The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.

The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.
Dwight D Eisenhower

The Bloody Assizes were a series of trials started at Winchester on 25 August 1685 in the aftermath of the Battle of Sedgemoor, which ended the Monmouth Rebellion in England.  At the risk of understatement – not a particularly creditable part of our long and rich legal history.

Henry Porter, writing in The Guardian, notes:  “Kenneth Clarke, the secretary of state for justice, the man who set up the commission last spring to investigate a new bill of rights – no doubt with half an eye on the 800th anniversary of Magna Carta in 2015 – is also responsible for the justice and security green paper, which threatens to deprive us of one of the vital traditions of common law, guaranteed by Magna Carta.”

Porter notes that the key proposal will  “provide a magic cloak of protection for any minister or government agency that wishes to cover up a wrong, most significantly for members of the intelligence services.”

Justice isn’t blind.  Justice isn’t the tool of the State.  Justice is a concept of laws to underpin a fair and democratic society; prosecuted, in the case of criminal trials, by lawyers with no interest in the outcome and administered by judges who are independent of the executive, according to the laws made  by our elected representatives. And therein lies the rub – for it is within the power of government to bring in laws which then have to be applied by the judges, subject, thankfully, to the dictates of The European Convention – in particular, the right to a fair trial set out in Article 6:

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).

The proposal being put forward by The Secretary of State for Justice strikes at the very heart of our rule of law – a rule of law based on open trials, where guilt or innocence is determined by a jury.

Porter notes: “Dinah Rose QC summarised the obvious advantage to ministers in her Atkin Memorial lecture last year. The legislation would, she said, “permit courts to try common law claims for damages using a closed material procedure, whenever a government minister, who is, of course, likely to be party to the action, decides that disclosure of particular material would be damaging to national security”.

… We are following America, where the state secrets privilege results in the exclusion of evidence from the proceedings simply on the basis of affidavits delivered to a court by the government, and this is going to make life very difficult for serious journalism in Britain.”

So much for the much vaunted Bill of Rights…talked of by Nick Clegg and others which, as far as I can see, has not appeared as yet in any meaningful form.

On the theme of The Rule of Law – Rosalind English provides an excellent note in the UK Human Rights blog on a decision which will, no doubt, be an irritant for the present government: Suspected terrorist may not be deported to Jordan – Strasbourg rules

And.. if you need further evidence of the slow erosion of our rights..under Magna Carta.. or otherwise.. this from Michael Mansfield QC is worth reading:

Bashing trial by jury is pathetically predictable

The Guardian: Governments needing a facelift often attempt to curtail jury trial. Quick-fix supermarket justice must be resisted

And… a bit more?  Obiter J notes: “Extradition is in the news again.  The USA is seeking the extradition of Sheffield student Richard O’Dwyer and a judge, sitting at Westminster Magistrates’ Court, has ruled that there is no bar to his extradition – see Daily Mail 14th January.  The US authorities allege that Mr O’Dwyer listed on a website places from where pirated films and TV programmes could be downloaded.  This case – like that of Gary McKinnon – brings into focus the Extradition Act 2003…”

[ PS... Happy Second Birthday to Obiter J and his excellent blog - many happy returns to come! ]

While the McKinnon case and the O’Dwyer case may be distinguished – McKinnon is alleged to have hacked into Pentagon computers.  O’Dwyer set up a website linking to copyrighted material – in a manner not dissimilar to a search engine… Google, for example – it is clear to many that our extradition arrangements with the USA, designed to combat terrorism, are both one sided and are, arguably, being misused in the O’Dwyer case for purely commercial ends.  For my part, at first blush – without a deep understanding of the background to the O’Dwyer case as yet, perhaps our government should be more protective of the rights of citizens when it comes to handing them over to the Americans?

Without Prejudice podcasts resume this Thursday!

Well… there we are.  British justice.. being created by a democratically elected government – with a weak opposition which seems more concerned with party leadership issues and train fare prices than issues of civil liberties.

Mind you… Ken Clarke, apparently, thinks that bloggers are just a load of nutters and extremists.  I don’t think we are.  I wonder if Ken has actually read some of the leading Human Rights and Civil Liberties blogs… has he read Carl Gardner’s Head of Legal?  Has he read Jack of Kent?  Has he read the  UK Human Rights Blog ? Has he read Obiter J?

More to come as the week progresses.

5 thoughts on “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.

  1. Thank you for the kind wishes.

    Kenneth Clarke appears to like soundbites. He had one about the distance between Magistrates Courts not having to relate to how far it was reasonable to ride a horse !! Can’t remember it exactly !

