{"id":15488,"date":"2013-06-10T12:38:38","date_gmt":"2013-06-10T12:38:38","guid":{"rendered":"http:\/\/mostafa.openonline.co.uk\/?guid=4285753d7331ac7e6e46b579c4fd1a08"},"modified":"2013-06-10T12:38:38","modified_gmt":"2013-06-10T12:38:38","slug":"speech-the-role-of-lawyers-in-public-life","status":"publish","type":"post","link":"https:\/\/mostafa.openonline.co.uk\/?p=15488","title":{"rendered":"Speech: The role of lawyers in public life"},"content":{"rendered":"
\n

In inviting me to speak this evening, Caroline Docherty,
\nthe Deputy Keeper of the Signet, reminded me that last
\nyear\u2019s speaker, Michael Portillo, made the front page of the
\nScotsman the following day \u2026 and went on to add, \u201cbut that
\nis by no means a requirement\u201d.<\/p>\n

If my memory serves me well, Mr Portillo\u2019s remarks
\nincluded eulogies about our First Minister. I\u2019m sure if I
\nwas to follow suit, I would easily get a headline in
\ntomorrow\u2019s Scotsman. But I\u2019ve never fully subscribed to
\nthe maxim that all publicity is good publicity.<\/p>\n

Nevertheless, we can note the increasing media profile of
\nlegally related issues.
\nHistorically, they seemed to focus exclusively on the latest
\nnews from the High Court. But more recently, newspaper
\ncolumns have carried reports on extraditions of alleged
\nterrorists, compensation for delayed appeals, prisoner
\nvoting rights, the role of the Supreme Court in Scottish
\nhuman rights cases.<\/p>\n

In a similar vein, many lawyers in Scotland and elsewhere
\nhave contributed actively to the debate on the
\nindependence referendum thus far, albeit coming from
\ndifferent political perspectives. Law academics have never
\nbefore featured so regularly on Newsnicht.
\nFacilitating the debate on Scottish independence, the Law
\nSociety of Scotland last week hosted an over-subscribed
\nevent in the largest Committee room in the Houses of
\nParliament. I was pleased to take part and can confirm
\nthat the contributions from the panellists and from the
\nfloor, were robust and covered new as well as old ground.
\nOne contribution, from a Canadian visitor, was, I thought
\nquite apposite. She said that the question for debate
\nshould be \u201cWhat is it that Scotland can contribute to the
\nworld that it is at present prevented from contributing?\u201d
\nI like the way that question is framed.<\/p>\n

Those of us who believe in Scotland\u2019s continuing place
\nwithin the UK will be arguing that the United Kingdom is
\ngood for Scotland, and that Scotland is good for the United
\nKingdom.<\/p>\n

We will also be arguing that Scotland makes a greater
\ncontribution in the international sphere as part of the
\nUnited Kingdom than it could do if we acted alone.
\nThis evening, I\u2019d like to focus specifically on the
\ncontribution that we as Scots lawyers can make to some of
\nthese most pressing social and political issues facing us at
\nthis time. <\/p>\n

We meet tonight on a date – 9 November – that is rich in
\nhistorical significance.
\nOn this day in 1989, for example, Berliners were
\ncelebrating – indeed the whole world was celebrating –
\nthe fall of the Berlin Wall. 1970 saw the passing of General
\nDe Gaulle – and ten years earlier in 1960, John F Kennedy
\nwas e. lected President of the USA by the narrowest of margIns.
\nOn a sombre note, 74 years ago tonight, Austria and Nazi
\nGermany witnessed the horrors of the pogrom against
\nJewish people and property on Kristallnacht.<\/p>\n

And although there is a profoundly historic link, I suspect
\nit was only coincidence that on November 9th 1998, the
\nHuman Rights Act gailled Royal Assent. I supported that
\nBill as it went through Parliament and, indeed, I had long
\ncampaigned for recognition of the European Convention of
\nHuman Rights in British courts, so it was a momentous
\nday for me, when the rights, proclaimed in the aftermath
\nof world war, were brought home. Although, even then, I
\ncouldn\u2019t have anticipated that I\u2019d be the first minister to
\nexperience its effects following the decision on temporary
\nsheriffs!<\/p>\n

The Act hasn\u2019t been universally popular – it was never
\ndesigned to keep the Daily Mail happy, and in that it has
\nprobably not disappointed – but of course one of its
\nsignificant effects is to defend and protect the rights of
\npeople who are not always popular: the criminal accused,
\nprisoners, people awaiting repatriation \u2026 but it is a truth
\nseldom acknowledged that popular people are less likely to
\nhave resort to the protection of instruments such as the
\nEuropean Convention of Human Rights.<\/p>\n

