Michael Mansfield QC: Human Rights
This is a transcript of the Podcast Episode on this website when Michael Mansfield QC spoke to Baines Law. It can be found on this link Podcast – Barry Baines
BARRY BAINES
Welcome. This is Barry Baines from Baines Law, a legal miscellany, where we regularly podcast about cases and legal issues, as well as talking to professionals and others who have experience of our legal system. Today’s guest was called to the Bar of England and Wales in 1967, became Queen’s Counsel in 1989 and was elected as a Bencher of Gray’s Inn in 2007. He is the President of the Haldane Society of Socialist Lawyers and Professor of Law at City University. Head of Nexus Chambers, he has been described as the King of Human Rights work by the Legal 500 and a leading Silk in civil liberties and human rights. He has participated in many prominent and controversial cases and inquests involving accused IRA bombers, the Birmingham Six, the Bloody Sunday massacre, the Hillsborough disaster and the deaths of Jean Charles de Menezes and Dodi Al-Fayed. He currently represents families of those involved in the Grenfell Tower Inquiry and the Salisbury Novichok poisoning. We extend a very warm welcome today to Michael Mansfield QC. Michael, thank you very much for joining us today.
MICHAEL MANSFIELD
Pleasure.
BARRY BAINES
Some think that the Rule of Law has been so undermined in recent times, particularly by those who make it, that a large proportion of the public have lost faith in the concept. And I have in mind recently, of course, the breaches of COVID regulations by members of government and those advising it, and Members of Parliament lobbying on behalf of outside organisations from whom they receive payments. Can faith in the Rule of Law be restored in your view?
MICHAEL MANSFIELD
I think it can be; I think it has to be because there isn’t much else left if once that goes. And, and in fact, as a lawyer, you know, you are hanging onto that vestige because the democratic system and the ballot box have really been devalued by a succession of politicians who have really I think performed in a way that politicians, I suppose, always have performed. In other words, at the end of the day, their interest is power. They’ll do anything to get it and do anything to hang on to it. So that’s it basically, and that’s why I think the clash between the Supreme court and the politicians, and the judiciary and the politicians over the last three decades where the Rule of Law has been upheld by the courts particularly in relation to how previous governments were dealing with detention, Belmarsh and terrorist offences.
And then obviously bringing it up to date, how the politicians were attempting in particular for Johnson to prorogue parliament without a democratic endorsement and so on. So at the end of the day – I never thought I’d hear myself saying it – the judiciary in fact have provided a form of bulwark against all of this to ensure that there’s – and I’ll put this way, “a vestige” – that a vestige is kept.
Of course at the present time you’ve just mentioned what’s been going on during COVID, which is utterly despicable. I chaired the People’s COVID Inquiry and there was a lot revealed by that along those lines. And I think the nation as a whole got it. Funnily enough, the partying is the thin end of the wedge, although it’s got more publicity than anything else, but it just indicates an arrogance not just by government but the whole lot of them.
In other words, they can go on partying while Rome burns. And as I say, it is pretty despicable that it’s like that.
Of course, now he he’s got himself into the Ukrainian issue where again the Rule of Law is being broken by a government, the International Rule of Law. Again, that I’m afraid is something that’s been done not just by Russia: America’s done it done; the United Kingdom has broken the Rule of Law which goes back to the Iraq war and the march which I went on and all the rest of it. So, this is a big issue. It seems to me that as a lawyer that’s the one part I can play, small though it may be, to ensure that as far as possible, we don’t lose sight of it. We remind people that it matters. It’s the only way in which we can, in some sort of civilised way, some sort of reasoned way, bring an element of accountability back into our system.
So, as you can tell, I feel very strongly about this area and where it’s all gone wrong. I’m afraid, you know, when Tony Blair intervened in the way that they did, in a military way, they set the scene. In other words, it gave carte blanche to other nations to do exactly the same, and it’s hardly surprising that that is what is going on now. Therefore, I think we need to reinvest in a United nations that works. It doesn’t work at the moment because the big nations veto everything. So it’s all got to be looked at again when there’s a moment. I hoped COVID might bring us to our senses. Maybe it still will.
