Turning on Turtles

Stephen Sedley

  • Fundamental Values edited by Kim Economides et al
    Hart, 359 pp, £40.00, December 2000, ISBN 1 84113 118 0

About ten years ago, bans were imposed by two French municipalities on local funfairs where, for a few francs, revellers had been permitted to shoot a dwarf from a cannon. The official reason was the maintenance of public order, but the regional courts which initially overturned the bans pointed out that the shows were entirely orderly. The real issue was human dignity; but the people whose dignity was being compromised were the dwarfs who made their living from the spectacle and were among the chief opponents of the ban. The Conseil d’Etat, the final appeal court, restored the prohibitions, deciding that public order included public morals and that these were violated by assaults on human dignity even in cases where the victim was willing.

Once, before the onset of middle-class morality, the English courts had taken a similar line to the French regional courts. Chief Justice Holt, the first great judge of the Bill of Rights era, throwing out the indictment against a bookseller named Read for publishing a dirty book called The 15 Plagues of a Maidenhead, said: ‘This is for printing bawdy stuff that reflects on no person . . . If there is no remedy in the spiritual court, it does not follow there must be a remedy here. I wish there were, but we cannot make law . . . As to the case of Sir Charles Sedley’ – fined in 1663 for an offence against public morals – ‘there was something more in that case than shewing his naked body in the balcony; for the case was quod vi et armis he pissed down upon the people’s heads.’

That is the trouble with fundamental values. Whichever one you take with you as a guide, another one is waiting round the corner with a sock full of sand. The fundamental value of personal autonomy finds itself ambushed by the fundamental value of public decency, and the contest is made no clearer when both claim their derivation from the fundamental supervalue of human dignity. And why should human dignity be the bedrock? John Alder’s essay on environmental values in this volume cites a recent American article entitled ‘Should trees have standing?’ Alder examines the heterogeneity of the foundational arguments for environmental protection: do we support it because conservation will assist human survival, or because we like trees, or because we accept that other life-forms have as full a right to life as we have? Whichever it is to be, a still deeper foundation than human dignity has to be found; and finding it is in the end an act of faith, secular or otherwise.

I don’t mean this at all in a negative sense. Societies, or segments of societies, reach temporary spoken or unspoken agreements on what matters most to them, and for as long as the agreement lasts it is possible at least to orient dispute-resolution in relation to these reference points. Calling them fundamental values clothes them with a specious durability and universality which a moment’s historical reflection will dispel; but it also performs the legitimate task of seeking to limit for the time being what a society’s institutions can decently do. Even so, the point is well made by Alder that lawyers’ talk about striking the balance between competing interests is largely misplaced in a field (environmental law is only one example) in which success for either side inexorably involves damaging knock-on effects – for instance, the effect on the urban poor of planning decisions which protect beauty spots from pollution by concentrating it in factory belts, or the legislative ethic which sets out, as he puts it, ‘to minimise the suffering of animals but without too much inconvenience to ourselves’.

The unspoken and unadmitted message, one starts to fear, imprinted like a watermark on the pages of volumes such as this one (assembled for the 75th anniversary of Exeter University’s untrumpeted but vivacious law school), is that one of the most fundamental societal values is venality. Indira Carr, struggling impossibly to reconcile free trade with the protection of the environment (‘both the free trade promoters and environmentalists converge in having a common goal – the welfare of humanity across space and time’), tells the depressing story of the Gatt panel ruling which struck down the US prohibition on the import of yellowfin tuna caught by methods which involved greater collateral damage to other species (notably dolphins) than the US’s own standards allowed. Applying Gatt’s own rule of comparing product with product, the panel concluded that how a given product was obtained was not its business. Carr’s conclusion that if the US had prepared the ground better for the embargo it might have won the case is not, I fear, the point. The point is that the US embargo had been an efficient form of disguised protectionism against Mexican competition; and, with fine irony, it perished by the sword by which the US lives. Moreover, because anthropocentricity happens to have given dolphins friends other species lack, one consequence of the tuna-dolphin deal in the US, mentioned in passing by Alder, was that endangered species of turtle were put at risk instead.

