that it is at present prevented from contributing?” I like the way that question is framed.
Those of us who believe in Scotland’s continuing place within the UK will be arguing that the United Kingdom is good for Scotland, and that Scotland is good for the United Kingdom.
We will also be arguing that Scotland makes a greater contribution in the international sphere as part of the United Kingdom than it could do if we acted alone. This evening, I’d like to focus specifically on the contribution that we as Scots lawyers can make to some of these most pressing social and political issues facing us at this time.
We meet tonight on a date - 9 November - that is rich in historical significance. On this day in 1989, for example, Berliners were celebrating - indeed the whole world was celebrating - the fall of the Berlin Wall. 1970 saw the passing of General De Gaulle - and ten years earlier in 1960, John F Kennedy was e. lected President of the USA by the narrowest of margIns. On a sombre note, 74 years ago tonight, Austria and Nazi Germany witnessed the horrors of the pogrom against Jewish people and property on Kristallnacht.
And although there is a profoundly historic link, I suspect it was only coincidence that on November 9th 1998, the Human Rights Act gailled Royal Assent. I supported that Bill as it went through Parliament and, indeed, I had long campaigned for recognition of the European Convention of Human Rights in British courts, so it was a momentous day for me, when the rights, proclaimed in the aftermath of world war, were brought home. Although, even then, I couldn’t have anticipated that I’d be the first minister to experience its effects following the decision on temporary sheriffs!
The Act hasn’t been universally popular - it was never designed to keep the Daily Mail happy, and in that it has probably not disappointed - but of course one of its significant effects is to defend and protect the rights of people who are not always popular: the criminal accused, prisoners, people awaiting repatriation … but it is a truth seldom acknowledged that popular people are less likely to have resort to the protection of instruments such as the European Convention of Human Rights.
But let us remember too, that promotion of the Convention has also resulted in widespread changes all across Europe - for example, in some countries, the decriminalisation of homosexuality, the recognition of the freedom of religion in former Soviet countries, the prevention of ill-treatment by the police and the removal of military judges from civilian courts.
And it’s also worth reminding ourselves that the United Kingdom was the driving force behind the creation of the Convention and that it represents, in a short document, the best traditions of law and the protection given by law that this country can offer from its long history of constitutional stability.
Of particular relevance to my theme this evening is that fact that the origins of the Convention illustrate the role which lawyers of Scots origin can play on the international stage, operating within the United Kingdom.
In the immediate aftermath of the second world war, Winston Churchill, by then out of office, toured Western Europe at a time when British prestige and influence was still very much in evidence. It was during this tour that Churchill began to call for European unity - and in an impassioned speech in Zurich in September 1946 he said: “We must build a kind of United States of Europe. In this way only will hundreds of millions of toilers be able to regain the simple joys and hopes which make life worth living. “
Subsequent to that speech a “United Europe Movement” was formed in the UK, with representatives from all the major parties at the time. One of its members was a Scot, David Maxwell Fyfe, an opposition MP and lawyer, who had gained something of an international reputation for his cross examination of Nazi war criminals at the Nuremburg trials - most famously his cross examination which secured the conviction of Hermann Goering. With a particular interest in human rights, Maxwell Fyfe attended a Congress of Europe in the Hague in 1948, and in his memoirs he records something which illustrates how the world must have looked to those delegates in the 1940S: those attending the Congress, senior political figures from allover Europe, had to obtain their meals by the use of food tickets rather than currency, although it was by then three years after the end of hostilities. It was in that shattered Europe that they took first steps to the creation of a Council of Europe - and the Statute of the Council of Europe was agreed in 1949.
In the period between the Congress at The Hague, and the first meeting of the Assembly of the Council of Europe, David Maxwell Fyfe was involved in drafting the Convention, with the assistance of academic lawyers from Oxford and Cambridge University. That first draft covered what Maxwell Fyfe described as the “basic decencies of life” - security for life and limb, freedom from arbitrary arrest, freedom from slavery and compulsory labour, freedom of religion, freedom of association, freedom of marriage, the sanctity of the family, equality before the law, and freedom from arbitrary deprivation of property.