    I find it somewhat sad that a man with so much talent (both legal and political) will go down in legal history as one of the most illiberal of politicians. I admired him once – some time ago when he was Chancellor of the Exchequer and also as Home Secretary. His views on the EU also tied in with mine – though I suspect mine are changing.

    Thinking of his comment about bloggers made me think of the great Robert Burns who we have mentioned on your blog before:

    http://www.robertburns.org/works/97.shtml

    O wad some Power the giftie gie us
    To see oursels as ithers see us!
    It wad frae mony a blunder free us,
    An’ foolish notion: ….

    It seems topical at this time of locked horns between the head-bangers at Westminster and Edinburgh.

    All the best – keep taking the “medication” …

  2. I think all our contemporary politicians are a shower of S**t. It is hard to avoid the feeling that the end of Animal Farm by Orwell sums up the situation. They seem to be totally vile and self serving not to mention craven and servile to the USA and lobbyists at home. Labour and Tory and Liberal, except they stand for nothing but sound bite claptrap and reactionary economic and social policies.

  3. It seems that the government is trying to make itself as unaccountable as possible, without causing a massive outcry.

    Trial by jury is under-threat as the linked article points out. And yet Magistrates feel they will benefit, and so they support the changes. I think it’s time to consider that Magistrates may no longer have the judicial independence they once used to. The Courts Act 2003 centralised Magistrates courts and increased the risk of Executive interference. In the boom years this may not have seemed to matter much, but now that uneconomic austerity is being rammed through, the threat is much clearer. Hundreds of courts are closing. And we see a “directive” coming from Whitehall to make sure that rioters were punished in the way the Executive saw fit:

    http://surelysomemistake.blogspot.com/2011/10/spuriouser-and-spuriouser.html

    Meanwhile, secret courts will be expanded, and although the government is taking many controversial decisions, it will become harder to challenge them once legal aid is cut.

    And yet what are Her Maj’s Opposition and our supposedly adversarial media doing? Nothing. They are supine at best, and cheering it all on at worst.

    I think to get into the mindset of the current government, and to see how it views us, the people, you need look no further than its NHS reforms. Opposed by huge number of people, including all the major health groups, the government has carried on regardless. It announced a pause, but then Lansley said “The pause is over. It’s now time to act”. Meanwhile, even by July last year, 97% of England was covered by the new GP commission groups. The Bill hasn’t even been passed, but already many reforms have taken place behind the scenes.The sheer arrogance of this is breathtaking. The government hold us in contempt:

    http://www.guardian.co.uk/healthcare-network/2011/jul/08/time-for-nhs-to-act-after-pause-andrew-lansley

    It’s quite clear that there’s a managerialist overclass in this country. The policy direction does not change whoever you vote for. You can have the biggest financial crisis in history but the dogmas of privatization, deregulation, high inequality and outsourcing will continue. You can launch two disastrous illegal wars in the Middle East killing hundreds of thousands of people, but a new set of faces will fail to learn the lessons in Libya and perhaps going forward Syria or Iran. And you can spend a decade or more tearing up the civil liberties hand book, and yet still watch as a new government (elected partly to restore lost freedom) grabs a blowtorch and goes on as before.

  4. alex – i agree with you by and large (and obiter and keith for that matter) but it is worth noting that the riot cases were furiously shoved up to the crown court and indeed whether by accident or design were dealt with in the mags largely by djs not lay benches (in some cases surely because they couldn’t ask lay mags to sit all night – though most benches i have, seem to be able to grab a nap by day). the feeling, true or false, was that mags might not toe the government line and the paid djs would. certainly a number of judges seemed to have unilaterally suspended the bail act after the riots. i have been able to confirm that some cps prosecutors and legal advisers shared my disquiet about all this.

    i consider magistrates to be honest decent people doing their best for their society motivated far more often by the right reasons than the wrong ones. but i keep coming up with the nagging question ‘where would you rather be tried if it was you in there?’ and it’s the crown court. not simply because of the tribunal of fact; for me it’s much more the quality of judging, seniority of counsel/hca’s and the greater time allowed that enables the avoidance of much more prejudice – you have to add in the fact that plenty of the representation in the mags whether junior counsel or solicitors is pretty ropey (and what do they expect when they pay us £50 a hearing and from £75 for a whole day trail?). it is a no-brainer.

    and quite how they expect to keep more cases in the mags while cutting i think about 1/3 of the current courts, is a circle i can’t square.

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