Interesting and undoubtedly correct as the article by Stephen Grosz on the matter of human rights and internment without trial may be (see [2005] 27 January, 14), the more serious point is a general one. Much of what is happening in legislation nowadays reflects an alarming flight from principle, which is being replaced by a spurious pragmatism. To chose just three simple examples:


  • What is now a conditional fee agreement (CFA), with a plethora of surrounding regulations, would have been a crime until the 1950s and unethical and unenforceable until much more recently;



  • Formerly, if a client suggested a course of action that would be illegal, a lawyer had the right and probably the duty to inform the client that he should not carry out that process because he would be committing a crime. Whereas now, in money laundering cases, it is an offence for the solicitor to tell the client that to do so would be a crime;



  • For centuries, nobody could be detained except under due process of law, which included being given full details of the reason for the detention and an opportunity to respond to any allegations. Whereas now that protection does not apply to someone who is suspected of being a terrorist or having terrorist connections.



    • The first two of these have already caused enormous complications, including countless hours of expensive effort on behalf of practitioners and judges alike - and on the face of it the third is going to do the same. In none of these cases has the fundamental principle behind the original position been reconsidered to find out whether the change that is proposed is really merited.


    When people think they are acting pragmatically, it is a common error to assume that the only effect of the action they take is the effect that they desire.


    The truth is usually far from being that simple. The rows about costs in CFA cases have already indicated how little was understood about the process before it started. It will not be long before the same is said of many other changes that have occurred recently.



    Andrew Johnson, Batt Broadbent, Salisbury