Common Law Appeal

Desmond Browne QC reports on a successful Commonwealth Law Conference


During part of our annual discussions at the European Commission in March, a senior member of the Commission observed to Nick Green and me that in the English common law, we had a great export product.


The Commonwealth in Hong Kong

The truth of this remark struck me at April’s Commonwealth Law Conference in Hong Kong. The conference had last been held in Hong Kong in 1983, when it was addressed by Lord Hailsham, then Lord Chancellor. The great man could hardly have foreseen the circumstances in which the conference was to be held a quarter of a century later—in a Special Administrative Region of China, not part of the Commonwealth, but with a judiciary headed by Chief Justice Andrew Li still applying common law principles a decade after the hand-over in 1997.

The delegates to the conference came from three dozen Commonwealth countries, from Antigua to Zambia. For each it seemed that the universal appeal of the common law was the flexibility which wraps up certain inflexible core principles. These, as Chief Justice Li reminded us, were the rule of law and the dignity of the individual. To this end the Commonwealth Lawyers Association voted to signal its opposition to the death penalty. This is not an easy subject for some members of the Commonwealth, any more than the issue of criminalisation of homosexual practices. There was a moving plea from the recently retired Australian High Court Judge, Michael Kirby, seeking equality of treatment for gays. It began with him memorably casting his notes over his shoulder, and then speaking from the aisle of the hall using a karaoke-style microphone. That he should have been heard with such close attention, even by opponents, was a tribute to the collegiality of common lawyers.


One country, two systems

The conference also displayed to delegates how the principle of “one country, two systems” has worked to address the fears of those who in 1997 warned that handing back the colony to China would see the end of fundamental freedoms. To take an example from my own field of practice, the most liberal analysis in recent times of the defence of fair comment has been the judgment of the Court of Final Appeal in Tse v Cheng. The case has been applied with respect in the courts of this country, and is but one example of the growing and increasingly valuable contribution of the Court to the jurisprudence of the common law. Of course, all of this depends on a strong and independent judiciary, displaying the eternal vigilance of which Edmund Burke spoke. Just as important is a strong and independent Bar, and under the leadership of Russell Coleman SC, a thriving Bar of 1,000 members provides just what is needed for the future.


A Bar Council in Vietnam?

The independence of our Bar has attracted the interest of the Vietnamese, a healthy socialist market-economy, but still a one-party Communist state. A large delegation led by the Deputy Prime Minister was in London just before Easter to examine our legal system, and consider what code of conduct might be adopted by the proposed national Bar Association which Vietnam hopes to set up in May. At a subsequent meeting with the Minister of Justice in Hanoi it was emphasised to me that the Vietnamese wish to have a legal profession operating under rules which brings them into line with the international community when dealing with commercial matters.


A regional Administrative Court

Back in England the new term sees the start of the regional operations of the Administrative Court. Supervised by Beatson J and Langstaff J respectively, the court will sit in Cardiff and Birmingham, and in Manchester and Leeds. In the fullness of time, Bristol may yet become the fifth regional centre. Although certain classes of case such as control orders, terrorism, financial restrictions and cases in which a special advocate is instructed will continue to be heard in London, it is a welcome step in facilitating access to justice by enabling cases to be heard in the most appropriate location. Equally welcome is the selection of regional practitioners to join the Treasury Solicitors’ Panel.


The loss of Edmund Lawson

Finally, a sad note on which to end. A huge congregation in St Alban’s Church on 2 April said goodbye to Edmund Lawson QC. As Mukul Chawla said in his moving address, for all his stellar success, Edmund never believed that he was as good as he really was. This was doubtless what drove him to work quite as hard as he did; yet somehow he managed to find time for advocacy training, passing on his forensic techniques, both at home and abroad (including in Hong Kong). Edmund died on the same day as his old clerk, Tommy Dixon. If St Peter is interested in what makes our referral profession great, he could hardly have better arrivals from whom to learn.

Desmond Browne QC is Bar Chairman

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