But let us remember too, that promotion of the
\nConvention has also resulted in widespread changes all
\nacross Europe – for example, in some countries, the
\ndecriminalisation of homosexuality, the recognition of the
\nfreedom of religion in former Soviet countries, the
\nprevention of ill-treatment by the police and the removal
\nof military judges from civilian courts.<\/p>\n

And it\u2019s also worth reminding ourselves that the United
\nKingdom was the driving force behind the creation of the
\nConvention and that it represents, in a short document,
\nthe best traditions of law and the protection given by law
\nthat this country can offer from its long history of
\nconstitutional stability.<\/p>\n

Of particular relevance to my theme this evening is that
\nfact that the origins of the Convention illustrate the role
\nwhich lawyers of Scots origin can play on the international
\nstage, operating within the United Kingdom.<\/p>\n

In the immediate aftermath of the second world war,
\nWinston Churchill, by then out of office, toured Western
\nEurope at a time when British prestige and influence was
\nstill very much in evidence. It was during this tour that
\nChurchill began to call for European unity – and in an
\nimpassioned speech in Zurich in September 1946 he said:
\n\u201cWe must build a kind of United States of Europe. In this
\nway only will hundreds of millions of toilers be able to
\nregain the simple joys and hopes which make life worth
\nliving. \u201c<\/p>\n

Subsequent to that speech a \u201cUnited Europe Movement\u201d
\nwas formed in the UK, with representatives from all the
\nmajor parties at the time. One of its members was a Scot,
\nDavid Maxwell Fyfe, an opposition MP and lawyer, who
\nhad gained something of an international reputation for
\nhis cross examination of Nazi war criminals at the
\nNuremburg trials – most famously his cross examination
\nwhich secured the conviction of Hermann Goering. With a
\nparticular interest in human rights, Maxwell Fyfe attended
\na Congress of Europe in the Hague in 1948, and in his
\nmemoirs he records something which illustrates how the
\nworld must have looked to those delegates in the 1940S:
\nthose attending the Congress, senior political figures from
\nallover Europe, had to obtain their meals by the use of
\nfood tickets rather than currency, although it was by then
\nthree years after the end of hostilities. It was in that
\nshattered Europe that they took first steps to the creation
\nof a Council of Europe – and the Statute of the Council of
\nEurope was agreed in 1949.<\/p>\n

In the period between the Congress at The Hague, and the
\nfirst meeting of the Assembly of the Council of Europe,
\nDavid Maxwell Fyfe was involved in drafting the
\nConvention, with the assistance of academic lawyers from
\nOxford and Cambridge University. That first draft covered
\nwhat Maxwell Fyfe described as the \u201cbasic decencies of
\nlife\u201d – security for life and limb, freedom from arbitrary
\narrest, freedom from slavery and compulsory labour,
\nfreedom of religion, freedom of association, freedom of
\nmarriage, the sanctity of the family, equality before the
\nlaw, and freedom from arbitrary deprivation of property.<\/p>\n

By August 1950, the Assembly agreed the draft
\nConvention. The Times reported an important aspect of
\nthe new Convention: that it was not to be a collection of
\nmere aspirations and platitudes. It was to be matter of
\nreal, enforceable, law. The Times report says:
\n\u201cThe committee\u2019s insistence on the convention was based
\non the fact that it stated human rights not as vague
\ngeneralities, but in terms that could be enforced by a court
\nof law.\u201d<\/p>\n

That same week, Maxwell Fyfe himself wrote in the
\nObserver:
\n\u201cAfter a second blood-bath they are, on the Continent of
\nEurope, looking to international organisations by which
\nstates take joint action to buttress things which at the
\nbeginning of this century were taken for granted – the
\nabsence of arbitrary imprisonment, torture and official
\nmurder, the presence of freedom of thought, of religion, of
\nmarriage, and political association. Our lunatic century is
\nlooking for a way of guaranteeing ordinary people a
\nquz\u2022e t lizfe e , \u2026. \u201c<\/p>\n

Therein lies an insight into the mindset of people living at
\nthe halfway mark of the last century, particularly those
\nactive in public and political life, when the Convention on
\nHuman Rights was created. The century so far must have
\nappeared to be subject to a recurring madness, and those
\nin a position to influence the future sought for their people
\nthe essential elements of \u201ca quiet life\u201d. And although
\nNazism and Fascism had been defeated, at a great cost in
\nterms of blood and treasure, another form of totalitarian
\ngovernment held sway across Eastern Europe and
\nappeared to threaten the rest of the Continent.<\/p>\n