BARRY BAINES
We’ve tolerated all this dirty money in London, for example, for years. And now the efforts of government may appear to be a little tokenistic to say the least.
MICHAEL MANSFIELD
Yes, I think what they are calling Londongrad? I mean, you know, it isn’t just the Tory party although they are prime and flagrant in the way they have espoused foreign money in this way and investments in this way, and I believe that one of the companies, which has a link to HS2 for example, has connections with Russia. So it follows the money in a sense, and principle has been thrown to the wind. We do all sorts of deals with countries which have got appalling records in human rights. I appreciate that with a lot of countries you might end up doing no trade at all, if that was the only criteria, but it seems to me that that has come way down the agenda. And I also think it’s, it’s illustrated currently by a Home Secretary who is living on another planet.
I wish in fact, she did live on another planet because her attitude towards particularly the immigrant issue at the moment is appalling – the way they’ve been treated. In other words, you know, mothers who have left their husbands behind because they’re fighting have to prove it pretty well, (oh, they say they’re changing it now) but the initial response was “Prove who you are and, oh, by the way, you’ve come to the wrong centre. It’s not in Calais, it’s in Lille; oh, sorry, we’re not ready in Lille yet, you have to go to Paris.” These are people with no money, no resources, nothing. What is the matter with these people? And Priti Patel is the face of it. And her attitude to lawyers is pretty unacceptable as well.
BARRY BAINES
I wonder if I may move on to Human Rights as you are one of the country’s foremost Human Rights lawyers, and I wonder what you make of the present government proposals to reform Human Rights Law. Do you see it as an attack on the European Convention of Human Rights, thereby placing more power in the hands of the Executive, or a step in the right direction under what the government calls its “enduring commitment to Liberty” under the Rule of Law?
MICHAEL MANSFIELD
Well, that’s very an interesting question. I don’t think it’s got anything to do with liberty. It’s very interesting, the libertarian view of this, which surfaced in the House of Commons recently when a number of Tory MPs stood up to defend the anti-vaxers and the protest, and all the rest of it, on the basis that we have a right to choose and be independent. I’ve never heard conservative MPs standing up for those kind of values, or most of them with one or two exceptions – Kenneth Clarke being one of them – but they espouse that principle suddenly, you know, freedom to do X, Y, and Z comes into the forefront. So I don’t think, you know, freedoms are something that readily come to as it were the average politician, certainly on the Conservative side, Labour a bit more.
But to answer your question, I think when they first mooted this reform was some years ago now when they said they wanted to reform it and have our own Bill of Rights. You know, what are they really talking about? Let’s take the Right to Life. Is it that the British Right to Life is different from everybody else’s? I mean, when you’re dealing with fundamental rights, it seems to me the Convention and the UN Charter and all the rest, have phrased it and framed it very explicitly. I think it is about this apparent need to control and for the Executive to control. In fact, you’ve got the colour of it through the present Prime Minister’s attitude to the Rule of Law and to Parliament. At the end of the day, once he got his majority he ended up doing what Hailsham, of all people, predicted – a sort of elective dictatorship.
That’s what we’ve got, an elective dictatorship. We’ve got the votes and we will do what we want. I think the electorate may be just waking up to the licence that they’ve provided him with and our system doesn’t prevent this except the judiciary. So I think reconfiguring human rights doesn’t make any sense because the basic ones are self evident. And if it’s that they don’t like the protocols and covenants that go with all these social and economic rights and so on – which they don’t because they associate those rights with workers’ rights, and the average person’s rights and challenges to government – which is why, you know, they’re trying to put judicial review on the backburner; they don’t want people to challenge them. So I think that their object in redrafting all of this is to ensure that the public don’t have the right to be protest on the streets, or at least not very effectively, and don’t have the right to challenge in court, or at least not very effectively. So they give themselves an autonomy. So that’s why they don’t want a European, as it were, route to rights.
BARRY BAINES
But, of course, if they do depart from the European Convention of Human rights very much, it’s going to place us in difficulties with our co-signatories, isn’t it?