No gain without pain, then. Adam Smith, as we are reminded in Erika Szyszczak’s essay on free trade as a fundamental value in the European Union, had no problem identifying which rights were fundamental: ‘To prohibit a people,’ he wrote, ‘from making all that they can of every part of their own product, or from employing their stock and industry in the way that they judge most advantageous to themselves, is a manifest violation of the most sacred rights of mankind.’ The administration of the EU Treaty by the European Court of Justice shows little drift from this ideological anchorage, secured to it by what Szyszczak describes as an ‘aggressive interpretation of the fundamental freedoms necessary to maintain an internal market . . . By appealing to free trade and within that concept a freedom to trade as an (economic) fundamental value the Court avoids conflicts over fundamental values which may be held in the member states.’ The Court’s defenders would say that it is doing no more than the member states, by signing the Treaty, have themselves agreed should be done. If so, the shift Szyszczak goes on to identify – though hardly ranking as a new fundamental value – is significant. Increasingly, she notes, individuals and companies are able to bypass national governments and enforce their European Community rights directly in their own national courts. But in spite of provisions in the EU Treaty commanding respect for human rights and animal health, the process shows little sign of fulfilling Indira Carr’s dream of a common mission. When the NGO Compassion in World Farming tried to stop the live export of veal calves, the European Court of Justice said: ‘A ban on the export of calves would, as the United Kingdom has pointed out, affect the structure of the market and, in particular, would have a considerable impact on the formation of market prices, which would interfere with the proper functioning of the common organisation of the market,’ which is true but not exactly the point.

Reflecting on the new possibilities of multiculturalism in Eastern Europe, Istvan Pogany acknowledges that if you take the treatment of Roma as a test, things are, if anything, going backwards. The European Court of Human Rights, now 43 nations strong and still growing, has shown, he says, ‘little inclination to accommodate the cultural requirements, or differentness, of Europe’s Roma’. The leading case he cites is, tellingly, not from the Balkans but from the UK. It is the UK, too, which John Bridge examines in a rather too sanguine account of the clean-up of public life since the mid-1990s. This is not to say that we are not behaving better in our political life than we were; but it would be useful to look – as Bridge does not – at some of the parts Lord Nolan’s reforms have not reached. Some minor scams which escaped Nolan, such as the merchandising of MPs’ addresses (for a sizable fee MPs gave as their home address the office of a lobbying organisation, to which Parliamentary papers would then be delivered in advance of publication), have become less common because Parliament’s own routines have changed. The Commons creditably went beyond the Nolan proposals by putting an outright ban on all paid advocacy and requiring disclosure of payments for Parliamentary services, though not of other earnings. But as another Exeter academic, Michael Rush (not represented in this volume), has pointed out, the first set of register entries under the new dispensation showed only one MP in five without any outside sources of income. ‘What these figures suggest,’ Rush says, ‘is extensive outside interests in general, and significant extra-Parliamentary income in particular, among MPs.’

Unexpectedly, Anthony Musson’s chapter on legal ethics in the age of Bracton – the 13th-century legal scholar entombed in Exeter Cathedral – has quite a lot to say which is of contemporary relevance on this and related scores. During Bracton’s lifetime the judicial oath – to do ‘right justice’ to the best of the judge’s ability – was expanded to include a forswearing of all gifts from litigants. Embarrassingly, it was a Master of the Rolls, Sir John Trevor, who in 1695, when he was doubling as Speaker of the House of Commons, was found to have taken a large sum from the City of London to arrange a legislative amendment which would reduce the City’s poor-rates; and it is the motion by which Parliament censured him that remains the source of its own rule against the venal intrusion of economic interests. What still needs debating is whether the Register of Members’ Interests is an adequate means of enforcing it.