The UK subsequently signed the Convention – the first
\ncountry to do so. The implications of the Convention were
\nstill being discussed in Cabinet at the beginning of 1951
\n(we know from the Cabinet papers which are now in the
\npublic domain).<\/p>\n

One of the concerns at that time – and one which
\nresonates today – was the Right to a Fairly Elected
\nLegislature and, in particular, the basis on which elections
\nmight be conducted. The Cabinet minutes refer to (and I
\nquote) \u201c \u2026 the possibility that the Article as drafted might
\nrequire us to adopt an electoral system of proportional
\nrepresentation.\u201d Heaven forbid! It seems that the
\ngovernment of the day, despite its radical credentials,
\nfeared agreeing to one sensible democratic proposal for
\nfear that it might lead to something even better.<\/p>\n

Perhaps there was also an element of xenophobia in their
\nhorror at a proportional representation system of voting,
\nsomething which was definitely regarded as foreign at the
\ntime.And yet, we often, in time, come to accept such \u201cforeign\u201d
\nnotions as useful.<\/p>\n

One lesson that I take from this is that while lawyers of
\nScottish origin have contributed much to the protection of
\nhuman rights and the promotion of European union, we
\nhave also learned a great deal in the process. We have
\nnot been isolated. We have chosen instead to play a full
\nrole as part of the United Kingdom, bringing our own
\nideas and approaches to the table, and absorbing much
\nfrom what others have to offer.<\/p>\n

Take referendums as another example of this. You will
\ngather that I am now about to turn to the large grey
\nmammal with the long trunk in the room. It is sometimes
\nsaid that Winston Churchill said that referendums were
\nthe \u201cdevice of despots and dictators\u201d. It was in fact his
\npolitical opponent Clement Attlee who made the
\nconnection between the referendum and the dictator, with
\nsome justification considering the use of plebiscites in the
\nrecent past. Attlee said:
\n\u201cI could not consent to the introduction into our national
\nlife of a device so alien to all our traditions as the
\nreferendum. \u201c<\/p>\n

\u201cAlien to all our traditions\u201d is quite strong meat, but it was
\nnot an unusual point of view, and perhaps echoes the
\nwords of the constitutional lawyer A V Dicey who once
\nwrote \u201cThe word \u2018referendum\u2019 is a foreign expression
\nderived from Switzerland\u201d.<\/p>\n

There is something in Dicey\u2019s tone which suggests that
\n\u201cforeign\u201d and \u201cSwitzerland\u201d are not to be greeted with
\napproval. But in fact in the course of his long career as a
\nconstitutional theorist, Dicey progressed from advocating
\nabsolute Parliamentary sovereignty to advocacy of
\nreferendums in situations where some fundamental
\nconstitutional change was proposed – in particular he was
\nconcerned, as a Liberal Unionist, that there should be no
\nchanges to the Acts of Union with Ireland.<\/p>\n

We have, since 1975 at least, now come to accept
\nreferendums as being part of the process of constitutional
\nchange. We have seen two referendums in Scotland on
\ndevolution – in 1979 and 1997, as well as other UK
\nreferendums, such as the voting system referendum last
\nyear.<\/p>\n

I welcome, as a lawyer and as a UK government Law
\nOfficer, the agreement we now have with the Scottish
\nGovernment for a section 30 order to ensure a sound legal
\nbasis for the referendum on independence. The last thing
\nwe needed was for proposals to be brought before the
\nScottish Parliament and then challenged in court.<\/p>\n

What began in January of this year with the publication of
\nthe UK Government\u2019s consultation was in many respects a
\ndiscussion about the law: did the Scottish Parliament have
\npower to legislate for an independence referendum or not?
\nI know that some have been surprised by how central
\nlegal arguments have been to the debate thus far. Yet I
\nthink this is to be welcomed. We are a country with a
\ngreat respect for the Rule of Law. And law and politics are
\nso often closely intertwined.<\/p>\n

