Something new, something old

On the very day that the spanking new Supreme Court opened for business, legal tradition reasserted itself. Over the flagstones that had witnessed the trial of Charles I in Westminster Hall walked the elite of the legal world as they made their way to lunch after the traditional service for the opening of the legal year.

And what a sight they were. Supreme Court justices wore their new gold-embellished robes—slightly too reminiscent of doormen at the posher type of hotel. Lady Hale was resplendent in the black silk bonnet that she had apparently designed herself. High Court judges wore a magnificent combination of scarlet and fur.

Circuit judges were clothed in a fetching purple. And, at the back of the procession, and consequently having to wait quite a time for their food, were the district judges, tribunal chairmen and assorted others. The colour (though not, to be fair, the food) had rather run out for them. The lower judiciary have to make do with suits or, at best, a continental-style black gown with coloured flashes.

The event was not without a whiff of modern politics. Jack Straw was circulating as the current Lord Chancellor in the gold-braided outfit in which he always looks a little uncomfortable. Quietly moving about was also Dominic Grieve MP, his Opposition shadow. He was masquerading as a jobbing Queen’s Counsel but is so close to taking over Mr Straw’s position that he must almost be able to feel the weight of the gown that may so soon be his.

The Supreme Court opens

There was a bit of jockeying over what would be the first case to be heard by the Supreme Court. A prediction from Matrix Chambers that its barristers would be the last to be heard in the Judicial Committee of the House of Lords and first in the Supreme Court was scuppered at the last moment. Blackstone pipped them to the post with urgent applicants in relation to the child involved in the Jewish Free School case.

The first full hearing, however, could not have been better chosen to highlight the constitutional role of the court. The issue in A and others v HM Treasury is the power of the government to freeze the assets of those suspected of terrorism. This can be done via statutory powers but the government chose to use Orders in Council.

The effect is that the individual concerned finds all his assets frozen in the UK and, in a Kafkaesque fashion, no way of challenging or appealing the order. Nor does Parliament have any opportunity to discuss the individual case or the general policy. The lack of fairness in the choice of such a procedure precipitated JUSTICE to be a third party intervenor in the case.

In selecting such a significant case to begin its work, the UK Supreme Court has certainly shown more recognition of its potential constitutional importance than did its US equivalent. Its first trial was West v Barnes, a case that concerned whether Mr West had to travel to Rhode Island to issue his proceedings or whether Philadelphia, the then site of the court, would do.

Bill of Rights

David Cameron put replacement of the Human Rights Act 1998 by a Bill of Rights “to strengthen Britain’s traditional liberties” at number three of his Sun key top 10 pledges. Any hopes that this was a safe bet compared with number nine—renegotiate the EU’s Lisbon Treaty if there is time—were rather dashed by Liberty’s shrewd publication of Churchill’s Legacy: The Conservative Case for the Human Rights Act a few days later. This is written by influential Tories, Policy Exchange’s Jesse Norman and the Daily Mail’s Peter Oborne.

The theme of the pamphlet is that human rights are a perfectly coherent conservative project and have been from Churchill onwards. Thus, the authors provide support for the views of the leader that the Conservative Party could never bring itself to choose, Ken Clarke.

He characterised attacks on the Human Rights Act and European Convention as “xenophobic nonsense”.
JUSTICE held fringe meetings at all the three major party conferences jointly with the relevant association of party lawyers. These got a remarkably good turnout and featured Michael Wills, the Labour minister in charge of Labour’s bill of rights thinking, and Dominic Grieve for the Tories.

The meetings all had a common title: “A British Bill of Rights: thinking through the issues.” They were intended to sidestep the politics and ask what the conditions would be for an effective “British” bill of rights.

Since neither Northern Ireland nor Scotland show much interest then this really reduces to an English bill of rights. There is also a bit of a dearth of ideas for new rights to be protected. Both Labour and Conservative governments have attempted to make savings by abridging the usual example: right to trial by jury.

An interesting question is whether anything actually calling itself a “bill of rights” really needs to be based on a degree of consensus beyond that of one party. Politicians in all parties are not really in consensus mode at the present time: but the need for such agreement got more support than you might predict.

The Guardian called David Cameron’s proposals the Tory’s “42 days”, comparing them with Labour’s thwarted attempt to increase the period of pre-trial detention. Another comparison would be the Hunting Bill: a total waste of time. 

Roger Smith is director of JUSTICE

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