Meanwhile a second anti-state battleground had opened up, as libertarians of right and left attacked the government for Big Brother-like interference with the privacy and freedoms of the citizen. Labour’s plans to introduce identity cards, to allow police to hold terrorist suspects without trial for 42 days and the widespread use of CCTV cameras in public places were seen by conspiracy theorists as sinister encroachments on ancient civil liberties.
No matter what you may think of the Human Rights Act and the European Convention on Human Rights, Jack (Boot) Straw is rather dishonest and does not have the answers.
… But despite his love of this traditional pageantry, in an interview with the Mail he leaves no doubt that his in-tray as Justice Secretary is groaning with all-too modern problems: the future of the Human Rights Act, the worrying drift towards a law of privacy,
I’m not entirely sure what’s worrying about a law of privacy, except for newspaper editors, such as Paul Dacre of the Daily Mail, who may need to figure out a new source of revenue.
and what to do about our increasingly litigious culture.
Mr Straw is quietly fuming about the proliferation of ‘ambulance-chasing lawyers’. He has spoken out before about the ‘scandalous’ charges imposed by lawyers using ‘no win, no fee’ rules. These can allow them to waive fees in exchange for a share of any awards.
They were introduced by Labour to help the poor gain access to justice but have been exploited by unscrupulous solicitors who encourage clients to make improper and often costly personal injury claims.
It is a problem he is fighting even now in his department. Workplace compensation claims are a major bugbear of his. He has ordered the services he oversees, including prisons and the courts, to contest every single one.
Even when in the wrong?
… As a former barrister who now oversees the legal system, Mr Straw is surprisingly critical of his profession and is particularly exercised by the abuse of the £2billion legal aid system by ‘imaginative lawyers’.
He says: ‘The fact is that we’ve had in this country in the last 25 years an astonishing growth in the number of lawyers and also in legal aid.’
Of course, he doesn’t mention the proportion of that £2bn that is ‘abused’. Like him, I cannot tell you how much is abused but I can tell you it will be less than 57%, because only 57% is spent on criminal defence.
Fresh from a recent visit to India, he calculates that England, with 120,000, has at least three times more lawyers per head of population than India, which has 850,000.
He isn’t suggesting a cull, but he argues that with the recent cap on legal aid there are now too many lawyers chasing a limited amount of business. And they won’t thank him for suggesting that ‘their imagination tends to expand’ as they find novel ways of claiming fees.
Presumably the market will ‘cull’ the numbers, so I’m not sure there is anything to get too worked up about.
‘Although it has flattened out recently, legal aid rose further and faster in the 80s and 90s than any other social service,’ he says. ‘We now spend as much on legal aid as we do on prisons, which is extraordinary.’
He raises a wider concern, that as a country we are becoming overlitigious. ‘I’m concerned, and so are many senior lawyers, about those operating at the margins of acceptability, the ambulance chasers and those using no-win no-fee,’ he says.
Is he surprised that ten years on, the Human Rights Act which he brought in is so unpopular? For a moment he struggles to answer, then asks an official to pass him a copy of the act: ‘It’s on that pile of other legislation for which Straw’s a culprit,’ he laughs, suggesting that he is long accustomed to being blamed for unpopular laws.
He is quick to defend what is arguably one of the most far-reaching - many would say damaging - pieces of legislation introduced by Labour. He argues that the act has suffered unduly in the public’s perception in the aftermath of 9/11 as Islamist militants have used it with great success to avoid deportation.
It is an ‘Aunt Sally’, he says, often blamed unfairly for problems which are in fact caused by other laws and judgments - quite a few of which he conveniently dates back to the Tories.
Hmm, presumably cases such as Chahal v UK, which was a landmark in the issue of not being able to deport people to countries where they face a real risk of torture, no matter what their crime, but I’m not sure what relevance the Tories have to European Court judgements. Indeed they contested this particular case against Chahal.
And he claims that people don’t tend to notice when the Human Rights Act actually does good in helping to defend individuals from unacceptable abuse.
Well, that’s probably true, because the papers only tend to write about things that go ‘wrong’ with it, rather than things that go right.
While taking care not to say anything which would appear to be an overt criticism of the judges, he has strong views on their recent performance. As befits one of Westminster’s most wily operators, Jack Straw is the master of the discreet stiletto.
Some judges have been ‘too nervous’ about deporting terrorist suspects, he says, when there was no reason to believe they were at risk of death or torture - which would preclude their deportation under the act.
