Francis FitzGibbon

When Tony Blair announced radical changes to his mentor Lord Irvine’s job as Lord High Chancellor without warning in 2003, he provoked the wall-paper connoisseur and would-be Cardinal Wolsey into resigning. The horse-trading that followed gave us the Constitutional Reform Act 2005, which stripped the Lord Chancellor of his judicial role, set up the Supreme Court as the final Court of Appeal for the UK, and a new Department of Constitutional Affairs, with an elected MP to be secretary of state instead of a peer. It changed its name to the Ministry of Justice in 2007, and has mushroomed.

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.

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.

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.

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.