The Slow Death Of The Rule Of Law – Blog By Tim Compton

Published on 22/04/2021

“Now, I would know by what authority – I mean lawful – there are many unlawful authorities in the world – thieves and robbers by the highways – but I would know by what authority I was brought from thence and carried from place to place, and I know not what. And when I know what lawful authority, I shall answer. Remember, I am your King – your lawful King – and what sins you bring upon your heads and the judgment of God upon this land, think well upon it – I say think well upon it – before you go further from one sin to a greater. Therefore let me know by what lawful authority I am seated here and I shall not be unwilling to answer. In the meantime, I shall not betray my trust. I have a trust committed to me by God, by old and lawful descent. I will not betray it to answer to a new unlawful authority. Therefore, resolve me that, and you shall hear more of me.”

Charles 1st at his Trial before the [Parliamentarian] High Court of Justice

Of course, to Charles’ reasonable question, John Bradshaw, the Court’s President, had no answer: the High Court of Justice was established by a purged House of Commons (even the Parliamentarian House of Lords rejected the suggestion of establishment of a Court to try the King, and the revolutionary act of the English Civil War was in purporting, in the light of day, to place a divine right king as subject to law and answerable to it to the extent of his life – historically, deposed kings & awkward royal relations were disposed of normally “off stage” – King John’s nephew, Arthur, Edward II, Richard II, Henry VI, Edward IV’s brother, “false fleeting perjur’d Clarence”, Lady Jane Gray – only the last was publicly disposed of).

I have previously written about what seems to me an unacknowledged drift towards an inquisitorial system from an adversarial system in the jurisdiction of England and Wales. As I said there, I hope I am wrong and, what I perceive as sometimes, but not always, accidental attacks on the legal system in this legal jurisdiction are mere fanciful worries on my part. On this occasion, rarely for me, I would be happy to be wrong …

One can draw comfort when one sees around the world dictatorial behaviour where the rule of law is largely disregarded. We are not like that, it could not happen here, we tell ourselves.

The rule of law, I suggest, is more than merely having laws written down, as the example of Communist China shows (& closer to home, arguably the ECHR with the amazing elasticity of interpretation over a relatively short period of time also suggests). The rule of law may be rather like an elephant – to borrow and adapt (or rather plagiarize) from the speech of Lord Hughes in Ivey (Appellant) v. Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67, para. 48,

“Where it applies as an element of a state, the rule of law is by no means a defined concept. On the contrary, like the elephant, it is characterised more by recognition when encountered than by definition. The rule of law is not a matter of law, but a … question of fact and standards.”

It is no great surprise in a small “l,”, liberal, western democracy that, in the People’s Republic of China, the law is subordinate to the perceived needs of the Communist Party. That the Chinese government has little, if any, regard for the rule of law has been horribly demonstrated in the (effectively) tearing up of the 1994 Sino-British Joint Declaration on Hong Kong (legally, an international treaty), the new security law imposed on Hong Kong by Beijing and the arrests of anyone who is foolish enough to voice a wish for democracy along with the purging of the Hong Kong Legislative Assembly of, what are no doubt regarded in Beijing, as suspect elements (indeed I believe changes have been “discussed” at the People’s Congress as to how rule in Hong Kong should be changed). Pride’s Purge in 1648 of the House of Commons in order to put Charles 1st on trial was a rather feeble effort by comparison.

That laws are written down is no guarantee of freedom: Chinese officials swear to “pledge to be loyal to the Constitution of the People’s Republic of China, safeguard the authority of the Constitution, fulfil the legal responsibilities of my position, be loyal to the Motherland, be loyal to the people, show the utmost respect for my duty, pursue public affairs with integrity, accept the supervision of the people, and to work for a great modern socialist country that is prosperous, strong, democratic, culturally advanced, harmonious, and beautiful”.

So that’s all right then. The Chinese (written) Constitution is a substantial document, running to many thousands of words (in contrast to the US Constitution – significantly fewer). All ethnic groups are equal (Article 4) and are expected to “exercise the power to self-govern” – there’s comfort for the Uyghurs in their internment camps [1], the right to vote is guaranteed (Article 35) with any “persons [being] deprived of political rights in accordance with law shall be an exception.” “Citizens … shall enjoy freedom of speech, the press, assembly, association, procession and demonstration (Article 35) and “shall enjoy freedom of religious belief … without discrimination” (Article 36).

