Sunday, 27 October 2019

Talk : Baroness Helena Kennedy on Populism and the Assault on Law

Timely and important talk recently by Baroness Helena Kennedy QC at the University of Nottingham on the subject of "Populism and the Assault on Law".

This post covers some of the points raised by Baroness Kennedy, together with a little added linkage and comment.

Baroness Kennedy

Looking back a couple of decades, Baroness Kennedy commented on the transformative effect of mobile phones and of how the EU single market increased freedom of movement, resulting in more dynamic markets, but lower wages in the destination counties. But open borders for business and labour also resulted in making it easier to move drugs, traffic people and perform acts of terrorism. These crimminal activities often took full advantage of the benefits of internet and mobile communication.

The Baroness mentioned the book "Dark Money" which describes how a network of very rich Americans have set up a network of institutions to influence government for their own benefit, to reduce regulation and taxes.

People in poor countries became more aware of how the "other half" lived and this, together with the effects of war, deprivation and climate change in their home countries, resulted in more movement of people. This, in turn, fed nationalism in the destination countries.

In the view of Baroness Kennedy, First-past-the-post has had its day, and it is time for some form of proportional representation. Labour voters in strong Conservative areas feel (rightly) that they are disenranchised, and vice versa.

Baroness Kennedy was chair (from 1992-97) of the electoral and constutional reform organisation Charter 88, who took their name from Charter 77 – the Czechoslovak dissident movement co-founded by Václav Havel.

Baroness Kennedy described how, in 2006, she worked with the Joseph Rowntree Foundation, and others, to investigate why there has been a decline in participation in formal politics and to make proposals to reverse this trend. The project involved many meetings, interviews and consultations with members of the public across the country and resulted in the "Power Report", which made 30 recommendations, including the following:

3. Limits should be placed on the power of the whips.

12. A responsive electoral system – which offers voters a greater choice and diversity of parties and candidates – should be introduced for elections to the House of Commons, House of Lords and local councils in England and Wales to replace the first-past-the-post system.

13. The closed party list system should have no place in modern elections.

25. The rules on the plurality of media ownership should be re-formed. This is always a controversial issue but there should be special consideration given to this issue in light of the developments in digital broadcast and the internet.

Baroness Kennedy pointed out that many people were now recognising that the neoliberal economic model (deregulate, lower taxes, remove welfare provision) has played a big part in our problems. In some places oligarchs have hugely enriched themselves at the price of the poor. CEO pay has skyrocketed, whilst that of ordinary people (and indeed of many entrepeneurs) has stagnated.

Large companies like Amazon are not paying their way, and are instead living on the back of the infrastructure (roads, police, education, health) that the taxes of ordinary people pay for.

The global financial crisis in 2007 should have led to a remodelled economy but instead led, in the UK to a policy of public service cuts and austerity. Meanwhile, easy movement of capital has meant that Governments are scared of raising taxes in case of capital flight.

All this needs to be told to understand why populism is growing.

Populism challenges law because it suggests simple solutions to complex problems - tiny soundbites such as "Build The Wall", "Sink The Boats" etc. See, for example Priti Patel's approach of talking only about harsh sentencing whilst ignoring the many causes of criminal behaviour, including drug abuse, poverty and poor education.

Populist governments often flout the law or try to capture courts. We should be concerned about this.

Judicial review is the process whereby Governmental actions that are an abuse of power, disproportionate or otherwise illegal can be challenged in the courts. It is a vital protection against the government abusing its power and an independent judiciary is a key part of protecting judicial review from being captured by government.

This is why, in Baroness Kennedy's view, it was so dangerous for the Daily Mail to describe the judges who ruled that invoking Article 50 required a Parliamentary vote as "Enemies of the People". It was concerning also that the Lord Chancellor (Liz Truss at the time), who should have defended the judiciary, did not adequately do so.

"Enemies of the People" - Daily Mail Nov 4th 2016

The attack by the Daily Mail (and others) is even more outrageous when one considers how widely respected the British process of judicial review is around the world. Baroness Kennedy described how, at a conference in the Far East, the entire audience applauded when the Baroness described how, in the UK, the Prime Minister could be held to account by the courts.

Baroness Kennedy commmented that the law needs to be value based and procedural (i.e. with checks and balances such as appeals) and added that one reason why some countries such as China has a poor human rights record was that they viewed rights as belonging to only some people, ignoring the human, social international courts and other rights that were important to justice.

Failing to have this broad, value based, system of law can result in inhumane system where judges are tasked with applying cruel laws, as was seen in the Nazi regime.

Some examples of judges who were working to ensure an independent judiciary and a fair justice system were mentioned : Tom Bingham and Susanne Baer.

The talk went on to describe how Populism was growin in Brazil, Poland and Hungary (where, under Victor Orban, there have been attacks on laywers who represent immigrants, and even on journalists who report on this.

And populism in the west emboldens populism elsewhere, such as Modi in India and Erdogan in Turkey.

The Rule of Law is important if we want a world of justice and fairness.

In the view of Baroness Kennedy, Brexit is a neoliberal deregulation project whereas the EU has raised standards in consumer protection, environment legislation and family law - with much of the regulation being driven by UK lawyers and standards.

And it clear that Russia was involved in attempts to influence the referendum vote, with both Trump and Yeltsin hating the EU, albeit for different reasons.

After the referendum, instead of cross vote concensus building, we had redlines and factions capturing political parties.

In Baroness Kennedy's view, Parliament is trying to do its best, with MP's trying to reconcile the views of leave voting constituents while recognising the damage that a "no-deal" outcome would cause.

The Justice System
Baroness Kennedy commmented on the catastrophic effect that severe cuts and poorly considered policy decisions had had on the justice system, with many of the worst decisions being taken by Chris Grayling (the ferry contract guy) during his short tenure as Justice Secretary (see here). Most notable among several poor decisions was the move to quickly, and disatrously, privatise the probation service (see here).

Cuts in Legal Aid have made it much harder for people to get justice in the courts, and public perception that legal aid is often used by criminals to dodge the system means that it is difficult to reverse these cuts and implement the "National Legal Service" that was contemplated as being a partner to the NHS in 1945.