By August 1950, the Assembly agreed the draft Convention. The Times reported an important aspect of the new Convention: that it was not to be a collection of mere aspirations and platitudes. It was to be matter of real, enforceable, law. The Times report says: “The committee’s insistence on the convention was based on the fact that it stated human rights not as vague generalities, but in terms that could be enforced by a court of law.”
That same week, Maxwell Fyfe himself wrote in the Observer: “After a second blood-bath they are, on the Continent of Europe, looking to international organisations by which states take joint action to buttress things which at the beginning of this century were taken for granted - the absence of arbitrary imprisonment, torture and official murder, the presence of freedom of thought, of religion, of marriage, and political association. Our lunatic century is looking for a way of guaranteeing ordinary people a quz•e t lizfe e , …. “
Therein lies an insight into the mindset of people living at the halfway mark of the last century, particularly those active in public and political life, when the Convention on Human Rights was created. The century so far must have appeared to be subject to a recurring madness, and those in a position to influence the future sought for their people the essential elements of “a quiet life”. And although Nazism and Fascism had been defeated, at a great cost in terms of blood and treasure, another form of totalitarian government held sway across Eastern Europe and appeared to threaten the rest of the Continent.
The UK subsequently signed the Convention - the first country to do so. The implications of the Convention were still being discussed in Cabinet at the beginning of 1951 (we know from the Cabinet papers which are now in the public domain).
One of the concerns at that time - and one which resonates today - was the Right to a Fairly Elected Legislature and, in particular, the basis on which elections might be conducted. The Cabinet minutes refer to (and I quote) “ … the possibility that the Article as drafted might require us to adopt an electoral system of proportional representation.” Heaven forbid! It seems that the government of the day, despite its radical credentials, feared agreeing to one sensible democratic proposal for fear that it might lead to something even better.
Perhaps there was also an element of xenophobia in their horror at a proportional representation system of voting, something which was definitely regarded as foreign at the time.And yet, we often, in time, come to accept such “foreign” notions as useful.
One lesson that I take from this is that while lawyers of Scottish origin have contributed much to the protection of human rights and the promotion of European union, we have also learned a great deal in the process. We have not been isolated. We have chosen instead to play a full role as part of the United Kingdom, bringing our own ideas and approaches to the table, and absorbing much from what others have to offer.
Take referendums as another example of this. You will gather that I am now about to turn to the large grey mammal with the long trunk in the room. It is sometimes said that Winston Churchill said that referendums were the “device of despots and dictators”. It was in fact his political opponent Clement Attlee who made the connection between the referendum and the dictator, with some justification considering the use of plebiscites in the recent past. Attlee said: “I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum. “
“Alien to all our traditions” is quite strong meat, but it was not an unusual point of view, and perhaps echoes the words of the constitutional lawyer A V Dicey who once wrote “The word ‘referendum’ is a foreign expression derived from Switzerland”.
There is something in Dicey’s tone which suggests that “foreign” and “Switzerland” are not to be greeted with approval. But in fact in the course of his long career as a constitutional theorist, Dicey progressed from advocating absolute Parliamentary sovereignty to advocacy of referendums in situations where some fundamental constitutional change was proposed - in particular he was concerned, as a Liberal Unionist, that there should be no changes to the Acts of Union with Ireland.
We have, since 1975 at least, now come to accept referendums as being part of the process of constitutional change. We have seen two referendums in Scotland on devolution - in 1979 and 1997, as well as other UK referendums, such as the voting system referendum last year.
I welcome, as a lawyer and as a UK government Law Officer, the agreement we now have with the Scottish Government for a section 30 order to ensure a sound legal basis for the referendum on independence. The last thing we needed was for proposals to be brought before the Scottish Parliament and then challenged in court.
