The Rule of Law…and Harriet Harman QC

Mosaic representing both the judicial and legislative aspects of law. Woman on throne holds sword to chastise the guilty and palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies armor of righteousness and wisdom.

Lord Phillips, soon to be president of the UK Supreme Court, has been attending the QatarLaw Forum. Joshua Rozenberg has an interesting piece in the Law Society Gazette ‘Gavels not guns’ in which he summarises the points made by Lord Phillips and draws attention to the curious matter of Harriet Harman QC, a former practising solicitor, and her enthusiasm for changing the law restrospectively.

Summary from The Gazette

Professor Professor Pierre Legrand of the Sorbonne in Paris stressed that the rule of law should not be regarded as a technical framework disseminated by benevolent people who understood the way of the world. If the rule of law was to operate persuasively across cultures and traditions, it had to take account of local circumstances, values and legitimate expectations. ‘There is no one-size-fits-all model,’ he said, ‘and indeed there should not be’.

Lord Phillips agreed that ‘the search was not for identical laws or legal procedures’. Phillips set out six broad propositions by which adherence to the rule of law was to be judged. Nothing less than the survival of the world depended on them, he said. Huge international pressures were building up, both environmental and political. There were only two ways in which these tensions would be resolved. ‘One is war and the other is law.’

“Without a universal commitment to the ultimate authority of law – law founded on principle and administered through independent, stable and respected judicial systems – the world as we know it is not going to survive.” Lord Phillips said.

Rozenberg writes: “Which brings us to Harriet Harman. One of the Phillips principles is that the rule of law requires constant vigilance. ‘It is not a luxury item that can be put away in the cellar in times of emergency, to be brought out again when things get better,’ he said.  Phillips thought bankers and other ‘fat cats’ who had received apparently ‘obscene’ bonuses should face sanctions if they had breached their legal duties. But not otherwise – ‘what is not acceptable is to attempt to punish them by retrospective legislation or by media blackmail’. Everyone present understood this to be a reference to Harman, who had insisted that the law would be changed to deprive Sir Fred Goodwin of his pension from Royal Bank of Scotland. Labour’s deputy leader said at the beginning of March that Goodwin’s contract might be enforceable in a court of law ‘but it is not enforceable in the court of public opinion; and that is where the government steps in’.”

Harriet Harman is not a stupid woman.  Quite the opposite – but it was curious to hear her express these views in connection with Goodwin.  The so called Court of Public Opinion is a very dangerous concept, an ‘unruly horse’ as Lord Denning and others (albeit talking about public policy) put it many years ago.

I tend to agree, as most will I suspect, with Lord Phillips’ statement: “‘Judges and lawyers have a particularly important role to play in ensuring that popular emotion does not subvert the rule of law.”

There is a wider issue here and it is that of respect for the law. The rule of law can only work if those subject to the law respect it.  This  applies both to domestic and international law. For good law to work there must be consensus – it may not be perfect, but at least is is agreed at international level between states and in a domestic setting through the electoral process.

Democracy, with all its inherent failings, allows men and women to be elected to represent our interests as a nation, as a people, to an agenda the particular political party in power sets out in a manifesto. When governments depart from their manifesto, they may well run into dissent from the electorate.  The European referendum promised by Labour is but one illustration of the phenomenon.

There has been a tendency in recent years to bring out new laws to react to events: the counter terror laws, an illustration of these laws.  Policy made on the run, on the hoof, without expert and experienced review can lead to some badly thought out laws – quite apart from the problem of the state, or de-centralised organs of local government,  then misusing those laws to their own needs and ends.

We have far too many new and ill thought out laws – some deeply unpopular with different parts of society.  By way of simple and possibly emotive example – the Hunting Ban laws are so badly drafted that the Police have, effectively,  given up trying to enforce it.  The intrusion into our lives through DNA databases, identity cards, legislation permitting several hundred agencies to share information  – perhaps kneejerk over reaction to the perceived terror threat – are deeply unpopular with many in this country from all political persuasions.

When people start to lose respect for the laws, it is but a short step to losing respect for law and enforcement then becomes more difficult;  ultimately leading to protest and, possibly, riot.  The Poll Tax law of twenty years ago is a classic illustration of what happens when respect for law is lost.

China knows how to enforce Law.  They did it twenty years ago in Tiananmen Square.  A man with a shopping bag standing in front of the tanks may have held them up – but not for long.   Lord Phillips is right… the rule of law is preferable to war but, in a domestic setting, it is the politicians who bear the ultimate responsibility for ensuring that our laws meet the needs of the majority and are not drafted to suit the interests of a state hell bent on control.  The rule of law can only work, ultimately, through consent and support.