Category Archives: Constitution

Constitution, Human Rights

The Glory of the Hamlyns

How a little-known benefactor established an academic series of immeasurable value

 

(as published in Prospect)

Emma Warburton Hamlyn was born on Guy Fawkes Day 1860 in Torquay. Her father was a law clerk and after a while started work as a solicitor, a successful one of sorts, becoming a commissioner for oaths, doing a little bit of work from time to time for the province of Nova Scotia and eventually making it onto the magistrates’ bench. Emma was an only child, with her mother mainly at home but helping out in the local schools and generally doing her bit for the Methodist faith which she shared with her husband. The family lived in Torquay pretty well all their lives, Emma never seems to have budged after her parents’ death: the most assiduous of searches have revealed membership of nothing, visits to nowhere, relationships with no one. She died in 1941, aged 80, in the house in which she had spent most of her life.

Anonymous in life, Emma Hamlyn has been immensely celebrated in death. Generations of lawyers recall her name with affection. In the decades since her apparently lonely demise, the greatest jurists of their day have grabbed the chance of her imprimatur to reach global audiences in the tens of thousands. Lucky law students have the chance to attend a “Hamlyn” lecture if their enterprising professors have managed to secure one for their university; many more study the lecture texts published annually as a book under her name. How can all this have happened?

Against legal advice and out of the blue, Emma Hamlyn chose to leave the residue of her considerable estate for the “furtherance by lectures or otherwise among the Common People of this Country of the knowledge of the Comparative Jurisprudence and the Ethnology of the Chief European countries including our own.” Her express intent was that, as a result, “the Common People of our Country may realise the privileges which in law and custom they enjoy in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them.” Legal action in the Chancery Division was needed (as Miss Hamlyn had been warned) before the show—a set of annual lectures was the agreed format—could be got properly on the road, with (what is now) the University of Exeter leading in their organisation and the universities of London, Leeds, Belfast and Wales helping out with trustees.

The first lecture, Freedom under the Law, was delivered at the University of London’s Senate House in 1948 by Lord Denning and set the standard for the subsequent lectures. He wasn’t Lord Denning then of course, just plain Sir Alfred Denning, new to the Court of Appeal. But what a booking, a bit like getting the Rolling Stones to launch a series of concerts before anyone knew who they were. Denning went on to become a legal rock star, lived long, wrote much and in that era before mandatory retirement hung on as a judge Ruth Bader Ginsburg-style until the early 1980s (when a recklessly unchecked book did for him). Reviews of this first set of Hamlyn lectures stressed the beauty of Denning’s writing and the ability he had to reach both the “common people” and the legal glitterati. The course of the Hamlyn lectures was set. In the 1950s, Lord Devlin lectured—famously—on juries as “the lamp that shows that freedom lives” and the legendary legal polymath Glanville Williams on “the proof of guilt.” The 1960s saw the first woman (Baroness Wooton, on crime, bursting the format with a book in two parts) and moves into foreign jurisdictions: maybe the organisers thought — heretically! — that those abroad might have the occasional good idea. Reflecting the times as well was a new interest in welfare law, a sign of the innovative instincts of the trustees. Perhaps the most famous Hamlyns of all are those of Lord Scarman in 1974—English Law – the New Dimension—talking about human rights before anyone really knew what they were. Constitutional Fundamentals by Professor William Wade in 1980 nearly launched a recherché legal revolution to impose those self-same human rights, with a wonderfully bonkers argument about how all it took to achieve a revolution was a few swear words from judges. (“Changing the judicial oath” was how this old-school but wildly fresh thinker put it.) Another early booking, Denning-style, was Brenda Hale, 1995, a newbie in the High Court’s Family Division. Cambridge University Press took the lectures over in 2005 and they now have a glossy website, lovely photos and an energetic publicity drive behind them. Eleanor Sharpston QC gives the first of her three—remotely, of course but notionally from Edinburgh—on 29th October, on the European Union and the rule of law: as a senior advocate within the European Court of Justice until Brexit there will be much of topical as well as academic interest for sure.

Of course you cannot have a lecture series with mega stars every year. We jobbing professors get a look in too, from time to time. I gave the Hamlyns in 2005, on the catchy title (for which I had one of the organisers to thank) Can Human Rights Survive? It is still easily my best-selling book (not a difficult achievement admittedly). I started mine at LSE (where I work) and then went to Durham (where some of my friends who violently disagreed with me worked and who were gagging to have a go at me) and from there to Belfast. (Dublin was ruled out: a bit too foreign for Miss Hamlyn it was decided.) The bequest paid my way, rewarded the attendees with a drink afterwards and laid on a lovely dinner at each venue. (My mother drove across the border for the Belfast one, got herself into the dinner of course even though she was unexpected, and then mortifyingly made an after-dinner speech about what a good little boy I had been; in memory, though, this has grown into the highlight of my academic career.) The Hamlyns do that—bring people together (and not just relations), and when done well focus attendees’ thoughts on a legal issue which has been rendered accessible by a speaker who knows both their stuff and the nature of the audience, and who can do it all with panache.