MICHAEL MANSFIELD
Yes. I’m not a Brexiteer – it might be obvious – I’m a Remainer, but I’m not doing it from a sort of a didactic point of view or some kind of theory that is embedded in my head or something of that kind. It’s not a preset predetermined perception, but I think that leaving Europe and all the other things – in a sense diverging for a moment, I mean, what’s happening to Russia is very interesting that, people are just withdrawing support, in all sorts of fields. I think when we withdraw our support for basic principles (which I think we are about to do in what they plan) then the co-signatories, as you put it, and the people who felt we were all part of the same legal club, if you like, are going to find it really difficult to do business with us because, one, they won’t trust us anymore than we trust Russia at the moment; they won’t trust us, and there is already severe tension, I think, on that front.
One of the areas, for example, is the whole business about the border in the Irish Sea, the Northern Irish Protocol and so on. It’s a mess and it’s born out of a situation, I think, which is jingoistic. Boundaries in a sense can be a false way of measuring what is going on. But I think that what Boris has tried to do – and others, he’s not the first one to create this, this individualism – is detrimental. And therefore, I mean, when you think that after the second world war since Churchill and others, in fact, it was Conservatives who were at the root of the construction of a new framework of law internationally. Suddenly they’re disavowing it and saying, no, it’s not applicable; it applied then, but doesn’t apply now. If they are universal rights, they applied then and they apply now,
BARRY BAINES
The government considers that free speech has been unduly limited in favour of privacy by the Strasbourg Court as interpreted by the British courts. One of the difficulties, of course, is making general rules about matters which are always highly fact specific, as highlighted in the recent Supreme Court case of Bloomberg. Do you consider the law to be satisfactory as it stands, or might the government be in danger of upsetting a difficult balancing exercise?
MICHAEL MANSFIELD
This is a complex and rather difficult one to answer directly in the sense that there is a balancing exercise. I think on the one hand you do want transparency, certainly in political matters and certainly by government, because I think we are, none of us trusting (quite rightly) of what government agencies may profess to say and profess to do. And that was clear as you put a bit earlier in the procurement exercise during COVID and there will be more revealed, I suspect, on that front in relation to the COVID Public Inquiry which may get under way this year. So I think that, on the one hand, the transparency of government is important, but at the same time, you know, the boundaries of privacy are also important because you have at the door of all our lives, not only a global economy, but a global technique of surveillance, which governments make use of, and this was the whole point about WikiLeaks, and the rest of it is revealing the extent to which government agencies through global corporations are able to track and trace not just on a COVID front, but actually know exactly who you are, where you are and what you are buying, what you’re doing and all the rest of it.
So we’re way beyond, you know, Orwell’s vision of 1984; my God, that’s well past now. And with the advent of 5G, to which I’m opposed there, isn’t a thing in where you reside, where you are working, or you are living, or I’m working, living, that isn’t connected in some way. So the aspect of privacy in a sense has already practically been demolished. I give one example, Alexa, you know, it’s a two-way process. Alexa is picking up conversations even when it’s turned off. Your fridge is doing the same. People have got to recognise that we are now in a connected society. It may have some advantages, but it has a lot of disadvantages, and I don’t think the law has really caught up with the extent to which the tentacles of intrusion are pretty well everywhere.
I try to be cautious, but the fact is, you know, every time I use a mobile phone, I’m concerned that the, the material on the motor that I speak about or record on my phone can get hacked into very easily by those who know how to do it. I don’t myself, but I think the law makers have to catch up because they have to ensure that the legislation is there to protect us from invasion and, and that isn’t really happening.
For example, I run a charity with my wife called SOS, a Mental Health Welfare Charity. You get, as far as I can see now on the social media, the media highway, really intrusive, disgusting and (revealed recently) bullying, and they are videos which are encouraging you to take your own life – “snuff” movies.
So the only way you can do anything about it is to try and persuade Google, or one of these things, that this kind of material cannot be countenanced. It’s not acting like Mary Whitehouse; it’s not passing a moral judgment. It’s where you are allowing material onto the social media highway which is extremely dangerous. It’s as dangerous, if not more so than, you know, almost, but not quite, as a chemical weapon which they’re talking about at the moment. So I think the law has got to go a long way and we’ve got to recognise that the companies in communications, which now is huge because we don’t do anything without Zoom, I think that’s what’s got to be looked at more carefully with more rigorous inspection. I think at the moment, because of the money involved, there’s a sort of a reluctance to go into all these areas. So I don’t think the balance has been struck properly.
