Lord Steyn: 'Judges are not the servants of the Government ... our duty is to the public'

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The Independent Online

But now Lord Steyn has retired as a member of the judicial committee of the House of Lords and has won back his right to freedom of expression. Today he chooses to exercise that right.

Speaking publicly for the first time since he left judicial office last month, Lord Steyn condemns the Government for its assault on human rights, declares himself to be "deeply sceptical" of a national identity card scheme and says he shares the comedian Rowan Atkinson's fears that the new religious hatred legislation will criminalise satire.

If only one or two of Lord Steyn's judicial colleagues share even a fraction of his concerns then the Government can expect a rough ride when these policies are finally tested in the courts.

But it is the Government's anti-terror proposals for which Lord Steyn reserves most scorn. His description of Walter Wolfgang's arrest at the Labour Party conference in Brighton paints a picture of Britain as a police state.

"I regard freedom of expression as the primary right without which one can not have a proper functioning democracy," says Lord Steyn. "So anything that derogates from that must be scrutinised extremely carefully." Then he asks: "What about Walter Wolfgang? Where does that lead us and what about the position of somebody who wants to oppose the Government's Iraq policy and expresses that in vigorous terms. Is he to be at risk of being charged?"

Lord Steyn was born in South Africa, so has an idea of what it means to live in a country where the right to freedom of expression is rationed and civil protest is not tolerated. The Prime Minister has justified the new measures by declaring that after the July 7 bombings in London the rules of the game have changed.

Lord Steyn responds: "Perhaps Mr Blair should know that when he talks about the rules of the game he should know this is not a game; this is a deathly serious and earnest matter, and that what we [the judges] do apply is the law."

His remarks will be interpreted as a rebuke to Charles Clarke and his anti-terror proposals, to be published this week. In particular he takes issue with the proposed, and now hastily withdrawn, offence of glorifying terrorism. "It's a very retrograde step. We already have an offence of inciting terrorism. I think the attempt to use emotive language in a statute ... will perplex juries and be unworkable."

The Home Secretary says he no longer intends to bring in an offence of glorifying terrorism. But he remains committed to giving the police the power to hold suspected terrorists for up to three months without charge.

Lord Steyn says that this proposal will lead to miscarriages of justice. "You can't arrest somebody or detain him unless you have a foundation for it. I don't say you need absolute proof, but you should have foundation for a reasonable suspicion to arrest him. In a bombing case it could be residues of material discovered by forensic scientists, or it could be surveillance. But once the police have got information enabling them to charge they must charge him. I simply do not accept the proposition that it is not possible for the police and Crown Prosecution Service to formulate charges within 14 days. He adds: "They can add all sorts of other charges ... they don't have to throw the book at him at the beginning."

If the proposal becomes law Lord Steyn believes it will be challenged in the European Court of Human Rights in Strasbourg.

"There is a very strong policy reason underlying Article 5.3 of the European Convention on Human Rights, which requires the person to be brought before a court promptly. I think 14 days is the outer limit of that. One of the reasons for the worry about this is the great avenue for police corruption and police oppression introduced by prolonged periods of police incarceration without charge."

Such candid opinion will also tighten the tension in the already strained relationship between Tony Blair's Government and the judiciary. "Judges are not the servants of the Government," says Lord Steyn. "We swear an oath to the Queen as head of state, our duty lies to the public, not the Government. I think in all these complaints about how the judges are not being helpful enough they must remember we are emphatically not on the same side. They can put as much pressure on us as they like but we will do our duty." He adds: "I have not detected signs of timidity among my colleagues not to stand up to government."

Johan Steyn, 73, studied law at the University of Stellenbosch, before winning a Rhodes Scholarship to read English at University College, Oxford. He practised law as an advocate in apartheid-era South Africa. But he never forgot the freedom of association and expression that he had experienced in Oxford.

In the introduction to his collected essays, he sums up his thoughts on apartheid: "It was a period of institutionalised tyranny and cruelty in the richest country in Africa, inflicting great suffering on millions of black people. The government, by and large, could and did achieve its oppressive purposes by a scrupulous observance of legality." This perversion of the rule of law left an "indelible impression" on him.

In 1973 he settled in England, where he joined a set of chambers that allowed him to practise as an international commercial lawyer for 12 years.

Then in 1985, "out of the blue", he was approached by Lord Hailsham, the Lord Chancellor, who offered him an appointment to the High Court bench. "I accepted with delight and have never regretted this decision."

But Lord Steyn remains puzzled to this day how he came to be offered such a position. "Some years later my doubt became intensified when I met Lord Hailsham in the House of Lords. He called me 'Charles' and afterwards when we occasionally met by chance I obediently answered to that name. Was my appointment a case of error in persona?"

Lord Hailsham's appointment of Johan Steyn proved to be an enlightened one. His judgments have stood out as beacons of social and moral guidance often ahead of their time, and have helped to earn him a reputation as the leading member of the liberal wing of the judicial committee of the House of Lords.

Such frank speaking has led to antagonisms with the Government. Last year David Blunkett, then Home Secretary, successfully challenged the inclusion of Lord Steyn among a panel of nine law lords hearing the case against the indefinite detention of foreign terror suspects. It was the first time that a government had managed to influence the selection of judges hearing a case in the House of Lords.

Lord Steyn believes the challenge may have had more to do with his criticism of Britain's silence over Guantanamo Bay than his view about the suspension of Article 5 of the European Convention on Human Rights. "I'm rather hoping this is a unique case, because as far as I know it is the first time the Government has challenged the composition of the House of Lords and I rather hope they will never do it again."

This is not the last the Government will hear of Lord Steyn. Next week he is to be nominated as the chairman of Justice, the leading civil rights group, when he will succeed Lord Alexander of Weedon. His chosen subject? "I have decided to say one or two words about Iraq, but more of that on Tuesday. "

The CV

* BORN: 14 August 1932

* EDUCATION: Studied law at the University of Stellenbosch and then read English at University College, Oxford.

* CAREER: 1973, arrived in London, joined chambers at 4 Essex Court; 1985, appointed to the High Court; 1992, appointed to the Court of Appeal; 1995, joined the House of Lords as a law lord; 2005, retired as a law lord. Succeeds Lord Alexander of Weedon as the chairman of council of Justice, the civil rights group.

* FAMILY: He was married in 1977 to Susan Lenore and has two daughters and two sons from a previous marriage.

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