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About John Jackson
John Jackson is a lawyer who has never practised the law professionally. He is Chairman Emeritus of Mishcon de Reya and was a founding member of the Board of openDemocracy. He recently launched JJ Books.
Articles by John Jackson
This week's editor
En Liang Khong is a submissions editor at openDemocracy.
The Armenian genocide
Yemen - easy to get wrong
Through the bars
No to TTIP
Meteoric rise of Islamic State
A careful comparison between the judgement of the Divisional Court in the Binyam Mohamed case and what David Miliband said in Parliament is revealing.
In Miliband's view, and I quote, ‘The question at issue was whether intelligence provided on a confidential basis by one state to another, in absolute trust that it will be kept secure, may be disclosed to the public by a foreign court- - ‘.
In the court's view the issue was how to balance the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.
It is important to understand that at no point did the court intend to disclose publicly the content of highly sensitive documents given to the court, very properly, by David Miliband's advisers and which, for a time, the US authorities did not want BM's lawyers to see. It only wished to include in its judgement a summary of reports by the US Government to our Security and Secret Intelligence Services on the circumstances of BM's incommunicado and unlawful detention in Pakistan and of the treatment afforded to him by or on behalf of the US Government.
The court wished to do that because the summary, which, it said, could not possibly be described as ‘highly sensitive classified US intelligence', was highly material to BM's allegation that he had been subjected to torture or cruel,inhuman or degrading treatment and to the commission of criminal offences. Under UK law a prosecution can be brought, with the consent of the Attorney General, against a person who aids and abets, or assists in concealing, grave breaches of the Geneva Conventions (such as torture or inhuman treatment) in the UK or, if that person is a UK national or resident, anywhere in the world.
Convention on Modern Liberty. It discusses many issues relevant to the Convention and will certainly feature in the session addressing the question ‘Who decides, the politicians or thejudges?'. Lord Bingham, a member of the panel opening that session, is quoted extensively in the BM judgement.The case of Binyam Mohamed (BM) is the latest in a long line of disputes concerning terrorists, alleged terrorists and their treatment to come before the courts. The judgement published on Wednesday - the last (maybe not) in a series of judgements in this case - is extremely interesting and addresses what the Divisional Court (with two judges sitting) believes to be ‘a novel issue which requires balancing the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.'. Were it not contained in 33 closely argued pages,I would recommend the judgement as ‘required reading' to all participants in the forthcoming
John Jackson (London, Mishcon de Reya): In his post yesterday, Stuart Weir referred to the ruling classes ‘self- defeating insistence on the great merit of a flexible constitution’. That insistence is also self-serving and depends on a strange and disingenuous circular argument.
By definition a flexible constitution contains uncertainties and is not definitively written down. But, say its advocates, we also embrace the rule of law and that does require certainty. And, given that we have a flexible constitution, that certainty can only be provided if somebody has the last word. That is the justification of the concept of parliamentary sovereignty encapsulated in the phrase ‘The Crown in Parliament can do anything it wishes except bind its successors’. Parliament – these days a Parliament which is largely the captive of government – has the last word and can insist on what it wants.
I am writing this in the United States where people are confronting with some discomfort aspects of their country’s recent past. Their new President when announcing the end of waterboarding and the closure of Guantanamo has reminded them that the US will have and deserve little moral influence if it does not hold to its founding ideals. At the heart of those ideals is ‘liberty’. My friends are asking themselves what ‘liberty’ truly is and who should enjoy it.
What strikes me again and again is that when discussing some of the less fragrant events of the recent past they do not ask ‘Was it legal?’: instead they ask ‘Was it constitutional?’.
Holding to the Constitution is an important part of being American. It is part of the glue which holds American society together.
We have nothing similar in the UK. We are almost discouraged from thinking about our Constitution. We are the poorer for that.
His call for a Bill of Rights with entrenched privacy laws may well be echoed strongly during the important Convention on Modern Liberty to be held next February and, hopefully, echoed with the rider that the protections we already have under the Human Rights Act should not be trimmed away.
John Jackson (London, Mishcon de Reya): Ahem! Whilst I agree with most of what has been said about the Damian Green affair – particularly the activities of the police, there is an awkward aspect which is in danger of being stuffed under the carpet.
Parliamentary Privilege – a hugely important part of our unwritten constitution - evolved well before political parties and their activities were a part of our landscape. It was, and is, an essential part of the way in which we, all of us, are protected from the abuse of power by those in control of the state. It is our protection and those who are elected by us to serve in Parliament, our MPs, have a duty to remember that in all their dealings. It is not just a rule of their playground!
John Jackson (London, Mishcon de Reya): The texts of Nick Herbert's public speeches sometimes give the impression of having been drafted first by a well informed assistant, with a sound knowledge of our constitutional history, and then given a ‘going over’ by Herbert to provide a (Conservative Party) politically correct gloss. The result can read in an oddly disjointed – almost Palinist - way. This is a pity: it diminishes the value of serious attempts to discuss serious questions in a serious way. The public lecture commenting on a decade of the Human Rights Act, sponsored by the British Institute of Human Rights and delivered by Herbert yesterday at the site of the British Library’s Taking Liberties exhibition is a striking example of this.