Moving westwards in Myanmar, on the news as recently as 3rd March there was footage shown of protesters being deliberately shot at with live ammunition, journalists being struck with rifle butts in the street, all because it would appear that the military in Myanmar dislike the result of the last election? It was reported that around 100 protesters were shot by the authorities whilst protesting on 27th March last.

Carrying on further westwards, one might question how many genuine democracies with the rule of law there are in the Middle East – one, however imperfect? – as against (mostly absolute) monarchies where the monarch rules as well as reigns, and it appears in the case of one country, has awkward individuals lured to that country’s embassy overseas to be murdered and dismembered: at least Putin to the north has the decency to have the state security organization simply murder by poison those he dislikes, at home or abroad “pour encourager les autres”, and is quite open in condemnation of perceived traitors?

Then on the other side of the Atlantic from the UK there was the spectacle on the 6th January 2021 of a violent mob (in what I think most would accept is a genuine democracy which does follow the rule of law), some armed, storming the US Capitol, smashing their way into the Capitol, rampaging through the building, some calling for the Vice President the USA to be hanged (for treason it seems), pipe bombs being found, & the violence of that mob resulting in a number of deaths, including an unfortunate policeman who is appears was murdered by being beaten to death with a pole to which the American flag was attached. If, that were not in itself bad enough, one might think, on the evidence that the mob was being actively encouraged by the chief executive of the American government – who in the months prior to an election, had been routinely describing any future result (before a single vote had been cast), that did not result in his winning as fraudulent, somewhat alarming?

In Trump’s America, 2016 – 2020, Donald Trump routinely positively lied or made misleading claims (at a rate of 14.8 per day the Washington Post has calculated) and continues to do so. He lost the popular vote in 2016, and 2020. Obama’s inaugural crowd was bigger than his. The last election was not rigged in the USA; there is no evidence of the extensive fraud he has claimed generally & in particular in over, I believe, 50 plus court cases (at least the claims were repeatedly made outside Court) all of which, save 1, were dismissed, or even some were withdrawn. It is worth noting though that what his lawyers would say outside court was quite different from inside court where they didn’t repeat the claims of fraud (& on at least one occasion, expressly state it was not alleged) as, I assume, an advocate of the American Bar like at English Bar, has to be extremely cautious about alleging fraud, only on very clear instructions & credible evidence (see BSB Rule C9.2.b for over here). So successful are Trump’s lies (his approach, historically, is straight out of a fascist playbook) that it is credibly reported that an alarmingly large number of US citizens believe that Donald Trump actually won the 2020 election and that there was significant fraud. Historically, he increasingly appears to be like Juan Peron of Argentina – no real ideas or real programme other than gaining power for himself, but in the long term, essentially a malignant influence on his country that renders the country unstable, if not ungovernable for years after his departure (or in Peron’s case, even his death).

Yet that paragon of American lawyers, Rudy Guiliani, says, without any apparent sense of irony whatsoever that:-

“Misinformation has become a daily occurrence on social media platforms. If continued unaddressed, it will eventually lead to Jefferson’s worst nightmare of a poorly informed citizenry, which he saw as the greatest danger to democracy.”

Of course, I say to myself, “It could not happen here, Dear God, we are all British, we don’t behave like that”. Indeed, looking this year’s Archbold we have so much law about sentencing the criminal classes, it requires its own volume and a Sentencing Code, all nicely written down.

However, then one has in the UK the Police, Crime, Sentencing and Courts Bill 2021. The overarching factsheet states that it includes provisions to “Strengthen police powers to tackle non-violent protests that have a significant disruptive effect on the public or on access to Parliament: see https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-overarching-factsheet”. Silly me, I thought the whole purpose of a protest, to be effective, had to at least cause some disruption, if only by people marching and shouting?

The Economist (accurately having read the provisions) summarizes & comments on it thus (20th March 2021, p. 19): –

‘a rag-bag of measures that includes a clampdown on the right to protest. The Government had hoped the bill would slide through Parliament unobserved, but the timing [of the vigil for Sarah Everard on Clapham Common on 13th March] turned it into the centre of controversy … the curbs on protests are aimed at movements which the government, dominated by social conservatives, abhors. Priti Patel … has described Extinction Rebellion (XR) as “eco-crusaders turned criminals”.’

