An epidemic of back-slapping spreads as the 800th anniversary of Magna Carta – sealed at Runnymede, England on 19 June 1215 – draws closer. This Grand Charter emasculated the divine right of kings and produced “Britain’s greatest export, liberty and the rule of law”. The constitutions of the US and India, the Universal Declaration and European Convention (of Human Rights) have all been inspired by MC. For all that I’m with the party poopers.
Its easy to justify. After Yugoslavia, Iraq and Libya – and now Syria and the Ukraine – the fear of another consignment of British democracy is palpable. Moreover meticulous research shows that voting is meaningless for the majority.
More personally my encounter with the rule of law in England (Maistry v BBC) has been disappointing. I’ve learned that at Employment Tribunals evidence is of little consequence and may be ignored, invented or twisted at will; the common law does not matter; the application of the law itself is optional; the principle of legal certainty is a sham; conflicting judgments are fine; fallacious, irrational and vindictive reasoning is perfectly acceptable and the intentions of Parliament may be swept aside at whim. Even worse, much of this costly window-dressing is tacky. The poor, it seems, do not deserve to be shafted with finesse.
I have shown how fabricated documents can be overlooked, discredited witness statements changed, cross-examination blocked, spectacular contradictions ignored, the perversion of judicial instruction forgiven, amnesia privileged, evidence tainted and much more.
Last year, Lord Leveson demanded the Director of Public Prosecutions carry out an urgent review of a case in which a man pleaded guilty to charges which were “unknown in law”. James Richardson, editor of the criminal law bible, ‘Archbold’, said the case illustrated the depths to which the Court of Appeal had sunk. “If this is the standard to be expected, then it is no wonder that things are going wrong on a massive scale lower down in the hierarchy…”
“The upshot is that a court of three senior judges failed to notice that, far from being in prison, the defendant should have been set free…The Crown Prosecution Service was responsible for an indictment that was defective in at least four distinct respects. And there were the advocates on both sides and two judges in the crown court…Procedural lapses are indulged by the courts. The more they are indulged, the more they occur; the more they occur, the more they need to be indulged…”
“This downward spiral has culminated in Anthony White’s case passing through the hands of five judges and at least as many lawyers without any of them noticing it was devoid of legal foundation; or if they did, without seeking to have it put on a proper legal foundation.”
The judicial hubris on display in Maistry v BBC (ten judges this time) stretches beyond incompetence and indolence. But fish rots from the head. In ‘The Establishment’ Owen Jones describes the confluence of business, political and media interests that have reduced Parliament to a vulgar scam for looting the State and fleecing the poor. Democracy is a carnival, press freedom a hoax; the ruling elite are cheap and brutal thugs.
This is mainstream discourse strictly limited to the permissible but there has been little serious effort to rebuff the central thesis. The book is remarkable largely for describing and outing the ‘new normal’, the political culture accepted by Britons and within which the law operates.
Conor Gearty – law professor at the London School of Economics – says the serious miscarriages of justice of the 80s “which eventually brought the reckless reactionary partisanship of the senior judiciary to center stage” have been conveniently forgotten. Instead the present generation of judges is increasingly convinced these are days of enlightenment, that the common law is libertarian when it comes to individual rights and that the Human Rights Act threatens parliamentary supremacy.
Although none of this is true, judicial nationalism has been encouraged by Prime Minister David Cameron’s commitment to repeal the Human Rights Act. The Act implements the rights protected under the European Convention of Human Rights administered by the Strasbourg Court. For all its pretensions the UK is just one of 47 signatories and this hurts. Lord Neuberger, president of the Supreme Court in Britain, says “the loss of the Empire and the loss of world premier league status has inevitably caused problems to the national psyche”.
A speech by Brenda Hale, deputy president of the court was themed ‘the Empire strikes back’. Her preference was ‘UK constitutionalism on the march’. She said, “After more than a decade of concentrating on European instruments as the source of rights, remedies and obligations, there is emerging a renewed emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration. Sometimes this expands the range of what is available, sometimes it may constrict it.”
It was for others to decide if this was “a response to the rising tide of anti-European sentiment… whether it is putting down a marker for what might happen if the 1998 act were repealed, whether it is a reflection of distinctive judicial philosophies… or whether it is simple irritation that our proud traditions of UK constitutionalism seemed to have been forgotten.”
Roger Smith in ‘The Law Gazette’ called this “barely ciphered code” for “growing Little Englandism”.
Gearty says, “This revival of fantasy is now reacting with the current political atmosphere in a way that threatens to produce a poisonous cocktail that could destroy modern England. I do not believe I exaggerate.”
I’m inclined to agree this is arguable. It explains the cavalier judicial approach in Maistry v BBC. And accounts for the shameless celebration of the rule of law in a democracy on its deathbed with fascism in waiting