Despite the disjunctions, some good, and some bad, points emerged clearly from Herbert’s lecture.
He was right to:-
- Warn against the dangers of judicial activism;
- Emphasise that human rights cannot have meaning, or exist, without popular consent;
- Say ‘ – in society we have responsibilities to one another.’ and ’- there is a danger that rights become not tools for protecting the individual within society, but advancing the individual against society.’
But wrong to:-
- Argue that judicial activism has been accelerated by the Human Rights Act which has undermined parliamentary sovereignty and the separation of the powers;
- Imply that popular consent can only be expressed through parliamentary representation;
- Suggest that the best way for our society to ‘re-balance’ rights and responsibilities is via a British Bill of Rights and Responsibilities proposed by a (Conservative) government and, following debate, converted by a (Conservative) government dominated parliament into an Act ‘preventing judge-made law’ and restoring ‘the place of parliament’.
John Jackson (London, Mishcon de Reya): At the end of her judgement in the BAE case one of the law lords, Lady Hale, said “- - I would wish that the world was a better place where honest and conscientious public servants were not put in impossible situations such as this - - -“. I would wish that too. I would also wish that people and nations did not seek to advance their interests by violence or the threat of violence. If that were so there would be no need of armaments industries and questions of national security could be dealt with in a more open and satisfactory way.
The impossible situation to which Lady Hale referred was the dilemma confronting the Director of the SFO in deciding, with incomplete information, whether, to quote Lord Bingham, “the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens”. The incompleteness of information available to the Director is the link to my second wish and my remark about how questions of national security are dealt with.
John Jackson (London, Mishcon de Reya ): Doubtless some, perhaps many, will be disappointed by the unanimous decision of five law lords to overturn the judgement delivered, and probably crafted, by Lord Justice Moses in the Serious Fraud Office’s BAE case. And those disappointed will include some who have convinced themselves that the Blair government acted cravenly to protect the commercial interests of BAE - a large employer and taxpayer - or even that this all fitted in with a longer term plan by Blair himself to grease his passage, post-premiership, to a position from which he could enjoy the trappings of international office and advance the interests of his friends in the United States in the maintenance of oil supplies from the Middle East.
John Jackson (London, Unlock Democracy): Many political commentators are enjoying great sport by sniffing out and pursuing members of the presently besieged government who smell like attractive quarry. With increasing frequency the victims deserve this attention because of incaution, stupidity or breaking cover at the wrong time. It is rare for a minister to attract praise for doing something rather brave. One such should be Michael Wills at the Ministry of Justice responsible for the discussion paper "A national framework for greater citizen engagement" (pdf).
I have just reread Wills' paper "A New Agenda-Labour and Democracy" written when he was a backbencher and published by the Institute for Public Policy Research in June 2006. In the introduction he says "This essay argues for a programme of reform, that may have to be driven not by the political class who are seen as responsible for undermining faith in our constitutional arrangements but by the people themselves who are served by such arrangements. It suggests that the time may be coming for an elected, one-off, fixed term constitutional convention to heal the fracture in our politics".
It is easy to contrast that imaginative idea, set out in clear and refreshingly honest words, with the caution, correctness and need not to be too costly pervading the ideas outlined in the discussion paper and either damn Wills as a cowardly backslider with faint praise or dismiss him as someone of no consequence with caustic snidery. It would be wrong and unfair to do either.
John Jackson (London, Unlock Democracy): David Davis has spoken of the possibility that the Parliament Act will be used to force through the Government’s proposed “42 day” legislation, despite any objections made by the House of Lords. Theoretically this is possible.
I’ve been asked, what exactly is the Parliament Act? How does it allow the Lords to be over-ruled? And also, following a hint of David Davis, why might it be illegal in the case of 42 days if the government does attempt to use the Parliament Act?
John Jackson (London, Mischon de Reya): In the current issue of Prospect, Philip Collins and Richard Reeves assert that “Labour is failing to win-or even to grasp- the big political argument: how to ensure people are in control of their own lives.” From that starting point they take their readers on a journey that ends with the conclusion that Labour has a stark choice-it must abandon its liking for central-state diktat and either liberalise or die
They signpost the journey with, for example, references to the dangers of the Fabian brand of “mechanical socialism”, Labour being heir to another tradition too, "Radical liberals, seeking to provide the conditions for people to live flourishing lives of their own choosing, having driven many of the social advances of the 20th century” and "Unless there are strong arguments to the contrary, power should reside with individuals."
It is very striking that the article does not recognise that ordinary people are entitled to decide for themselves how they should take control of their own lives. In essence it is a discussion of what a political party should do to “give” ordinary people such control in pursuit of its own opinions and interests. That is something very different and is an affront to the notions of personal liberty and human rights.