What began in January of this year with the publication of the UK Government’s consultation was in many respects a discussion about the law: did the Scottish Parliament have power to legislate for an independence referendum or not? I know that some have been surprised by how central legal arguments have been to the debate thus far. Yet I think this is to be welcomed. We are a country with a great respect for the Rule of Law. And law and politics are so often closely intertwined.
This point was made eloquently by the Keeper of the Signet Lord Mackay of Clashfern in evidence to a Parliamentary Committee. He was speaking in the context of another difficult and controversial matter - the prisoner voting rights issue, but, more specifically, on the extent to which Parliament and the courts should have regard to the jurisprudence of the European Court of Human Rights: ‘‘1 would just like to say that our country has embraced the rule of law for many, many generations and it still is bound by the rule of law. Therefore, when we have taken on legal obligations, as we have under the Convention of Human Rights and Fundamental Freedoms in Europe, the rule of law requires us to obey the courts that are set up under that Convention whose judgments are binding. I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law. Indeed, that is how it happens.”
I think that is as it should be, and I am confident that the contribution that lawyers made helped us to get to the point of agreement on the important issue of the legality of the referendum.
Having dealt with the process, I now look forward to the debates that we will have on the substance. I think recent experience shows that legal issues will continue to be important, and as lawyers we can certainly not switch off from the debate.
Let me provide two specific examples of what we as lawyers might contribute, whatever our political perspective. Firstly, the devolution settlement continues to be widely accepted but poorly understood. As lawyers I am sure we recognise that independence is not simply an extension of devolution. Instead, it is a fundamentally different legal construct. It concerns me that this is not always properly understood.
The devolution settlement was drafted, implemented and is now operated on a day to day basis with the support of lawyers. The Scottish Parliament rightly has the power to legislate for devolved matters - power that is extended greatly by the Scotland Act 2012. Yet in many cases the Scottish Parliament looks to the UK Parliament for support. It asks the UK Parliament to legislate so that •Scottish measures work effectively across these Islands. And in many cases it consents to the UK Parliament legislating for Scotland in devolved areas, recognising that this will be a more efficient and effective than separate legislation. This is an advantage of devolution: flexibility of approach and close co-operation between the Parliaments that serve Scotland. As the debate on independence proceeds, let’s ensure that we bring clarity to what devolution actually means, what it delivers, and how it can continue to evolve.
Secondly, many issues associated with the prospect of independence have both a political and legal content. We should not allow the legal aspects to be overlooked. Most recently, the debate has focussed on whether an independent Scotland would automatically be a member of the EU. Some may now regret being quite so forceful in their assertions about Scotland’s continuing membership of the EU. Assertion is not enough: we need to consider the detail, and look carefully at the law.
The UK Government has already set out its initial conclusions on this issue following a careful consideration of the issues. As I said at the Edinburgh Centre for Constitutional Law last month: “the more likely conclusion - and the one which people must weigh in the balance before casting their vote - is that the UK would carry on with its international obligations, including EU membership as at present. And the likely consequence is that Scotland would have to apply to join the EU. That is, if it joined the EU, it would do so on terms, and it is those terms which would create considerable uncertainty about the future of Scotland outside the UK”.
The UK Government will continue to do further work on these issues, supported by a wide range of legal experts, many of whom have contributed to the Legal Forum that I established in the summer to provide the Government with external input and challenge. But this work is not simply the preserve of a select group of experts. Each of you here, as lawyers and as members and guests of this illustrious society, have a role to play in elevating the tone and content of the debate, and bringing clarity to many of the novel and challenging legal questions prompted by the forthcoming referendum.
I recognise that my political perspective will not be shared by everyone in this room. But, as a community of lawyers, let’s not shirk from making a strong and informed contribution to the mo~t pressing issues that face us at this time. Following the example of Maxwell Fyfe, that may involve contributing to the protection and development of fundamental rights within the UK, and beyond these shores. For many of us, it will involve contributing to the debate on our constitutional future. Whatever our perspective, let’s ensure that our voice as lawyers is heard, and that these issues are debated with intelligence, clarity - and a good measure of grace.