Well, there are no case citations here so there’s nothing to go on – there is no evidence. I can tell you, however, that I’ve read a few judgements and judges deport unless there is a real risk of torture or some other breach of the Convention – they don’t have a choice in this, it is not up to them to change the law, that is the job of our legislators.
And he is ‘frustrated’ by some of the judgments which have encouraged voters to conclude that the act is a ‘villains’ charter’ which favours the rights of criminals over those of victims.
There is no judgement that says the rights of a criminal takes precedence over those of his victims. There is no case in which the rights of the criminal has been set against the rights of his victim – our criminal justice system just does not work like that. But we must be fair to the accused, and any Justice Secretary worthy of the name should be making that clear.
The outgoing Director of Public Prosecutions said in October that “Rhetoric which suggests that [rebalancing] can be achieved will never deliver. It misleads and prosecutors should stay away from it”.
Jack Straw is trying to mislead you.
But it is not just the issue of human rights which preoccupies him. A succession of controversial High Court libel judgments - most notably in favour of Formula 1 boss Max Mosley who won a libel action against the News of the World despite being exposed as serial user of prostitutes - has raised alarm bells that judges are quietly legislating for a privacy law.
HeadofLegal dealt with this at the time: “as for the idea that all this has happened by stealth - give me strength! Dacre only thinks a law of privacy is “being” introduced by the back door because he is ten years behind the curve, as they say. Everyone who was paying attention at the time knew that the Human Rights Act 1998 - 1998 - gave effect to the right to respect for private life, and the press certainly knew it, because they fought for and obtained concessions from the government during the bill’s passage. Never was there a clearer case of Parliament having legislated in full knowledge of what it was doing.”
Mr Straw shares the concerns of those who are worried about a drift towards a privacy law, although he argues it was already happening before the Human Rights Act came in.
Er yes, possibly because we signed and ratified the European Convention in the early 50s.
But he is cautious. He thinks the time has come for a select committee of MPs to study the issue, and now accepts that the Government might have to intervene, possibly by appointing a formal commission to make recommendations. ‘There’s certainly a good case for a select committee to look at it and, in due course, for a commission,’ he says.
Mr Straw’s unfinished business is the plan for a new Bill of Rights and Responsibilities promised by Gordon Brown when he came to power, but he concedes it might never materialise.
The project has struggled to get off the ground in the face of widespread scepticism - and quite a bit of derision - from Cabinet colleagues. Part of the problem is timing. Constitutional changes are difficult to sell at the best of times; in the teeth of a recession no one wants to listen.
Last month he was ‘panned’ by ministers around the Cabinet table who wondered, not without justification, if such tinkering was the right priority for a Government fighting for its political life.
But Mr Straw argues that a document setting out what is expected of every resident, from obeying the law to loyalty to the country, would help reverse the drift towards selfish individualism and personal rights in favour of a much healthier commitment to the wider society.
‘What we want to do,’ he explains, ‘is generate a debate about whether there should be a declaration of responsibilities and rights which grow together, the kind of rights we are owed and the rights which we owe, in a single document.
‘It’s about identifying values that bind us and what it is that makes Britain great, that makes the whole of us greater than the sum of its parts.’
Well, casting aside the centuries of talk about liberty that makes all that a nonsense, we already know that “Human rights are rights which people enjoy by virtue of being human: they cannot be made contingent on the prior fulfillment of responsibilites … the ECHR and other human rights instruments already provide for certain rights to be limited when justified by legitimate, competing interests”.
Any interference with any right or freedom must be necessary and proportionate.
Now, I confess I have some sympathy with the view that we should be allowed to deport ‘preachers of hate’, terrorists, Home Secretaries, and other people who have been fairly determined as undesirables, whether they face a real risk of torture or not (probably should depend on their crime) – I’m not sure of what a ‘just’ answer is here.
But I will tell you this: rightly or wrongly, we will not be allowed to deport such people under such circumstances while we remain signatories to the European Convention on Human Rights – and, by extension, members of the Council of Europe, and (I think) the European Union, for which our signature remains a condition of our membership.
So if Jack Straw is saying he is going to introduce a law that will change these things, he hasn’t got a chance unless it involves us renegotiating those arrangments – which, on the face of it, would involve withdrawing altogether. And, while many readers may not have a problem with that, they must surely recognise that it is easier said than done.
Don’t fall for it!