By Michael Etienne
Anyone who thought this event, Angela Patrick’s first since being appointed Chair of the HRLA, was going to be a cosy pre-Easter chat about Lord Lester’s latest book, “Five Ideas to Fight For: How Our Freedom Is Under Threat and Why It Matters”, was in for something of a surprise. Yes, there were the sage anecdotes about the young law student who hated the study of law, the foresight and the courage of reformist Home Secretary in Roy Jenkins and the moral compromises of coalition government (more of which later).But these tended to punctuate an altogether more lively affair, which included stinging rebukes for the Government and its approach to Brexit, various Lords Chancellor the Equality and Human Rights Commission. Lester also offered an unexpected perspective on what judicial diversity looks like, or doesn’t.
The conversation opened with a brief canter through Lord Lester’s route into law. He studied law at Cambridge but loathed it. He resolved to give up law altogether until he secured a scholarship to study law at Harvard. There, he met a fellow student from India, who enabled him to see law as a means of securing social change. His commitment to practise was rekindled. He went on to complete pupillage but was turned down for tenancy. At another professional cross-roads, he found work with a then fledgling Amnesty International, which took him to the United States. He saw the injustice of Jim Crow’s substitution for slavery and began to consider the parallels for the UK. Back home, he and Dr David Pick began a campaign that would culminate in the Race Relations Act 1976.
With the passage of time, it is easy to forget just what a feat that was, Racist rhetoric was a stronger currency even than it is today, racist violence went virtually unchecked and institutional racism was a reality without the label.
That 1976 Act is now seen as a forerunner to the more comprehensive Equality Act 2010, another seminal piece of legislation that Lester played a crucial role in passing. The Equal Marriage Act 2010 can also be added to the list of his potentially less widely-known contributions to the protection of fundamental rights in the UK.
The one piece of legislation with which he is virtually synonymous is, of course, the Human Rights Act 1998. He described this as the final victory in a “30-year battle”. It had begun in 1968. Cowed by a rising anti-immigrant sentiment that would crescendo in Enoch Powell’s malicious “Rivers of Blood” speech a few weeks later, the Labour government passed emergency legislation to limit migration from the Empire in Africa: the Commonwealth Immigrants Act 1968. Overnight, Citizens from East Africa, particularly Kenya, were stripped of their right to move to the UK. This was despite the fact that thousands of Kenyans had retained British Citizenship upon Kenyan independence, on the promise that there would always be a place for them in the heart of Empire. It was also a time when, as British citizens, they faced persecution and expulsion from their homes by the new Kenyan government.
The Strasbourg Court would go on to find that this flagrant disregard for due process was a violation of the European Convention on Human Rights, in one of the earliest, most significant rulings of the nascent supranational court. However, at that time, to compound matters, the English courts offered no protection for Convention Rights. Applicants could only go straight to Strasbourg. Lester’s dedication to bringing those rights home was born.
Against that background, it is no surprise that Lord Lester denounced as “appalling” the Conservative Party’s continued commitment to repealing the HRA. However, it would be wrong to assume that Lester’s support for the HRA, the Strasbourg Court or indeed any of the institutions of the European Union is absolute. On the contrary, he happily accepts that they are all in need of reform. That said, he believes passionately that reform should be driven by the UK from within the various organisations.
As far as the HRA is concerned, the “problem” is that it is not a constitutional bill of rights in the way of the other Council of Europe member states. He is an advocate for a written UK constitution, not for what he sees as the substitution for one provided for by the 1998 Act. That substitution means that “we ask the wrong” question: “have my ECHR rights been infringed?” The “right question should be: have my constitutional rights been infringed?” He went on: “this alienates the public. The immediate focus is not on domestic rights but international rights”.
And what of the EU? Lord Lester was a Remainer. In conversation, he shared the now common lament of the lost opportunity for the UK to take a lead on reform of the EU institutions and problems that are not confined by national borders. But his ire was piqued by what he saw as the lack of honesty from Government about where we are now:
“They [the Government] lack honesty. There is more dishonesty now than any other point in my lifetime. They are grossly incompetent. Take the idea that no deal is better than a bad deal and that we need to get rid of the influence of the European Court of Justice. If we crash out, planes can’t fly. We are signatories to [EU-based flight treaties] and other transnational European agencies. We would have to crash back in, in order to function.”