The effect of the recent reforms has been, in fact, to affirm the legitimacy of accepting retainers from outside interests, all of them putting MPs under at least the appearance of an obligation which would be entirely unacceptable in a judge, and to endorse a culture of moonlighting which would be unacceptable in any ordinary job one can think of. It is not unduly idealistic to regard the integrity of Members’ judgment, however constrained it may be by the party system, and the devotion of their time to the job to which they have been elected, as fundamental values worth not only protecting but insisting on. The constitutional case remains tenable for substantially increasing MPs’ salaries, reducing their numbers if necessary, guaranteeing them a redundancy payment or a pension when they go, and expecting them meanwhile, like other people, to devote their working time to the job they are being paid to do. Among other things it might position them on slightly higher ground when they resolve, as Parliament one day soon must do, the continuing oddity of bishops and judges sitting by right in the upper legislative chamber of a democracy.

Musson’s essay on Bracton also points us to the first historical indications of a tension which is if anything further from resolution now than it was then: the tension between law and justice. Both values have a claim to fundamentality: law because it is universal and certain, justice because it is fair. In 1345, Chief Justice Shareshull said: ‘No precedent is of such force as that which is right’; and few judges since then have escaped uncomfortable nights on the Procrustean bed of precedent. Kim Economides’s introductory essay grapples with the need of lawyers to come to terms with some incurably ambiguous values (reasonableness, order, freedom); but lawyers are by definition partisans, and their ethical codes are in most respects the Hague Conventions of litigation and negotiation, closer to rock bottom than to lofty heights. While Economides is right to contest the gibe that lawyers’ ethics are an oxymoron, it is an oddity that legal training in this country involves very little in the way of ethical studies compared, for example, with the United States. Even so, what in my experience counts more than ethical codes is ethical culture, something far less definable but increasingly far more significant. On it depend such things as whether an advocate will make use of a technically available point which might help his or her client but would be unfair to the other party or damaging to the law itself. It is here, much more commonly than in formal rules, that the tension between the duty to the client and the duty to justice is confronted and – for better or for worse, but more often than the public think for better – resolved.

Economides asks the important question whether the bringing of the European Convention on Human Rights into our legal system last October, contemporaneously with the restructuring of legal aid and its withdrawal from most personal injury claims in favour of conditional fees, is going to affect not simply what lawyers argue about but how they behave. Leaving aside the problems of access to the courts, UK lawyers now have in many classes of case to win if they are to be paid. There is no reason in principle why this should lead to a lowering of ethical standards. Fees for winning have been enhanced to compensate for the losses; and no-win-no-fee has always been the rule in the United States, where ethical standards are not unknown or unobserved. Even so, the slashing of the legal aid bill, while it has put a smile on the face of the Treasury and while it has stopped some scandalous overcharging (which could have been dealt with by tougher management of legal aid), is going to happen chiefly at the expense of the thinner professional cats and kittens, while the fattest cats continue to prosper on privately funded work.

Underlying these issues are yet more questions about fundamental values. Is the most important thing that people who believe they have been wronged should be able to find a lawyer who will take their part; or that lawyers should behave well, even if it costs their client the case; or that justice and not law should have the last word? Andrew Tettenborn’s essay addresses the last of these in pithy and discomfiting terms, inspecting the impasse into which the law has been backed by the expanding range of claims for damages for negligence, each increment predicated on the previous one, and moving, it would seem, towards a situation in which anyone can sue anyone for anything. It’s not difficult to agree that liability has to stop somewhere; that if the courts can’t do it by some grand principle they will have to do it pragmatically and let the rough edges show; and that we can’t have Health Service and educational and social work professionals dogged by the threat of litigation if they fail to fix every problem. It’s a lot harder to apply that reasoning when you get a case – as we have recently – where the UK courts shut the door on claims by children who (if their lawyers’ account was right) were left by social services in the hands of parents who were known to be starving, neglecting and physically abusing them. Why, one would want to ask, if a patient whose doctor makes a negligent diagnosis can sue for all the consequent suffering, should such children be worse placed? If there is a reason, Tettenborn contends persuasively that it has to be simply that while the doctor’s duties are owed to the patient, the social worker’s are owed to the state. But can such a distinction be morally made by the law? The House of Lords decided it could and should be: social work was a societal, not a personal, service. The European Court of Human Rights reached an opposite conclusion because it started from a different premise – not the legislative purpose of the social services scheme but the Convention right not to be subjected to inhuman or degrading treatment. It would be hard to say that either tribunal was not looking to fundamental values. It just depended which.