Covid-19 has pinched all our lives even if it has not destroyed them, and this year’s distinguished speaker will have to make do without the canapés and conviviality. In giving the lectures at a time when over 800 lawyers have felt compelled to sign a letter to the Prime Minister and Home Secretary calling on both to desist from using hostile language against those in the law profession, Sharpston will surely be choosing to reassert the importance of the rule of law. I used to be pretty scathing about judges and lawyers and the Inns of Court and all their paraphernalia of privilege—one of my Hamlyns went on and on about this (hence my Durham friendly enemies finding lots to attack on the night). But now I am not so sure. I guess my hostility was all the wilder for what I had for so long taken for granted about the United Kingdom—that the government would respect the law; that separation of powers would not be regarded as dispensable; that the executive would not exploit the vagueness of the UK constitution to hoard power without regard to the consequences. It is thought that Emma Hamlyn founded her trust in memory of her father, though she never said so. I like to think that the magistrate would have been pleased with what his daughter has set in train, and that there will be many in the (remote) audience nodding in agreement, and many Emma Hamlyn’s too—decent, quiet observers of the UK who know something has gone decidedly rotten.

 

Constitution, Misc

A Remainer planning to be a Returner

 

 Why we must all be with Rees-Mogg

By CONOR GEARTY

Shortly after the 2016 referendum a friend of mind, an experienced diplomat, said of Brexit that it could best be understood as a type of cult, played out on a vast – and therefore catastrophic – national stage. We both knew of the likely range of disastrous consequences that would flow from the “decision” that the “people” had supposedly then just taken.

Since our conversation the cult aspect of Brexit has become even more evident: the setting of the day when the New Jerusalem triumphantly arises from the ashes of our European past (29 March 2019, at exactly 11pm); the blind assertion of faith in the future in the face of all the evidence that Brexit will be chaotic and debilitating; and – more recently – a growing sense on the part of the leading disciples of Brexit that the New Kingdom may take a while to emerge after all: indeed, over a period of fifty years on the estimation of Jacob Rees-Mogg in a recent exchange on Channel Four News. My friend went on to explain why so many cult followers choose death over acknowledgement of their error: they prefer to kill themselves rather than accept the deep nature of their error.  This is what we face on 29 March next year: a national suicide as an escape from the admission of terrible error – death rather than repentance and reversal.

What can those of us who are not cult members, who watch aghast on the sidelines, do? Must we assist the fatal process, seek to stop it, or just make our selfish plans to survive the liquidation as best we can, diverting our eyes from the mayhem around us, holding fast to our wallets and damn the rest? Many are working to secure a second referendum; some are add seeking to steel the will of MPs to vote down the whole thing when it gets before them in some shape or other in the Autumn; and others hope a new election will be called, and a Remain government is returned to power and so saves the day. All three options are superficially attractive and some of them – or a combination of all three – might well work. So too might the de facto surrender on all points which the Government may well feel compelled to make as the Brexit cliff draws closer – leaving the UK with all the constraints of Club membership (including the payment annual dues) but no say in its organisation or governance: a suicide of gloomy servitude.

But the difficulty with all of these options, if any of them were to succeed, is with the longer term: we have not the slightest guarantee that the Brexiteers will commit political suicide if they cannot take the country with them. Rather the reverse. They will live on, saved from collective annihilation, to preach treason and betrayal at every turn and before every audience. If Brexit were indeed to be formally reversed, UKIP would revive, and win a multitude of seats in the European parliament in the 2019 election (from which, as things stand, they will be mercifully excluded). At home the fights with the EU over the reversal of Brexit would suddenly become the new casus belli. The servitude option would produce exactly the same effect. Endless battles would ensue to take back control properly by throwing off the Brussels yoke, and damn the international agreements that would seek to stop us.

 

Nothing would be settled because none of the core problems that have given rise to this Brexit madness would have been addressed. What are these? First the sense of entitlement that pervades English culture, a sense of exceptionalism that makes even other faded post-colonial powers seem modest. Second, the ongoing absence of any kind of loyalty whatsoever to the EU, a relationship perpetually presented in transactional terms but with the bargains that come our way being always hidden while the costs get shouted from the rooftops. Third, the constitutional illiteracy of a society that boasts of having no constitution, where power is exercised informally in accordance with unwritten conventions and in which no serious reflection on the rule of law and respect for human rights has ever occurred. Brexit reversal or EU servitude would both exacerbate, not inoculate us against, these diseases of the collective mind.