BARRY BAINES
I wonder if I can now change tack a bit and move to representation and legal aid funding which, in recent years, as you know, has gone from bad to worse. The general funding of the Criminal Justice System is now so appalling that the Criminal Bar is contemplating action against the government. We have a situation where those who can afford representation get it, but an awful lot have minimal or no representation. What’s your analysis of that, and how do you see it evolving?
MICHAEL MANSFIELD
I’ve been involved in campaigns, and I have to say the Labour Government were in the vanguard of Legal Aid change. So it’s again not confined to a Conservative Government. I think it’s shameful, what has happened, because originally at the end of the Second World War – I sound like John Cleese in a Shoebox – but you know, when I was a boy Legal Aid, the Health Service and so on, and Education for all, were major pillars of a new society being built. Clement Atlee did a quite remarkable speech at the Central Hall, Westminster in, I think it was 1946. I’ve only seen it on film needless to say, but he had a real vision of a society in which we we’re given as equal an opportunity as is possible, given the resources, whether it’s housing, education, legal support, health support, and that, is a wonderful vision.
It took off and the seeds of all of this were planted then, but I’m afraid, you know, with the advent of Thatcherism and all that, all these assets have been stripped away, been put out to tender in the private marketplace. We have a Health Service, which is on its knees, and was on its knees before COVID never mind the effect of COVID. I don’t know that people have necessarily recognised the way in which the public have been misled about how resources have been deployed. I think that Legal Aid falls into this bracket. When I started very little legal aid was available. So I’ve seen it all. When I started, I was obviously doing little bits of work, so it wasn’t so obvious. The longer I stayed, obviously Legal Aid grew. The majority of people can’t afford to pay for a lawyer to defend them for well, even one day or two days, or sometimes the cases go on for week, sometimes months.
So it’s got to be funded centrally by the State for most people because a criminal allegation, whether it involves a prison sentence at the end of it or not, is extremely serious for most people. You don’t want a record. So I see it as a fundamental right. There’s no point in having Human Rights Conventions or Bills of Rights, if you can’t access them and you can’t enforce them. So at the end of the day you have the lawyers prepared to do public service work, which on the whole I’ve done, I’ve done some private work as well, but basically 90% of my work has been Legal Aid from the beginning. And therefore myself and others who come through that generation are deeply affected by what is going on at the moment. I’m getting on in age, you can probably tell, but I I’m concerned about the next generation and the one below that because people are leaving the Bar.
Now the same is happening with solicitors doing criminal legal aid if you can get. It is just not workable because they can’t cover their expenses. So that means you don’t get the solicitors who are really competent in doing this work. They’re saying they can’t carry on doing it. The government, to some extent, isn’t bothered. Why isn’t the government bothered? They’re not bothered because they don’t want the lawyers. Basically they see them as an interference. Tony Blair talked about it. Priti Patel talks about it. We’re seen as some kind of “lawfare” is the common word that is used. So I don’t think they have a real interest in ensuring that it’s properly funded. Of course, if they’re asked, they will pay lip service to the need for a properly funded service. I think, unless this government or whoever succeeds it if Boris stays on has got to face certain reality.
The only way of bringing home the reality – unheard of in my younger days for the Bar to strike, in fact I think it was forbidden to come out well, not quite on strike, but to have a no returns policy. On that they they’re asking the Criminal Bar Association to sign up to a form of direct action in order to make it clear that people can’t survive. There’s the common analogy that most junior barristers, middle ranking barristers even, get paid less than somebody who comes to mend your tap. I’m not saying plumbers shouldn’t be paid what they’re paid; what I’m saying is barristers or lawyers or solicitors should be paid, you know, a living wage to do what they do. I think the thing has come out of control. I appreciate there are lots of demands on the economy, national health, legal aid housing, and at the moment, obviously they’re just innumerable.
