The recent, sad and untimely death of Lord Bingham, one of this country’s finest jurists, calls for a reflection on the importance of the rule of law, about which he wrote so recently. Most importantly, what lessons can we learn from three decades in which Lord Bingham sat as a judge?
It is right to speak with pride of the legacy of Britain’s common law system. Its principles are the foundation of legal system throughout the world protecting the individual against the State. The common law experience shows the merit of laws derived not from the codification of abstract principles but through the resolution of real conflicts and disputes. Yet anyone who watched the BBC’s brilliant Garrow’s Law will have had an insight into how little protection was trial by jury in a world without a fair police force, thorough investigation and strict rules of evidence and disclosure. As we all know, the experiences of the Birmingham Six and Guildford Four demonstrated how inadequate protection against such abuses lived on into the late 20th century.
The recent general election again brought into the fore debate about the effects of the Human Rights Act 1998 (‘the HRA’) and the European Convention on Human Rights (‘the ECHR’) it incorporated. As a criminal barrister, though, I would rather start with one of the finest pieces of legislation of the 20th century, the Police and Criminal Evidence Act 1984 (‘PACE’). It is through this Act that suspects’ interviews must be tape recorded, identification parades held and evidence obtained through oppression excluded. These parts of the criminal justice process may not appear particularly important to a layman but they are critical. Fine principles are toothless without carefully drafted rules (whether from statute or case law) to ensure a process that appears fair isn’t corrupted at critical stages, leading to injustice at best but at worst the imprisonment of the innocent for years, even decades.
This experience of the importance of the practical over the principle leads us to consider how far the HRA has really protected the fairness of the criminal process. Certainly the HRA has had a significant effect on public, criminal and family law. Not least of these was the landmark case of A & Others v the Home Secretary (2004) where Lord Bingham found that the provisions of the Anti Terrorism, Crime and Security Act 2001 allowing the detention without trial of foreign terrorist suspects were incompatible with Article 5 of the ECHR. Elsewhere, the HRA has allowed lawyers to rely on articles of the ECHR in areas as widespread as planning applications (Article 8: Coster v UK  33 EHRR 20), housing law (Article 8 – right to private and family life; and Article 14 – prohibition against discrimination) and immigration law (most frequently Articles 2 – the right to life; 3 – protection against torture; and 8).
Yet we in common law countries know that our freedoms rest on older and surer foundations than the ECHR. The adversarial process, far from impeding the search for the truth, ensures that an individual presents his case to an impartial judge or jury, not an investigating magistrate whose role is impossible to disentangle from the state that prosecutes him. The jury system transfers from the state to a defendant’s peers the decision about his guilt. And the many procedural protections built up by Parliament and the courts ensure, where the criminal process outside the courtroom has prevented the possibility of a fair trial, that the proceedings are stayed.
Indeed, the experience of the twelve years since the HRA passed into law is a troubling one, for it has seen the passing of perhaps the most illiberal body of legislation for two centuries. The DNA database expanded to all arrested, regardless of their guilt or the triviality of their alleged crime; hearsay evidence permitted as a matter of routine; bad character evidence routinely admitted; arrests permitted for any crime, even those that do not carry prison sentences; defendants facing accusations impossible to rebut through witness anonymity (see my writing elsewhere); and a marked increase in minimum sentences, hugely reducing judicial independence. Away from the strictly criminal sphere, the tabloid paranoia over paedophilia has led to a multi-headed hydra of over-reaction through the Independent Safeguarding Authority (ISA) (a report by Civitas published yesterday argues that any family looking after other people’s children faces vetting by the ISA); the Regulation of Investigatory Powers Act 2000 has allowed local councils to authorise 8,500 acts of covert surveillance in only two years (as an investigation by Big Brother Watch uncovered in May); and, but for doughty campaigners such as Shami Chakrabarti and David Davis, we might have had 90 days detention permitted in the mother country of the common law.
This litany of authoritarianism reveals a worrying gap in the protection we have traditionally expected from Parliament as the guardian of our precious legacy of freedom. But it also raises an intriguing question. Why is it that such a sustained attack on freedom has been so exactly contemporaneous with the earliest years of the HRA?
In answering this question, we must remember that the ECHR was designed not for nations with a long tradition of judicial independence but for a continent ravished by war, most of whose nations were emerging from decades of dictatorship – a role repeated after 1989 as former Warsaw Pact and USSR Republics joined the Council of Europe. Thus, the ECHR is no more than a minimum standard for countries with diverse judicial systems and a hugely divergent history of fairness in criminal and civil proceedings.
Is it actually the case that the HRA has allowed the last government to plead its respect for human rights knowing that the ECHR was ill equipped to protect common law standards unique to Europe in the British Isles? If that is so, should we think again about the fundamental standards to which all governments should be tied?
It is for this reason that Dominic Grieve has long campaigned for a British Bill of Rights. Not as an ill-considered response to attacks on human rights law but as a shield defending the common law freedoms essential to a fair criminal process and freedom from state regulation, control and surveillance. Rather than reducing the protection of the HRA, such a Bill would enlarge it after a similar period of consultation as occurred before the Canadian and Australian Bill of Rights were enacted. Such a process would indeed protect our freedoms; but it would also persuade the British people to value the freedoms developed thanks to the struggles of their ancestors, the wisdom of our institutions and of the men and women who have influenced them.