This goes to the root of an increasingly serious problem. The political parties have acquired a large amount of unconstitutional and unaccountable power. Their grip on our electoral arrangements coupled with the whipping system and the payroll vote have destroyed our system of representative democracy (so that it is neither representative nor democratic) and reduced Parliament to a role largely junior to that of the Government.
It seems that the climate of our planet is reverting rapidly to that which has persisted for much of the last 300 million years. Average temperatures and sea levels were higher, there were no polar ice-caps and temperature differences between poles and the equator were lower. The rate of this reversion, certainly in so far as it is connected with greenhouse gases, is being accelerated by humans and their activities and to such an extent that their must be a risk of "overshoot" into a situation which is entirely new.
John Jackson chairs the law firm Mishcon de
Reya, is a director of openDemocracy
and History Today and is on the committee of Unlock Democracy
Among John Jackson's articles in openDemocracy:
"Write the constitution down!" (17 February 2005)
"A democracy in trouble" (1 March 2006)
"Alice Wheeldon and the attorney-general" (17 April 2007)
"From deliberative to determinative democracy" (15 October 2007)
One thing is certain: if we do eventually get a written constitution for our country it will not start with the words "We the judges".
This remark is made only partly in jest. As Lord Bingham, our senior Law Lord, has made clear recently there is, in his view, a serious problem which we cannot wish away and must not ignore. To put it starkly, it is the incompatibility between the rule of law and the sovereignty of parliament.
It is helpful if those whose opinions can affect our lives think out loud in an open and honest way so that we can follow the development, and particularly the changing, of their thoughts. Someone who is good at this, in his judgements, speeches and lectures, is Lord Bingham, formerly both Master of the Rolls and Lord Chief Justice - and a senior Law Lord since the year 2000. This is particularly so in respect of the notions of the rule of law and parliamentary sovereignty. What are they? What do they mean? And are they compatible?
In 2002 Lord Bingham said flatly in a public lecture: "Under our constitutional dispensation Parliament is sovereign." By this he meant that, in our country, it is Parliament which is the highest law making body and no one - not even the judges - can declare an Act of Parliament, however odious, unlawful. This is in contrast with the position in most other representative democracies. There it is a written constitution which is paramount and the judges, who are themselves governed by it, can strike down legislation as unconstitutional.
What we call "democracy" is an amalgam of values, rights and systems. Attempts to define it will always be fuzzy round the edges. The same goes for "deliberative democracy". Do we mean a situation in which each citizen has an equal right to influence decisions which affect them by a process of informed interactive consultation? Or do we mean something that goes further - more Athenian, something more than "merely" deliberative?
chairs the legal firm Mishcon de Reya, and is a director of openDemocracy and History Today
John Jackson's article continues openDemocracy's "Democracy and deliberation" debate, which also features:
James S Fishkin, "Deliberative polling: distilling the crowd's wisdom" (12 October 2007)
Matthias Benz, "Democratic vote or deliberative poll?" (13 October 2007James Fishkin's description of what "Tomorrow's Europe" deliberative poll is attempting makes it clear he is talking about the former and has demonstrated how to do it (see "Deliberative polling: distilling the crowd's wisdom", 12 October 2007). But does it go far enough? There is a growing number of citizens who are disenchanted with mere consultation and want a process which really holds the promise of determining outcomes. Matthias Benz has argued that genuine citizen participation does enrich political culture (see "Democratic vote or deliberative poll?", 13 October 2007). If this is what we want, how should we go about it?
What are the proper boundaries between law and politics in a democratic society, especially in time of war or national emergency? Who champions the rule of law? And where does law enforcement fit in? These questions are frequently posed in modern Britain amid fears about the power and accountability of the state, and against the background of war in Iraq and the "war on terror". But they are not new. John Jackson excavates a little-known case from 1917 - a tragedy of political might dominating justice to illustrate a dilemma that exposes the very foundations of democracy.
The "concordat" model recommended by the Power inquiry as a means to revivify Britain's democracy is a flawed solution to real problems, says John Jackson.
The battle over fox-hunting in England has led to a crisis of authority in the state itself. Anthony Barnett asks John Jackson, a key figure in the case and chairman of a leading law firm, Mishcon de Reya, to comment on the significance of the latest decision by a high-level panel of judges.
Talk of freedom often masks a clamour for rights. And the instincts of survival and belonging can seem more truly precious than the lonely attractions of non-conformism. Yet, says the chairman of the Countryside Alliance, there is a freedom beyond rights that must be guaranteed in writing if democracy is to work well.
From BSE to foot & mouth, from hunting to the Countryside Alliance, from Maff to Defra - out of crisis the countryside has moved to the top of the political agenda. But where is the Urban Alliance? Are the cities losing their way? And how can the fractured relationship of the last decade be healed in the next?
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