POLITICS
How South African judges undermined the rule of law in Britain
BRUCE ANDERSON
It had seemed unlikely that their Lord- ships would act in this way. In his earlier ruling, the Lord Chief Justice, Lord Bing- ham, had been emphatic. Whatever one thought of General Pinochet, he was enti- tled to immunity; that was that. No stern and unbending conservative, Lord Bingham is a most highly regarded lawyer. It seemed that his ruling was authoritative and the appeal to their Lordships merely pro forma. But some Law Lords had other ideas.
Five of the 12 Law Lords would generally hear cases such as the Pinochet appeal. In this case, the process of selection had an interesting consequence. There are at pre- sent two Law Lords of South African ori- gin, Lenny Hoffmann and Johan Steyn, both of them emigres during the era of apartheid. Both of them were chosen for General Pinochet. It is reported that, on hearing this, Lord Bingham's first reaction was that General Pinochet would start the proceedings with two votes against him. The Lord Chief Justice was right.
The two South Africans are interesting characters, but Lord Hoffmann has the greater reputation among his fellow lawyers. Lord Steyn is admired for the stand he took in South Africa, the more so because he is an Afrikaner. But he was never considered to have demonstrated outstanding ability at the English bar; scrupulously politically correct, however, he adapted to the times and won accelerated promotion. But his judgment in the Pinochet case neither rebutted Lord Bing- ham's arguments nor the doubts about Lord Steyn's intellectual prowess.
Lord Steyn tried to deal with the immu- nity question by distinguishing between acts of government, which would be covered, and actions such as torture and genocide which by their nature cannot be govern- mental. Anyone who commits such crimes is, therefore, acting in a strictly personal capacity and cannot claim immunity. But Lord Steyn is refuted by vast tracts of mod- ern history, including the history of South Africa. Does his Lordship really believe that none of the acts of cruelty committed during the apartheid era were governmen- tal actions? Once the question is posed, the proposition's absurdity is self-evident.
In a dissenting judgment, Lord Lloyd went to the heart of the question. The immunity claimed is not primarily General Pinochet's; it is Chile's. Chile is a sovereign government, entitled to decide when it will allow its citizens to claim the immunities which are available to diplomats and heads of state, and when it will waive them. We on our part are not bound to accept Chile's ruling. It is open to us to say that any state which grants immunity to the likes of Gen- eral Pinochet is not a state with which Britain can entertain diplomatic relations. In that case, all diplomats would be with- drawn and no heads of state would pay vis- its, so questions of immunity would no longer arise.
But that is not how we have treated Chile. Relations are cordial, embassy life flourishes, and General Pinochet has been an honoured guest in London. We have accepted, not the General's rights to immu- nity, but Chile's right to exercise the privi- lege of all sovereign governments with which we have diplomatic relations. If Lord Lloyd's argument is accepted, we are hardly more justified in detaining General Pinochet than the Chilean government would be in arresting the British ambas- sador to Chile.
Though his arguments remained unrefut- ed, Lord Lloyd did not carry the day. By a vote of three to two, their Lordships decided to establish their own foreign policy. There was another interesting aspect to the majori- ty vote: the silence of Lord Hoffmann. A man who knows how to enjoy himself, Lord Hoffmann has rarely been accused of politi- cal correctness and has always won the respect, as well as the affection, of his fellow lawyers. Although a liberal, he is widely regarded as a tough-minded one, especially in commercial cases. Some of their Lord- ships are inclined to believe that every case in front of them must turn on a moral issue; Lord Hoffmann displays an astringent grasp of practicalities and an impatience with redundant moralising.
But not, it seems, on great issues of for- eign affairs. Lord Hoffmann's wife works for Amnesty International, which had inter- vened in the Pinochet dispute against the General. Some judges might have felt that even the scintilla of a suggestion of family- induced partiality would have debarred them from trying a case. Equally, if it been revealed that one of the dissenting Law Lords' wives was a prominent member of the Anglo-Chilean friendship society, would everyone have been so relaxed as they were over Lady Hoffmann? But it would have been ridiculous to disqualify Lord Hoffmann on account of his wife's views; his own convictions are far too reso- lute to be in need of wifely reinforcement.
But in this specific case we still do not know how they operated; he did not give an opinion but merely concurred with the anti- Pinochet majority. This is uncharacteristic; Lenny Hoffmann is never backward in coming forward and one might have thought that in such an important judgment he would have wanted the Hoffmann intel- lect to be part of the record. He might also have been more effective than Lord Steyn was at rebutting the dissenters' arguments. He may have concluded, however, that majority is the best rebuttal. That, after all, is how Tony Blair approaches constitution- al questions. The whole business is profoundly unsatis- factory. The highest court has ruled, with- out convincing many observers that its rea- soning was sound, while a different cast of Law Lords would probably have arrived at a different decision. But we have seen noth- ing yet. With the incorporation of the European Convention on Human Rights into British domestic law, the scope for judges to give the force of law to their owe political opinions will be greatly increased. Lords Hoffmann and Steyn left South Africa inter alia because they believed that under apartheid, politics would inevitably undermine the rule of law. They have now made a scurvy repayment to the countfY which nourished and honoured them 01. exile. They have helped to ensure that 10 Britain too, the rule of law can be under- mined by politics.
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