Chapter 2

The Myth Of The Marvellous Past

How true is the glorious version of the common law that we see being increasingly celebrated today?  Not at all I would say.  Through the twentieth century the courts were creative, energetic, and determined—not to protect freedom but in their efforts to support authority against all those who would challenge it from the Left.

In the 1920s, the Communist Party leadership was dispatched to prison on charges of conspiracy to publish seditious libels so lavishly supported by the trial judge that the jury took no more than ten minutes to convict. In later years, the police were retrospectively vindicated in law for incursions into meetings of which they disapproved and for the seizure of materials from radicals whom they regarded as unacceptably subversive. Looking both further back and forward, to the extent that the common law embraced within its remit principles of statutory interpretation then these were deployed during both world wars to empower the executive branch even more than the parliaments of the day had intended. Salus populi suprema lex (‘the safety of the state being the highest law’) was how one First World War judge put it.

During the Second War the words ‘reasonable cause to believe’ (required by the relevant piece of delegated legislation) of a Home Secretary before detaining someone without trial was construed to mean in fact merely thinking he had such a reasonable belief, in the majority decision of a (particularly abject) House of Lords bench. Mr Justice McCowan’s puzzlement that he could not instruct a jury to equate the interests of the state with the interests of the government of the day (in a well-known official secrets prosecution in the mid-1980s) was not some maverick intervention by a judge out of kilter with his rights-conscious colleagues but rather a man doing exactly what the common law culture to which he belonged had long demanded: hammer dissidents in court while celebrating the ancient constitution’s commitment to rights when at dinner in the Temple or in the Oxbridge common room afterwards.

Going much further back were things different?  We have a persistently remembered 18th century ruling by Lord Mansfield on slavery, and also a renowned decision on state power by Lord Camden and his colleagues on the Court of Common Pleas around the middle of that century.  But ‘one swallow does not a Summer make’—the most dependable guarantors of liberty during the heady days of late eighteenth-century revolt were politicians like John Wilkes and the brave jury members that defied judicial instructions to acquit him and men like him time and time again.

The great repression that followed the French Revolution and survived through the long and drearily authoritarian prime ministership of Lord Liverpool was rarely troubled by any kind of libertarian reaction from the courts. Even after male suffrage was achieved, the courts continued in their most reactionary mode through the hundred years that followed, denying women any opportunity to secure participation in the political process and even trying to strangle the Labour Party at birth through denying it the right to have its members of Parliament paid out of union funds.  The twentieth century did not come out of nowhere.

There is a final point to cover, a myth within a myth that needs now to be nailed. The argument runs something like this: it concedes that all that I have said here is true but goes on to claim that the judges have in recent times changed, that the common law had reshaped itself well in advance of the arrival of all this human rights talk, and as a result it can now to be trusted to approach liberty with a new perspective, one rooted in a different set of values than might have governed in the past. We don’t need human rights because we have this new vibrant, decent, reformed common law, one that disowns its own murky past while being (in some complicated way) rooted in it. But if this is true today, then it is only because of the Human Rights Act, not despite it.

The last full decade before enactment of the Human Rights Act was the 1980s, a time that was (as many will recall) notorious for the extension of authoritarian state power at the expense of workers, demonstrators, Irish political activists, nuclear disarmament campaigners, and many others besides. The late Margaret Thatcher strode the stage as Prime Minister imposing her will via strong police and secret service interventions which had a series of negative impacts on freedom. Where was the glorious modern reformed common law when all this was happening?  That is the next chapter, next week.

Britain, Europe and Human Rights