As for the CJEU:
“Imagine if there was a border separating Northern and Southern Ireland. Then imagine if the North adopted policies which discriminated against milk produced by Donegal Farms, as had occurred in the past. At the moment, freedom of movement rights are guaranteed [which protect against discrimination in the provision of goods and services] but if we crash out [those protections go]”
These potential realities seemed to be falling on deaf ears in Whitehall:
“Either the Civil Service is not advising Ministers [about the risks of crashing out of the EU] or Ministers are just not listening. Having spoken to a Government Minister [ministers not listening] is exactly what is going on.”
As regular observers will know, this isn’t the only issue on which Lord Lester finds himself at odds with Government. He castigated the “unspeakable” damage done to access to justice, in particular, by Chris Grayling, as Lord Chancellor and the “savage” cuts he drove through under Legal Aid and Sentencing of Offenders Act 2012 (LASPO). He saw no reason for comfort with the current Lord Chancellor, Liz Truss MP. “She”, he said “is utterly useless”.
Lord Lester is no stranger to government, having been a special advisor to then Home Secretary, Roy Jenkins. He was part of Gordon Brown’s “Government of all the talents”, working similarly with Home Secretary Jack Straw (which Lester described as a “complete waste of time”). He also supported the Coalition government as a Liberal Democrat Member of the House of Lords. Would he go back into government? Never. Being whipped in the Lords to vote against his own amendment to LASPO put paid to that.
Was there anything that we could be happy about? Yes. “We have the most enlightened judiciary anywhere in the world” and “the young lawyers of today are now better than ever; better educated and more publicly minded”.
Earlier in the week, Peter Herbert OBE, Chair of the Society of Black Lawyers and part-time employment and immigration tribunal judge was censured by the Judicial Conduct Investigations Office (JCIO) for publicly expressing the view that racism was “alive and well” in the judiciary and Anuja Dhir had become first non-white circuit judge at the Old Bailey. So, it was fitting that Lord Lester was asked about the attritional progress on judicial diversity:
“The judiciary in this country are the best in terms of their independence, internationalism and impartiality. [However] “It is still mostly White, middle-class, publicly-school educated and male; which is not helpful in terms of public confidence.”
Lord Lester is an advocate for judicial appointments driven on merit, which opened the Bench to solicitors and academic lawyers as much as to barristers. However, no doubt surprising to many, whilst agreeing with many of the all-too-familiar criticisms of the judiciary, he is against the idea that it could or should reflect the society it serves:
“I do not believe in a representative judiciary. It is not a sensible way [of shaping the judiciary]. You cannot have a judiciary which reflects the makeup of society.”
On the current state of race relations in the UK, Lester was especially concerned about the prejudice faced by many Muslim communities. He admitted that he and his contemporaries had never contemplated the way in which religious belief and identity would become so significant in public discourse. That might also be seen as an interesting admission given that Lester not only lived through but was part of a Government having to respond to the Troubles in Northern Ireland.
Whilst he took the view that the UK was the best country in Europe for Muslims to live in, he felt the law could and should be used to offer better protection against discrimination. In that context, he castigated the Equality and Human Rights Commission for failing to use its powers to ensure that the Equality Act 2010 is properly enforced. That criticism was not only confined to the prohibitions on race discrimination but equally to the protections for other groups across the Act, including LGBTQI rights.
He spoke out in favour women’s rights and specifically the right of safe access to abortion. He criticised the Trump administration’s decision to cut funding for these services, domestically and internationally and praised the UK government for its own commitments in this area.
In his closing remarks, Lord Lester echoed the words of Oliver Wendell Holmes in encouraging the audience to continue to “strive for the unobtainable”. Finally, there was a special rallying call for the young lawyers present:
“Become lawyers, fight for your principles. It is time for the next generation …. It’s over to you.”
It’s hard to disagree.
Michael Etienne is a member of the HRLA’s Young Lawyers’ Committee. He is also a Trainee Barrister at Matrix Chambers.
“Five Ideas to Fight For: How Our Freedom Is Under Threat and Why It Matters”, by Anthony Lester of Herne Hill, is published by One World Publications—out now.