Parliament’s failure to investigate Tony Blair

Montesquieu: as naive as any other anglophile.

Montesquieu: as naive as any other anglophile.

Every single mainstream media outlet has today reported that a Parliamentary motion to investigate Tony Blair for misleading Parliament in order to win support for the invasion of Iraq has been defeated by 439 votes to 70.

In reality the motion put forward by the SNP was, contrary to all media reports, modest in the extreme. You may read all 145 words of it here: it is fourth on the prayers list. It amounts to little more than an appeal for the Public Administration and Constitutional Affairs Committee, which is currently examining the “lessons learned” from the Chilcot Inquiry, to pay particular attention to the misleading information Tony Blair gave to Parliament. That is all.

Some commentators have argued the thumping defeat of this motion by both Labour and the Conservatives reflects nothing more than the animosity both share towards the SNP. That argument could be true, which I very much doubt, and it would still reflect appallingly on the British Parliament. Probably it is no more then the reflexive apologia emitted by the mainstream media whenever a story demands they condemn the establishment.

Every single qualifying law degree in the UK has a public law module, and as far as I am aware, every single one of these public law modules teaches the importance of the separation of powers in maintaining any constitutional system. The executive, the legislature, and the judiciary must be independent. Indeed, their independence has been accepted since the days of Montesquieu. Well, it is about time this error was corrected.

Our legislature does not hold our executive to account. This mechanism, it it ever worked at all, has by now comprehensively failed. One may argue about the precise importance and validity of the reasons why it has failed, but its failure is incontestable. One could talk about party politics, and the payroll vote, and so on. Much has been said about these matters by commentators far more expert than I. But since the candidacy of Jeremy Corbyn, Labour has possessed the biggest membership of any political party in Europe, and I am sure this membership is, for the largest part, adamant that Blair receives the fullest possible condemnation for his singular role in the invasion of Iraq. Despite this, they cannot convince their parliamentary members, including Corbyn himself, to vote accordingly.

It is about time the textbooks were rewritten, otherwise law will become an academic subject as untrustworthy as economics. Parliament does not hold the government to account. Far from it. Parliament is a kind of public theatre where parties compete to appear equally credible to a corporate media. Peter Oborne was correct to write that there is now a political class. For those of us outside this class, our chief task lies in removing it, and the system that upholds it. Whatever we may individually believe, whether we are left-wing or right-wing, Brexit or remain, Sanders or Trump: we have to rescue our representative democracies from the fatal grip of the political class.

 

2016 Hamlyn Lectures: Dame Sian Elias and the origins of our criminal justice system

Tonight at Cardiff Law School I attended the first of Dame Sian Elias’ three Hamlyn Lectures. The second will be in Exeter, home of the Hamlyn Trust, and the third will be in Lincoln’s Inn. Elias is Chief Justice of New Zealand, and she was accompanied by our own Lord Chief Justice, John Thomas having agreed to act as a kind of senior judicial chaperone.

Elias reminded us that much of our criminal justice system is relatively modern. The right to silence, the privilege against self-incrimination, the right to legal representation, the availability of trial by jury and the requirement for jury unanimity, and the respective role of judge and jury were not firmly established as basic principles until the Victorian era. This is an interesting observation for lawyers from the former outposts of British Empire, because it means that in many colonial jurisdictions, the heavy weight of England’s legal history did not really press upon the development of criminal law as it did in other areas, like equity. As regards criminal law, we all grew up together.

Elias dwelled on 1842 trial of Wiremu Maketu, a young Maroi who would ultimately be the first person executed in New Zealand under British rule. It was the first major criminal trial to follow the Treaty of Waitangi, by which the Maori chiefs acceded to Britain’s declaration of sovereignty over the islands, and thus the trial was seen as a kind of show case for British justice. Whilst far from perfect (Maori apparently only secured legal counsel an hour before trial) it resembled in most aspects the sort of murder trial we would see today.

It is not apparent from the outset precisely what Elias may ultimately conclude in her upcoming lectures. However, I struck by her response to a question from the floor. A functional criminal justice system is, of course, essential to the rule of law, and one attendee wondered if it wasn’t the case that poorer countries, with societies of great material inequality, simply couldn’t sustain rule of law as we Westerners might conceive of it. Elias replied that it was precisely those sorts of countries where the rule of law was most needed. And this caused me to reflect on New Zealand.

At the time of Maketu’s trial, New Zealand’s ruling class were an ethnic minority, and they were as far from their homeland as they could possibly get (arguably, this has not much changed). The Maori chiefs were easily capable of hostile insurrection. The need for a reliable criminal justice system that could be seen to be fair to all was paramount. British sovereignty couldn’t function otherwise.

Is it not the case that the United Kingdom may owe much of its criminal justice system to its nineteenth century imperial responsibilities? I have no idea how Elias’ lectures will ultimately conclude, but it seems to me that Britain’s global presence that may have necessitated the dramatic improvement of its criminal law. These reforms certainly can’t be attributed to popular demand. The British public were as authoritarian then as they are today. Hangings were massively popular.

By this token, is it a complete coincidence that Britain’s criminal justice system is declining just as our responsibilities abroad evaporate? There is some significant overlap, is there not, between those who would withdraw from the EU and the ECHR, and those who want harsher prisons, heavier sentences, the further curtailment of legal aid, the admissibility of all prosecutorial evidence, etc?