LAW AND LIBERTY CIRCLE ADDRESS: 08/10/24
Many of you will have heard me before, and, I hope will have read the series of lectures on legal and constitutional issues that I delivered as Lord Chancellor and then in the period since then. Since I saw you last, I have been having much fun as a Senior Fellow at the Harvard Kennedy School, where my project is the effect of AI and machine learning on the ethics of the administration of justice and the practice of law. I have also enjoyed engaging with students and professors at Harvard Law School and will be returning to speak there next month. I think you would have enjoyed my lunchtime lecture to the Federalist Society at Harvard last February, where in a comparative law discussion, I indulged in a lot of US-baiting about their post-rebellion notions of Separation of Powers in their deeply deficient written constitution.
I have also been following the Tory leadership contest and have taken a particular interest in the debate about ECHR membership. I am not going to repeat my arguments about that tonight, but will instead discuss issues that should be able to unite all conservatives, be they large c or small c. The central argument is the increasing reality that the language and process of law is being increasingly used to further geo-political aims. To say that I think that this is a bad thing is an understatement. The over-use of forums such as the ICJ or ICC for the resolution of issues that are either best or first dealt with domestically, bilaterally or on the floor of the UN Security Council or General Assembly, has been exemplified by, for example, South Africa’s case against Israel at the ICJ, Mauritius’s case against the UK in the same Court and the issuing of arrest warrants in the case of Israeli political leaders by the ICC, an institution, which, by the way, I support, without a clear analysis of why Israel’s own independent and robust legal and judicial system is not able to deal with these serious matters.
I want to focus on the Chagos Islands, having led for the United Kingdom in the 2018 ICJ case brought against us by Mauritius, a country with deep financial and political links to the rising power in the Indo-Pacific region, namely China. Having studied all the documentary evidence from the UK government that we candidly disclosed, reaching right back to the 1960s, and then having presented it to the Court as part of my lengthy submissions, there is no evidence whatsoever that the soon-to-be independent Mauritius harboured any hopes or ambitions towards the Chagos Islands. The fact that the islands were administered as a dependency with Mauritius and the Seychelles did not drive the Seychellois government to make similar arguments to the one in Port Louis. It is not until the 1980s that we first see documentary support for a claim by Mauritius.
This supports our fundamental contention that this was a sovereignty dispute, which of course is not the sort of issue that should be heard before the ICJ in any event. Instead, the dispute was wrongly characterised as one of “decolonisation”, which then allowed it to be heard before the Court. There is, sadly, no doubt that when the Chagossians were removed from the islands, this was done in a manner which was harsh and cruel. Full apology and reparations for these actions have been made. We can’t be under any illusion that, in a world where colonialism is largely a thing of the past, international institutions are not going to view the status quo as ideal. You would be then forgiven for assuming that the question of self-determination by territory residents would be the determining factor, but in this case, something else was at work. In an age where the UNs political forums seem paralysed and sclerotic, activism before the Court is being allowed, against a backdrop of political activity by the likes of China, who are hostile to the continued US presence on Diego Garcia. Secondly, the fact that this was an advisory judgment only seems to be totally ignored by those who are suggesting that our non-compliance of it was a breach of international law. The decision by the UK to surrender sovereignty, at a time when the potential role of the Diego Garcia base in the region may well become key, is politically naïve and represents a complete U turn from our previous approach to these types of forum dispute. I believe that this capitulation makes challenge over the Falklands, Gibraltar and other overseas territories more likely. Law will be used as politics by other means.
Coming back home, one area where our highest Court, has in the case of Nicklinson for example, properly declined to allow the law to do the work of Parliament and politics, is on the question of Assisted Suicide, or assisted dying as many call it. My central argument, however, is no matter how much the court will try to keep away from the politics of morality, there is a danger that it will be drawn back into it. As the debate heats up, with a new Bill being introduced in this first session of the new Parliament, I couldn’t help but think about the famous argument about law as the enforcement of morals that was characterised by the disagreement between Lord Devlin and HLA Hart back in the 1960s which then further developed in the 1970s. Devlin’s central argument, that when it came to the criminal law, there was no general principle that areas of private morality were not the business of the law, but that recognised immoralities that call forth a “real feeling of reprobation” would be where the criminal law must intervene, whether they were public or private, for example the criminal law of bigamy or incest.
