Common Sense: Conservative Thinking for a Post-Liberal Age was published in May by the self-styled Common Sense Group of around fifty Conservative MPs. Along with chapters on such themes as ‘What is Wokeism and How Can it be Defeated’, ‘The conservative case for Media Reform’ and ‘A Common Sense Model for Poverty’, are the reflections of two MPs on ‘The Judicial Activists Threatening Our Democracy’. The group has received favourable coverage from the Telegraph and the Express. Anyone who thinks that British courts have become a hotbed of anti-government ‘judicial activism’ should ponder two judgments given by the UK Supreme Court on 30 July.
The 1819 Seditious Meetings Act fell into disuse but remained on the statute book until its repeal by the Public Order Act of 1986. Now it is being revived in the Police, Crime, Sentencing and Courts Bill. This monstrous piece of legislation is intended to make it a crime to do something in public that causes, or risks causing, ‘serious annoyance’ or ‘serious inconvenience’.
The Covid-19 regulations are draconian, inconsistent, obscure and inconvenient, but they are not unconscionable. They do not require me to do things that the state should never make its citizens do. They are proportionate to the threat that the virus poses to health services, and necessary to slow the spread of the disease and protect those services: or at least, they are arguably so. The law and the reasons for it make sense. The regulations are contained within statutory instruments. They alone are the law. They are the ‘rules’. They can be enforced with criminal sanctions. Guidance and advice are not rules and cannot be legally enforced.
‘A good jury turns into a little community,’ Baroness Hale has said, ‘working together in the interests of justice.’ As a jury advocate for over thirty years, I have always been impressed, and often humbled, by the care and dedication they give to their work. Academic research supports the experience of criminal lawyers that juries are fair, and do their utmost to bring in the right result. In every case, it isn’t just the defendant on trial: the state itself is on trial, too, in public, before its citizens. Can it prove its case to the high standard the law requires? Has it used its coercive powers wisely and lawfully? Have its operatives in the courtroom – the judge and the lawyers – conducted themselves properly?
The criminal courts and the jails that feed and are fed by them are ideal incubators of Covid-19. It comes as no surprise that an elderly prisoner has died today, either from or with the virus, and he won’t be the last. Courts bring people together in small spaces for hours or days at a time, in the courtrooms, the cells, and the jury rooms, not to mention the offices where the staff work. In the basement cell area of a court I attended recently, a single air-conditioning unit blew the same air through all the cells and into the interview and staff rooms. My colleagues have been complaining for years about broken plumbing, absence of soap and towels, and frequently filthy conditions.
Brenda Hale, the president of the United Kingdom Supreme Court, will retire in January 2020. She took an atypical route to the summit of the judiciary, having been appointed to the High Court from an academic career (she was a professor of law at Manchester University) rather than practice at the Bar. Her speciality was family law, considered by some in the profession as a poor relation, which it may be in terms of earnings, and intellectually soft, which it isn’t. Family cases throw up enormously complex and important legal issues, such as the rights of parents and children as against local authorities, cross-border disputes over children and property, and the ethics of medical treatment against parental wishes. Hale’s academic and judicial work has also focused on social welfare and mental health law, subjects far removed from the bloodless commercial work that fills the CVs of most senior judges.
The Stansted 15 – non-violent protesters who stopped an aircraft taking off with deportees to Ghana, Nigeria and Sierra Leone in March 2017 – have joined the ranks of highly motivated people willing to risk jail to stop a perceived injustice. The passengers on the flight included deportees who were subject to the Home Office’s then policy of ‘deport first, appeal later’, which the Supreme Court later ruled to be unlawful. The 15 got through the airport fence and blocked the path of the plane, causing the flight to be cancelled. Some of the deportees subsequently won the right to remain the UK. The 15 were found guilty under the Aviation and Maritime Security Act 1990 of ‘disrup[ting] the services of … an aerodrome, in such a way as to endanger or be likely to endanger the safe operation of the aerodrome or the safety of persons at the aerodrome’. They are awaiting sentence. The maximum is life imprisonment, but the question for the court is likely to be whether to give them a prison sentence at all.
In a death row appeal soon to come before the US Supreme Court, Robert McCoy will ask whether it is unconstitutional for defence counsel to tell a jury that his client is guilty, in defiance of the accused’s express instructions that he is innocent. McCoy’s lawyer did this in his 2011 murder trial in Louisiana, in a misguided attempt to get his client life imprisonment instead of the death penalty. The lawyer had rejected the opinions of psychiatrists who had found McCoy fit for trial, believing that he was insane and delusional, and that the only way to save his life was to tell the jury he had committed the three murders with which he was charged, in the hope of leniency. The jury promptly convicted McCoy of first-degree murder, and he was sentenced to death.
In 1765 Lord Camden, the chief justice of England, held that the King’s Messengers – the Special Branch of the day – had to pay damages for trespassing on the premises of a newspaper publisher. They were looking for copies of his newspaper, which the government regarded as seditious – or as we might say now, a threat to national security. They were acting on the orders of a government minister, but his orders didn't have the force of law and couldn't trump the publisher’s property rights – in effect, his right to privacy. ‘By the laws of England,' Lord Camden said, ‘every invasion of private property, be it ever so minute, is a trespass.’ The case, Entick v. Carrington, established that ministers must not issue general warrants and their agents must not enter private property without a lawful warrant. The Data Retention and Investigatory Powers Act (DRIP) became law last week after just three days of parliamentary debate. When David Cameron said of the bill, ‘I want to be very clear: we are not introducing new powers or capabilities,’ he was clear, but he wasn’t accurate.
The ‘bedroom tax’ is a policy about the allocation of two kinds of limited public resources: council accommodation and housing benefits. Council tenants no longer receive full housing benefit if they occupy rooms that the regulations say they do not need. They must make up the rent shortfall if they can, or move out so their homes become available to larger families who need the space. Policies that shift the allocation of such resources are political, if not the very essence of politics in a modern democratic state. But so are the legal cases that they generate. The claimants in the recent judicial review of the tax were disabled and vulnerable children. They challenged the policy on the basis that it discriminated unlawfully against them by failing to recognise their special need for space that the regulations held to be surplus to their requirements.