The Seductive Power of the Present
The recent triumphalist celebrations over Magna Carta notwithstanding, the grim litany of failure on the part of the courts extended well past what we covered in our last chapter, into the 1980s and beyond.
The following are among the shabby highlights: permitting the banning of nuclear disarmament marches when that movement was at its height (so much for Beatty v Gillbanks!); empowering the police to do whatever it took to defeat the industrial action of the coalminers in a bitter dispute in 1983–4 (including expanding the common law to permit picketers to be turned away from still-working collieries at which they proposed to protest); ordering the Guardian to reveal its sources for stories about the arrival of American nuclear missiles in Britain, and then overseeing the prosecution (and jailing) of the woman employee found to have been responsible; begging a jury to convict in a secrets case on the basis that the interests of the state could not be separated from those of the government of the day; upholding a ban on trade unions at the government’s Communications Headquarters (GCHQ) despite acknowledged procedural flaws on supposed grounds of ‘national security’ of which the government itself—in the shape of the Minister for the Civil Service (no other than Margaret Thatcher)—was permitted to be the sole judge; sanctioning a series of aggressive police raids on the offices and homes of those responsible for reporting the launch of an expensive spy satellite in defiance of parliamentary rules governing when such matters should be made public; and upholding a media ban on a lawful political party Sinn Féin, censorship which also extended to those whose views coincided with the party’s aims. The final straws that lead to a serious crisis of confidence for the judiciary were the Spycatcher affair, involving failed attempts to ban a book by a former insider about the wrongdoings of Britain’s secret services and the exposure of many large terrorist trials as having produced shocking miscarriages of justice (the Birmingham Six, the Guildford Four, the Maguire Seven and others).
Things are different today for sure. A series of key judicial appointments in the immediate post-Spycatcher, post-miscarriages-of-justice era set the tone for the reform agenda that what was about to be taken up. Under the guidance of these new judges that weather was turning sharply towards human rights. So today’s judicial celebrants of Magna Carta have a degree of truth on their side when they point to the current performance of the senior judiciary, a stark contrast with these dark days of old (which they uniformly decline to discuss or acknowledge).
What is rarely appreciated in the midst of all this contemporary and somewhat shrill talk of common law quality (and Strasbourg inadequacy) is just how much the civil libertarian advances of today’s judges are down not to some renaissance of ancient indigenous sensitivity but to the fact of the Human Rights Act itself. It has been the true game-changer, from its conception in the political sphere, its adoption as a sensible reform by the senior judiciary, and (perhaps most of all) its subsequent enactment followed as this was by the long period of training undergone by the whole judiciary before it came into force, on 2 October 2000. This book will be devoting a lot of space to telling this story.
Can the common law in its current more liberal human-rights-influenced shape survive repeal of the Human Rights Act? We must not take today’s judicial perspective on human rights for granted; today is always on its way to becoming tomorrow. Two caveats need to be entered against over-celebration of this improved present, whether or not the Human Rights Act remains in being.
First, given their age when they reach their positions of power judges are often a generation behind society, fighting their war when the war is over, living the openness of the 1960s during the harsher 1990s, and in the first years of the 2000s driving forward with human rights just as their brief ascendancy in the political sphere might well have been coming to an end. It may already be the case that as the leaders of the judiciary predisposed to human rights gradually leave the stage so they will be replaced by a new generation, less excited by the revolutionary potential of human rights, less keen to use the phrase to achieve change, less concerned by inequality and injustice, men from traditional schools and universities (as they still overwhelmingly are in the senior judiciary) who are harder and more contentedly privileged than their immediate predecessors.
Second and linked to this is the concerted strategy by government, in reaction to the perception of increased judicial scrutiny, to deprive litigants of the opportunity of challenging government in court through the destruction of legal aid. A new common law administering a fine British bill of rights for the rich, overseen by judges who no longer have the concern for equality and fairness shown by the judges of the 1990s is as easy as it is disturbing to imagine. Standing in its way is this idea of universal human rights, the great global thought of which our 1998 Act is a part. This more general topic is what I look at in next week’s extract, from chapter four.