Giving the Devil the Benefit of the Law
How refreshing it was to read Daniel Finkelstein’s op-ed in The Times (‘I hate Abu Qatada too – but the law’s the law’). Mr Finklestein made three points eloquently. First, the rule of law is fundamental to our liberal democracy. Second, we should not suspend the law simply to deal with one man, namely Abu Qatada. And third, protecting toxically unpopular people is an important function of human rights law. It says something about the febrile nature of contemporary politicians that this needs to be so clearly spelt out, although some like Chris Bryant MP understand the importance of the rule of law.
Reading Mr Finkelstein I was reminded of two things. First, that fantastic and famous scene in Robert Bolt’s A Man for All Seasons. In the famous scene Sir Thomas More, Lord Chancellor, argues with his son-in-law, William Roper, with the latter urging More to arrest his nemesis Richard Rich. More replies he cannot, as Rich has not broken the law. ‘So now you’d give the Devil benefit of law!’ replies Roper. To which More replies ‘Yes. What would you do? Cut a great road through the law to get after the Devil?’ Tempted by an easy answer Roper exclaims ‘I’d cut down every law in England to do that!’ This prompts More to offer up the moral of story:
‘Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.’
You can watch the scene from Zinnemann’s film of the play below.
The second thing that came to mind was that great constitutional decision of the early nineteen nineties, M v Home Office  UKHL 5, which affirmed the rule of law. M concerned a Zairian national who arrived in the UK and applied for asylum. The claim failed, as did M’s applications for judicial review of the decision. The Home Secretary sought to remove him. As M was about to be deported he renewed his application for judicial review, raising new grounds. In order that the matter could be considered fully Garland J adjourned the hearing with, he thought, an undertaking by counsel that M would not be deported. M was deported. (M subsequently disappeared and was not heard of again). No effort was made to intercept him en route or to return him. Garland J then made a mandatory order requiring the Home Secretary to return M from Zaire. The Home Secretary, acting on advice, chose to ignore the order. Contempt proceedings were then brought against the Home Office. The case turned on whether ministers of the Crown could be bound by coercive orders of the court and thus held in contempt of court where they disobeyed them. The House of the Lords famously concluded that ministers were indeed bound by orders of the court, and could be held in the contempt although in this case they declined to hold Mr Baker personally in contempt. Instead, the Home Secretary, as a member of the executive, was held to have acted in contempt. Giving his concurring opinion Lord Templeman expressed the gist of the issue in his typically forthright style:
‘the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.’
In light of this emphatic decision you might be forgiven for thinking that ministers would be careful to obey courts order. Yet last summer Theresa May, as Home Secretary, was held by the High Court to have acted in contempt when she refused to release an immigration detainee. R (Lamari) v Home Secretary  EWHC 1895 (Admin). This was the first time that a Cabinet minister has been held in contempt since M.
Where I beg to differ with Mr Finkelstein is on his rejection of the European Court (but not Convention?) and the need for a British Bill of Rights. No doubt we all have our own proposals and ideas for what a British Bill of Rights would look like. The problem is that as a nation we cannot agree. The ill-starred Bill of Rights Commission proved that, if nothing else. In the absence of such a consensus the ECHR/HRA offers an invaluable measure of practical justice. That the ECHR is a quintessentially British document helps enormously.