The Bill has been subject to a number of recent protests widely reported in the media. The violence that has accompanied some protests is criminal and counter-productive, but, I suggest unfortunately, in some respects understandable? Parliament is not to suffer any more the great unwashed protesting anywhere near it (a modern day version of Louis XIV’s withdrawal of the French Government and aristocracy to Versailles – and that ended well, didn’t it, for royals and aristocracy?). The Police are given increased powers to permit, ban or regulate public protests. Section 56 creates now strict liability offences by amendments of the Public Order Act 1986, triable summarily only in the Police – oops, sorry – Magistrates’ Courts; the creation of an offence of “intentionally or recklessly causing a public nuisance” carries one of those delightful reverse burdens of proof (section 59(3)). It also looks to set up controls on individual protests by just one person on his / her own.

Incidentally, the habit of drafting legislation by the addition or removal of words from earlier sections of acts (like “knowingly”), is a long established drafting / government “trick” to ensure that MPs will have great difficulty in effectively scrutinizing legislation before them for consideration.

In April 2020 “The Guardian” – not, I confess, my normal (or favourite) reading – reported of the Government’s amendments to the Investigatory Powers Act 2016 – proposing an increase in the number of public bodies entitled to have access to phone & computer data, including key organizations involved in national safety and security, such as the Insolvency Agency and the Pensions Regulator. It was reported that: –

‘A Home Office spokesperson said: “To protect national security and investigate serious crimes, law enforcement and relevant public authorities need the ability to acquire communications data.

These powers are only used where it is absolutely necessary and proportionate and are independently authorised by the Office for Communications Data Authorisations, except in urgent or national security cases.” ’

So that’s all right, as Priti Patel, a notorious lefty lawyer is in charge at the Home Office, I am relaxed about my ECHR Article 8 & 9 Rights being robustly protected at the highest levels.

Of course, there is also the Covert Human Intelligence Sources (Criminal Conduct) Bill 2021, presently, I think, before the Lords: according to the Home Office on GOV.UK, this Bill will provide for:

“creating a ‘Criminal Conduct Authorisation’ (CCA).

CCAs may be granted where necessary for a specified purpose:

in the interests of national security

for the purposes of preventing or detecting crime or of preventing disorder

in the interests of the economic well-being of the UK”,

nice, tightly defined categories. I feel safe knowing the Home Secretary had ownership of the Bill. The organs of the state being authorized to commit criminal offences seems to me an utterly laudable aim when in pursuit of upholding the rule of law – who could reasonably disagree? The end, surely, justifies the means? Or is it wildly exaggerating & scaremongering to suggest that the legislative creep (trending towards a gallop) is to ensure that the ECHR written down (qualified) “Human Rights” to conscience, assembly, protest, and say what one thinks, whilst guaranteed under Articles 9, 10 & 11, are being increasingly further hollowed out?

Years ago when the House of Lords membership mainly consisted of the hereditary peerage I remember discussing with a friend, whom I would trust to protect my personal liberties the better – the unelected House of Lords or the democratically elected House of Commons? We were both of the view that we would feel safer with the House of Lords having the final say on our behalf, not least because the hereditary peers in the House of Lords knew they were there on sufferance, and they answered in practical terms to no one, save their own conscience, and thus tended to think for themselves – lobby fodder they were not.

Likewise, I remember many moons ago causing a Chairman of a Lay Bench to be decidedly disgruntled with me, when a school group was shown into court to see what it looked like: I, prosecuting the CPS list, was asked where I’d rather be tried, Crown Court or Magistrates Court? Answering unhesitatingly, “the Crown Court, without a doubt”, was not it seems the appropriate answer. I was at least tactful enough not to mention that the Magistrates’ Courts used to be called the “Police Courts” in everyday parlance (for good reason).

Towards the end of 2020 in the Old Bailey trial, before Sweeney J and a jury, of some of those said to be responsible for the death of those 39 unfortunate Vietnamese immigrants, who suffocated to death whilst being smuggled into this country in a shipping container, took place. The Home Secretary tweeted, on the first anniversary of the crime coming to light of a container full of dead bodies (which fell during the course of the trial) that:- “One year ago today, 39 people lost their lives in horrific circumstances at the hands of ruthless criminals.” That tweet remained “up” for over an hour until removed due to complaints. The trial had to be halted while the matter was investigated.

“The Home Secretary’s tweet intended to refer to individuals who were involved in the incident and had already entered guilty pleas. The tweet was not intended to reference individuals involved in the ongoing trial. However, as soon as concerns were raised, the tweet was deleted”

said the Home Office; so that’s all right then.

Frankly, and I make it clear this view is wholly personal, any Home Secretary of any party who posts such a comment during a trial might be thought to be too unaware of what is happening, too ignorant or stupid, or have rather too slight a regard for the rule of law to be fit to hold that office; whichever is the explanation, personally, I do not care. Somewhat discouraging … (& the rich irony, clearly lost on Ms. Patel, is that she herself, I believe, is the daughter of Asian parents expelled by Idi Amin (that well known advocate for the rule of law) from Uganda)?

