Rule of law is still our defence

Better to go into the heart of the establishment and make your case than to stand outside shouting slogans

Sunday 22 February 2015 01:00 GMT

Magna Carta, as any pedant knows, was a deal signed between a king and his uppity barons that was torn up as soon as King John thought he was strong enough to go back on his word.

The purpose of tomorrow’s grand Global Law Summit to mark its 800th anniversary, however, is to celebrate the principle that our government is constrained by the rule of law. Whatever the historical details and its anachronistic clauses, for example about the interest on debts to Jews, Magna Carta sought to assert that principle, and has stood as a symbol of freedom under the law for eight centuries.

Hence the strength of feelings about tomorrow’s £1,750-a-head commemoration. Shami Chakrabarti, the director of Liberty, the civil liberties campaign, has pulled out of speaking at the summit because it was launched by Chris Grayling, the Secretary of State for Justice and Lord Chancellor. John Cooper, a leading criminal barrister, called for the Criminal Bar Association to boycott the summit, saying that the event is a pre-election stunt and that, “by going there, we are tacitly endorsing what Grayling is doing to the criminal justice system”.

As we report today on page 2, Tony Cross, the association’s chairman, will attend tomorrow but intends to use the event as a platform from which to attack the Government’s record. In the debate between boycott and engagement, we believe that Mr Cross has the better of the argument. Better to go into the heart of the establishment and make your case than to stand outside shouting slogans. Especially as this is an argument that the defenders of the rule of law are winning.

Mr Grayling’s attempt to restrict the powers of the courts to subject the Government’s actions to judicial review has been beaten back in the House of Lords. The Criminal Justice and Courts Act, which received the royal assent this month, is not perfect but the worst of Mr Grayling’s attempt to limit judicial review was defeated by a well-argued campaign by Lord Pannick, the lawyer and crossbench peer. Less successful has been the campaign to defend the principle of equal access to the law against Mr Grayling’s cuts in public spending.

As Mr Cross will tell delegates to the Global Law Summit, legal aid has been cut so deeply that many people will be denied justice because they cannot afford it. The huge increases in court fees “will, in practice, deny access to justice for small businesses and many others who cannot afford such sums”, as Lord Pannick has argued. And the change in rules making it harder to recover costs, even when prosecutions have been thrown out, will deter people from defending themselves.

On the Tories’ campaign against the European Court of Human Rights, however, those who see human rights law as a valuable constraint on government are winning. This month, the European Court in effect accepted the right of the House of Commons to decide on the right of prisoners to vote.

It was a victory for those such as Dominic Grieve, sacked as Attorney General because he is too respectful of the rule of law, who wanted Britain to argue its case at Strasbourg and was against threatening to repudiate the authority of the court. Those who want to pull out of the European Court, such as Mr Grayling and Theresa May, now have a harder case to make.

That is how the ancient principles of British law should be defended: by engagement and argument, not pulling out of things because we do not agree with everything about them. Let the defenders of the rule of law take their arguments to the Global Law Summit tomorrow, and let them deny the Government the exclusive chance to define the priceless principles that Magna Carta represents.

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