But what interests me is that when the need arises as it did over, COVID, it’s quite remarkable how trillions of money is suddenly being culled out of the air because it had to be to build, you know, Nightingale hospitals or whatever they had to do at that time because they hadn’t prepared properly. Money was found. I’m a firm believer that if they want to spend the money, they can find it because they have a prognosis about the expansion of the national productivity rate and the fact that it can bounce back. They can begin to pay back debt, but it’s a nation. All the nations are living in debt anyway, and Russia’s about to write theirs off. So, you know, it is possible to fund these things if you want to, which of course the government wanted to in relation to at the beginning of COVID because it was to deal with survival, but Legal Aid is dealing with survival. And I think, you know, it’s not being paid sufficient regard because successive governments have had a rather disdainful attitude. Although if you look at the House, one of the biggest interest groups, funnily enough, is lawyers.
BARRY BAINES
Yes. I suppose this really neatly dovetails into what I want to ask lastly, which is in order to get the maximum discount of one third off sentence defendants are being asked to tender a guilty plea, or to indicate a guilty plea, at the very first appearance before a magistrates’ court, usually when they’ve not seen the evidence against them and often have not had legal advice. What would you say to those people who say “Well, they know if they did it”?
MICHAEL MANSFIELD
I’ve have strong views about this one because, obviously, having been involved in a large number of high profile, miscarriages of justice, as they were called in the 1980s, Birmingham Six, Judith Ward, The Tottenham Three, The Cardiff Three – God knows, hundreds of them – my concern is that when you have, as they do in the States, a very heavy system of plea bargaining so that you know you can get a lot of discount one way or another in relation to sentence, whatever the proportion, depending on where you are on the offence and so on, it puts an enormous pressure on people who really are innocent because if they’re having to pay for it, it means they certainly don’t want to spend a lot of money on a trial. Secondly, if it means they might not go to prison and they avoid that risk, they’re prepared to take it
In other words, they’re having to balance their innocence against these other factors. And if you put on top of that, you know, the fact that the earlier you do it the better, obviously it’s not the question they must know whether they did it. Yes, well, I’m sure they do know whether they did it. My concern is for those who didn’t do it but feel constrained. Of course there are quite a number of the early miscarriage cases where basically although they didn’t plead guilty, that there were cases where, you know, they’ve felt under severe pressure because the evidence is very strong or whatever it was. But once you put people under pressure, whether it’s a pressure of an interview or pressure that they will get time off, you are going to encourage the risk of more miscarriages coming in through the back door.
In other words, once you’ve pleaded guilty, it is extremely difficult to undo it unless it’s an equivocal plea. On other words, you didn’t make it entirely clear, or you can honestly say you were misadvised, which means having a go at the lawyers probably, or you were not advised about the elements of the law and all the rest of it. You have to get the lawyers on board to say they’d made a mistake and they didn’t give you the right advice or you are mentally ill or something of that kind – other than those extreme circumstances, changing a plea of guilty whenever it goes in, withdrawing it even within the same proceeding so you say, well, I pleaded guilty a couple of weeks ago, but I want to plead not guilty. Now the court’s going to look at it very sceptically and you may not be allowed to withdraw it.
You have to have pretty good reasons. So it seems to me, it is a licence to, as it were, to traverse justice and there should be no pressure of that kind being placed on people. There should be a recognition if you have pleaded guilty, and in addition to that, it’s a case where you can show real remorse and, you can convey to the court that the plea that you entered, wasn’t just done for the sake of it. It’s done because you really did do it. You were really involved. You’re upset for the victims and all. And a lot of people don’t do this, but I think in those circumstances, then it should be understood in the system that the people who fall into that bracket of a genuine plea with a genuine remorse, they get something taken off.
But if you’ve pleaded guilty, you don’t necessarily get a discount for this if in fact it, it may have been just token. So I think, you know, it needs to be looked at very carefully. I know the argument the other way is economic, or we get people through the courts much quicker. People are much happier they’re out of the court and all the rest of it, in which case it’s Supermarket justice. I hope we don’t descend into an arena where justice becomes a parking ticket.
BARRY BAINES
Yes. I’m afraid “Supermarket justice” seems to sum it up, doesn’t it?
Michael, it’s been a great pleasure talking to you today. I know this was a diversion as you are heavily involved with the Grenfell Inquiry. May I wish you every success for your efforts on behalf of the families involved in that. Thank you very much.
MICHAEL MANSFIELD
Thank you.
BARRY BAINES
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