So why must we be with Jacob Rees-Mogg? Every conceivable Brexit outcome overseen by Mrs Theresa May would be condemned from the sidelines by the chief Brexit cultists, who would claim they could have done better, that the “Remainers” have had their clever way (whether reversal or servitude) or that the chaos of a no-deal Brexit could have been avoided in some clever unspoken way had we been “tougher” with Brussels. The chief believers need to be in charge, leading the country over the cliff. A good start has been made with the ever perky Dominic Raab now getting his weekly tutorial in reality from Mr Barnier. But the whole ship needs to be sailed into disaster by a captain of unimpeachable cultist authority. And that is Rees-Mogg not Boris Johnston or Michael Gove, opportunists both. If it is to be surrender, servitude or chaos it must be unequivocally on the Brexiteers’ watch.

What then? Of course I hope for the best, with Rees-Mogg leading a dramatic reversal of Brexit on the eve of departure, with no domestic scapegoat to hide behind. But let’s assume the worst – that Rees-Mogg takes the United Kingdom into oblivion. That will be the end of him and his crowd as long as we still have elections – “Wait 50 years!” is not a resonant election slogan. Over time Northern Ireland will surely join de facto (and eventually de iure) with the Republic of Ireland. Scotland may be forced by chaos into independence and then a formal (fast-tracked?) application to join the EU will surely follow, and be successful.  Wales will agitate for the same. And England? I may be an emotional Remainer but strategically I am a returner. Sooner or later, its imperial delusions smashed, its constitution exposed as broken, its young people will have their revenge. A European Troika from (let’s guess) Latvia, Ireland and Greece will eventually be invited in to assess the country’s suitability for rejoining the EU. By then the Brexiteers will, on the whole, be dead or shouting from their political cul-de-sac. Rees-Mogg himself will have returned to the eighteenth century.

Of course the pain will be terrible. But it will be whatever course is now adopted – the catastrophe was the Referendum. Rees-Mogg may be right that it will take fifty years to get over it – but not in the way he believes.

Constitution

Devolution

The debate in the UK regarding devolution, is in a bit of a mess. Three separate processes are rumbling on for Scotland, Wales and Northern Ireland, each at a different speed. Calling the situation within England a “process” would be overly generous. Last year, George Osborne announced plans to establish a Greater Manchester Combined Authority (quickly and inevitably dubbed “DevoManc”). This body was negotiated in secret between Manchester council groups and George Osborne himself, and seems to offer us little in the way of a model that might be adopted for other areas. Demands for devolution to the English regions, or even an English Parliament, have yet to result in anything tangible.

Both Labour and the Liberal Democrats have committed themselves to the creation of a constitutional convention to tie these threads together and form a more cohesive process. But aside from the need to have such a common line, what approach should it adopt?

As part of our ConstitutionUK project, we have been exploring various models of devolution. Broadly, there appear to be two alternatives the UK might adopt: a big bang, federal model, established over a relatively short period of time; or an evolutionary, multi-speed approach, with various parts of the UK moving along at their own pace.

“Big bang” federalism has several things going for it in terms of consistency and simplicity. If tidiness were our top concern, it would be the automatic choice. However, it is clear that the nations in the UK are all at different places right now; marshalling them all into a “one size fits all” may result in a stalemate as, effectively, the process will have to go at the speed of the slowest participant.

A multi-speed approach avoids that, but presents its own challenges, and greatly increases the scope for confusion. Of course, in effect that is what we have right now. But it could be made more systematic, and the power to initiate the process of devolving powers could be taken out of the hands of Westminster (what Nick Clegg has dubbed “decentralisation on demand”). So, rather than spelling out the precise powers nations, regions and local government should have, our new UK constitution could simply detail the process by which those bodies might acquire such powers. Such an approach would be more along the lines of the constitution of Spain and its “autonomous communities” compared to, say, the United States.

The elephant in the room is what to do with England. Should it be treated as another nation state, alongside Scotland, Wales and Northern Ireland, despite it having more than five times the population of the other nations combined? Does replacing a parliament with responsibility for over 64 million people with a parliament with responsibility for over 53 million people even count as devolution, as far as the day-to-day lives of people are concerned?

So should we split England into regions which, when it was tried, came to a grinding halt with the referendum for a North East assembly in 2004? Or should our attention be more directly on local government? The focus in Westminster recently has been on the latter, and more specifically on “city regions”. But that still leaves significant questions to be answered over what should happen in the bits of the country which cannot reasonably be regarded as part of a conurbation.

These are thorny questions on which we are looking for people’s views over the next few weeks. Our community has already come up with dozens of suggestions we would like your response to. In this case (if in no other) you are very much encouraged to vote early and vote often!