It couldn’t happen here, could it?

Again, millennia ago, when studying to become a barrister, I naively thought that the law was objective – an on-line definition of “objective”, “not influenced by personal feelings or opinions in considering and representing facts. Contrasted with subjective. ‘historians try to be objective and impartial’ ”, with synonyms such as “impartial, unbiased, unprejudiced, nonpartisan, disinterested, even-handed, equitable”. Antonyms would be words such as “biased, partial, prejudiced” – I foolishly did not think it was a good idea for the law to be subjective – again, on-line defined as, “Subjective: based on or influenced by personal feelings, tastes, or opinions. Contrasted with objective”, with synonyms such as “personal, individual, internal, emotional, instinctive, impressionistic, biased, prejudiced, bigoted, idiosyncratic, irrational, gut reaction” and antonyms of “objective, impartial”.

A rule of law which allows that a “Hate crimes are any crimes that are targeted at a person because of hostility or prejudice towards that person’s:

disability

race or ethnicity

religion or belief

sexual orientation

transgender identity

This can be committed against a person or property” [2]

sounds to me thoroughly commendable.

However, I am rather more worried by the link that page takes you to, namely, https://www.report-it.org.uk/files/hate_crime_definitions_-_v3_0.pdf, which has a useful table that tells me that “Hate Motivation” is defined as where “Hate crimes and incidents are taken to mean any crime or incident where the perpetrator’s hostility or prejudice against an identifiable group of people is a factor in determining who is victimised’. So far so good, but the table also tells me that “This is a broad and inclusive definition. A victim does not have to be a member of the group. In fact, anyone could be a victim of a hate crime”.

So if I am rude to Welshman A with reference to sheep, if Welshman A thinks I am being racist, I get prosecuted, but if said Welshman A dismisses me as a rude pratt – it has been known – I have not committed a criminal offence? Does being over ¼ Welsh myself bring anything to the party?

A “Hate Crime” I am told by said page, “is any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s race or perceived race.

A victim does not have to be a member of the group at which the hostility is targeted. In fact, anyone could be a victim of a hate crime.”

So, looked at objectively, the crime is not what I do or say, but how it is perceived: I might be merely rude and ill bred; I could be a serious criminal. It is for the victim’s input to indicate, or, possibly, determine. That’s a comfort. I understand misogyny may be heading down the same path. Quite right too …?

However, all is well as that’s just how the Police see it, and the Crown Prosecution is there to provide a buffer and protection for us Welsh chaps, given CPS Guidance (https://www.cps.gov.uk/legal-guidance/racist-and-religious-hate-crime-prosecution-guidance) which provides that: –

Victims [so no prejudging of the issue] of hate crime are entitled to an enhanced service under the Victims’ Code and in the event of a decision to end the case or to substantially alter charges, the victim must be notified of the reasons within one day. The victim should also be advised how they can access further information from the CPS and seek a review of the decision.”

The rule of law, like the elephant is easier to recognize than define? Returning to Charles 1st’s trial, Bradshaw P. said to Charles 1st,

“Sir, you have heard the pleasure of the Court, and you are (notwithstanding you will not understand it) to find you are before a Court of Justice”,

Which elicited from Charles 1st the dry response,

“I see I am before a power”.

Whilst we clearly have not got to that stage yet in the jurisdiction of England and Wales, I fear the direction of travel. When Parliament is cheerfully seeking to “slide through Parliament unobserved”   laws that, one suspects, the CCCP of the PRC might have little difficulty with (or even applause for), we might have reached a point when it is time to stop and think?

To play with the famous saying of John Dunning, 1st Baron Ashburton, “The influence of the rule of law has diminished, is diminishing, and ought to be increased” …?

Now off to find a tree to hug.

Timothy Compton

12CP Barristers

[1] Article 4 of the Constitution: “All ethnic groups of the People’s Republic of China are equal. The state shall protect the lawful rights and interests of all ethnic minorities and uphold and promote relations of equality, unity, mutual assistance and harmony among all ethnic groups. Discrimination against and oppression of any ethnic group are prohibited; any act that undermines the unity of ethnic groups or creates divisions among them is prohibited.” Should one laugh or weep?

[2] https://www.report-it.org.uk/what_is_hate_crime produced by “2021 True Vision. Owned by The National Police Chiefs’ Council”.