Hello goodbye

Roger Smith bids farewell to an old hand & welcomes some new blood over the pond

Jack Straw took the opportunity of his retirement from Labour’s front bench to publicise his forthcoming memoirs. These, he promised, will not be of the “kiss and tell” variety. Few would have supposed otherwise. He did not serve Labour’s full time in office without considerable skills of discretion and diplomacy.

Immediate press interest centred on Mr Straw’s views on the Iraq war. Though formally supporting the decision to invade Iraq, he told the Chilcot inquiry that he was “haunted” by the decision. At about the same time, a “secret and personal” letter that he had written to Tony Blair materialised in which, just before the start of the second Gulf War, he indicated his doubts about the course on which his prime minister was so clearly determined. Jack Straw has seldom been accused of naivety.

The importance of Jack Straw to the law was in his reward for not resigning with Robin Cook over Iraq: appointment as the first lord chancellor to sit in the House of Commons since Sir Christopher Hatton more than five hundred years ago. Tony Blair’s proposals for the removal of the lord chancellor in its ancient form—and his former mentor, Lord Irvine, as the then current incumbent—were highly controversial. The House of Lords nearly derailed what became the Constitutional Reform Act 2005 and, in a compromise, the title was retained and certain other restrictions imposed on the post.

Jack Straw proved the doomsayers were wrong. A member of the House of Commons is perfectly capable of the necessary gravitas and sensitivity for the post. The handover to Ken Clarke has also been a smooth transition to another politician of substance. Initial scaremongering suggested that the judges would be handed over to the tender mercies of David Blunkett. Prime ministers proved wiser. The British constitution is, after all, able to manage perfectly well with a democratically elected politician responsible for matters relating to law and justice.

Three cheers for women

Elena Kagan finally joined Sonia Sotomayor and Ruth Ginsburg on the US Supreme Court. To a foreign observer, one of the oddest hurdles to her nomination was an allegation of over-interest in international law.

Senator Chuck Grassley of Iowa was shocked that first year law students at Harvard University, where Justice Kagan was dean, had to study the subject. Senator Tom Coburn of Oklahoma—who holds the combative idea that Harvard Law School is a “Marxist sanctuary”—and Senator Jon Kyl of Arizona saw no use to international law in the US courts. The latter objected on the grounds that an interest in international law “suggests that you could turn to foreign law to get good ideas”. This level of attack was substantially below what the capable Justice Kagan could deal with in her sleep. She told the xenophobic senators that she welcomed good ideas wherever you could get them.

The spat served as a stimulus to Justice Ginsburg. She chose at the end of July to give a lecture on the value of a comparative perspective in constitutional adjudication. This was a feisty response to the attitudes of the Republican senators and certain of her colleagues, notably Justice Scalia.
She traced with pride a concern with the “opinions of mankind” from the drafters of the Declaration of Independence through to recent decisions such as Roper v Simmons in which the court acknowledged “the overwhelming weight of international opinion against the juvenile death penalty”.

The approach of our own senior judges has been much more open to judgments from other jurisdictions. This may, in part, arise from our greater openness to international treaties such as those that established the European Union and the European Convention on Human Rights. British legal and judicial culture would stand very much with Justice Ginsburg. In one of his essays in The Rule of Law (Allen Lane, 2010) for example, Lord Bingham identifies twelve “milestones” in the development of the rule of law. The first seven arise from Britain’s domestic history but the last five—from the constitution of the US to the Universal Declaration of Human Rights—come from international sources.

And finally

The internet was ablaze in August with the antics of one Steve Slater. Controversy has raged over his case, including whether the state of New York was right to grant Mr Slater free legal aid to defend two charges of criminal mischief, two of reckless endangerment and one of criminal trespass. Mr Slater faces a maximum of seven years imprisonment.
The basic facts of the case are in little doubt. Mr Slater was a flight attendant on the JetBlue airline. After an altercation with a passenger, Mr Slater articulated his feelings in colourful language via the public address system; grabbed a couple of beers; deployed the emergency chute as the plane came to rest at JFK airport in New York; and, shouting: “That’s it. I’ve had it”, exited the aircraft down the chute.

Mr Slater was arrested on the tarmac and instantly become an internet sensation. A simulation of the events is available on YouTube with a commentary in Chinese. T shirts are available with the logo “Free Steven Slater” and luggage tags with “Steve Slater: an American hero”. Mr Slater’s own response is that “something here has resonated with a few people. And that’s kind of neat”. JetBlue will not comment. Mr Slater’s public defender is presumably preparing mitigation and wondering if he could get away with a defence of provocation.

Roger Smith is director of JUSTICE

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