Even though Devlin reminded us that he believed that that this approach should run hand in hand with toleration of the maximum amount of freedom, the danger of trying to apply a universal and future-proof definition of morality always seemed to be a huge obstacle to me, and my view of Devlin is inevitably affected very adversely by the horrific revelations from his daughter about his own abuse of her and, to a much lesser degree, his rather cruel and unusual book about the Bodkin Adams trial over which he presided, “Easing The Passing”.
What I want to focus on, however, is the central tenet of HLA Hart’s rebuttal argument to Devlin, which in essence was that the law was not about the enforcement of universal morals, but about protection from harm, consistent with the upholding of freedoms. Hart’s argument that the criminal law should not be the enforcement of a patriarchal moral position, but instead should be the necessary limitation of freedom to prevent harm, either to the victim or more widely. Recent debates about reform of the law of criminal nuisance and public order have all been about the curtailment of liberty because of harm caused to most other people not involved in the disruptive protest, for example.
The weakness with Hart’s position is the question of harm itself. How is it to be defined? It can’t be limited merely tangible harm to individuals, but surely must include wider societal harm. This is important because our criminal sentencing law has continued to evolve in the direction of including harm as a key element in determining the seriousness of an offence, alongside the more long-established factor of culpability. In Sentencing Guidelines, these two fundamental factors will determine the category of offending before aggravating or mitigation factors are considered.
When it comes to the reform of the law of assisted suicide, the question of what we mean by “harm” in my view must be clearly addressed. Those in favour of change cite their view that the law currently permits real and acute harm to be caused by people who are dying in pain or without dignity. Understandable and deeply human. Is there not, however, a wider question of harm that must be addressed by those who want change? Is it not harm to the notion of the absolute value of human life in whatever form it comes, which is particularly relevant to disabled people. Matthew Parris’s deeply disturbing but honest comment piece in The Times several months ago exposed this issue. In essence, he challenges the notion that human lives have equivalent value and that extreme infirmity and old age, which are increasingly unaffordable, justify a change in approach to human life itself.
The experience of Canada, where assisted suicide for terminally ill patients was then expanded to those with a “previous and irredeemable condition”, has been an alarming one, and I wrote about this on Conservative Home back in April. In short, there will be harm-real, irreparable, irretrievable harm – both individually to the most vulnerable people in our society and collectively to the way in which we judge the value of the lives of others, if we proceed along this route.
If HLA Hart’s definition of “harm” is to have real meaning here, then it should apply protections to the minority where the risk isn’t merely an inhibition on flash mob protests, but the ending of life itself. In other words, you don’t need to be a Christian like me to believe that the reform of assisted suicide legislation presents real dangers.
In an age when politics often masquerades as law, and law as politics, we had better not be naive as to the legal consequences of this, and how statutory definitions themselves will be the subject of, you guessed it, litigation. If a reformed law is unclear and ambiguous as to its ambit and aims, then the courts will be used.
Rather than denying the importance of judicial review and challenge as one of the essential checks and balances in our constitution, however, conservatives will be best advised to use it, whilst clearly making the case to our courts that, unlike the activist left, we do not seek to conduct politics by other means. By selecting only those matters that conform to our notions of law and politics, we will be able to make our case all the more powerfully.
ENDS
Rt Hon Sir Robert Buckland KBE KC is a practising barrister and Senior Counsel at Payne Hicks Beach LLP. He was Conservative MP for South Swindon from 2010 to 2024, Solicitor General from 2014-19 and Lord Chancellor & Secretary of State for Justice 2019-21. He was Secretary of State for Wales in 2022.