This point was made eloquently by the Keeper of the
\nSignet Lord Mackay of Clashfern in evidence to a
\nParliamentary Committee. He was speaking in the context
\nof another difficult and controversial matter – the prisoner
\nvoting rights issue, but, more specifically, on the extent to
\nwhich Parliament and the courts should have regard to the
\njurisprudence of the European Court of Human Rights:
\n\u2018\u20181 would just like to say that our country has
\nembraced the rule of law for many, many
\ngenerations and it still is bound by the rule of law.
\nTherefore, when we have taken on legal obligations,
\nas we have under the Convention of Human Rights
\nand Fundamental Freedoms in Europe, the rule of
\nlaw requires us to obey the courts that are set up
\nunder that Convention whose judgments are
\nbinding. I do not myself regard politics and law as,
\nin any way, in conflict because politics in our
\ncountry should be carried on under the rule of law.
\nIndeed, that is how it happens.\u201d<\/p>\n

I think that is as it should be, and I am confident that the
\ncontribution that lawyers made helped us to get to the
\npoint of agreement on the important issue of the legality
\nof the referendum.<\/p>\n

Having dealt with the process, I now look forward to the
\ndebates that we will have on the substance. I think recent
\nexperience shows that legal issues will continue to be
\nimportant, and as lawyers we can certainly not switch off
\nfrom the debate.<\/p>\n

Let me provide two specific examples of what we as
\nlawyers might contribute, whatever our political
\nperspective.
\nFirstly, the devolution settlement continues to be widely
\naccepted but poorly understood. As lawyers I am sure we
\nrecognise that independence is not simply an extension of
\ndevolution. Instead, it is a fundamentally different legal
\nconstruct. It concerns me that this is not always properly
\nunderstood.<\/p>\n

The devolution settlement was drafted, implemented and
\nis now operated on a day to day basis with the support of
\nlawyers. The Scottish Parliament rightly has the power to
\nlegislate for devolved matters – power that is extended
\ngreatly by the Scotland Act 2012. Yet in many cases the
\nScottish Parliament looks to the UK Parliament for
\nsupport. It asks the UK Parliament to legislate so that
\n\u2022Scottish measures work effectively across these Islands.
\nAnd in many cases it consents to the UK Parliament
\nlegislating for Scotland in devolved areas, recognising that
\nthis will be a more efficient and effective than separate
\nlegislation. This is an advantage of devolution: flexibility
\nof approach and close co-operation between the
\nParliaments that serve Scotland.
\nAs the debate on independence proceeds, let\u2019s ensure that
\nwe bring clarity to what devolution actually means, what it
\ndelivers, and how it can continue to evolve.<\/p>\n

Secondly, many issues associated with the prospect of
\nindependence have both a political and legal content. We
\nshould not allow the legal aspects to be overlooked. Most
\nrecently, the debate has focussed on whether an
\nindependent Scotland would automatically be a member of
\nthe EU. Some may now regret being quite so forceful in
\ntheir assertions about Scotland\u2019s continuing membership
\nof the EU. Assertion is not enough: we need to consider
\nthe detail, and look carefully at the law.<\/p>\n

The UK Government has already set out its initial
\nconclusions on this issue following a careful consideration
\nof the issues. As I said at the Edinburgh Centre for
\nConstitutional Law last month:
\n\u201cthe more likely conclusion – and the one which people
\nmust weigh in the balance before casting their vote – is
\nthat the UK would carry on with its international
\nobligations, including EU membership as at present. And
\nthe likely consequence is that Scotland would have to
\napply to join the EU. That is, if it joined the EU, it would
\ndo so on terms, and it is those terms which would create
\nconsiderable uncertainty about the future of Scotland
\noutside the UK\u201d.<\/p>\n

The UK Government will continue to do further work on
\nthese issues, supported by a wide range of legal experts,
\nmany of whom have contributed to the Legal Forum that I
\nestablished in the summer to provide the Government
\nwith external input and challenge.
\nBut this work is not simply the preserve of a select group
\nof experts. Each of you here, as lawyers and as members
\nand guests of this illustrious society, have a role to play in
\nelevating the tone and content of the debate, and bringing
\nclarity to many of the novel and challenging legal
\nquestions prompted by the forthcoming referendum.<\/p>\n

I recognise that my political perspective will not be shared
\nby everyone in this room. But, as a community of lawyers,
\nlet\u2019s not shirk from making a strong and informed
\ncontribution to the mo~t pressing issues that face us at this
\ntime. Following the example of Maxwell Fyfe, that may
\ninvolve contributing to the protection and development of
\nfundamental rights within the UK, and beyond these
\nshores. For many of us, it will involve contributing to the
\ndebate on our constitutional future. Whatever our
\nperspective, let\u2019s ensure that our voice as lawyers is heard,
\nand that these issues are debated with intelligence, clarity
\n– and a good measure of grace.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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