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Judges and civil liberties - the Clapham Common case

Mike McCartney

24th March 2021

The decision by a High Court Judge not to intervene in the dispute between protestors and the Met

The fact that a high court judge withdrew from making a decision over the right of protestors to gather in South London recently raised questions about the role of the judiciary and civil liberties.

As a reminder of the role of the courts, here is a refresher...

How effective are judges in protecting civil liberties?

The following evidence suggests the judiciary is effective in protecting civil liberties

· Through the power of judicial review judges can declare actions by public officials/bodies ‘ultra vires’ and have been unafraid to use these powers: during Major’s government the courts found against Howard as Home Secretary ten times on a range of issues, with the most high profile case involving overturning his decision to impose a minimum sentence on the killers of James Bulger.

· Since the introduction of the Human Rights Act (1998) judges have had the power to review cases in light of the European Convention on Human Rights. Judges have used the new powers to provide citizens extra protection against civil rights abuses, in 2004, in what is probably the most high-profile rights case ever the Law Lords ruled 8-1 against the government’s indefinite detention of terrorist suspects in Belmarsh and Broadmoor prisons.

· Judges are sufficiently independent from the executive to make decisions via judicial review even when the government may not like the outcome. In the summer of 2006, Tony Blair was sufficiently outraged by a High Court decision which allowed Afghan hijackers temporary leave to remain in Britain as ‘barmy’, David Cameron raised serious concerns about the right of Abu Qatada to avoid deportation.

· The kind of bias identified by Griffith over 30 years ago may be slowly unravelling. The fact that judges are almost a homogenous bloc of white, middle class males may not in fact affect their neutrality as shown recently by a couple of landmark divorce rulings in the early 00s.

· The appeals procedure has ensured that the right to a fair trial is upheld: in 2002 Stephen Downing was released after his conviction was declared unsafe – 27 years after his original conviction (thought to be the longest miscarriage of justice in British history).

· Judges can also act as a pressure group via their comments (sometimes off the record) to the media, in the House of Lords, or when summing up cases, e.g. in 2004 Lord Hoffman declared during the Belmarsh trial that the Labour government’s anti-terrorism laws were a greater threat to liberty than terrorism itself.

· The impact of the new Supreme Court, whilst still very much in its infancy, can be addressed here. A number cases have received a lot of media coverage since judges crossed Parliament Square to their new home at Middlesex Guildhall, including:

The following evidence suggests the judiciary is not effective in protecting civil liberties

· A.V. Dicey argued that alongside the sovereignty of Parliament one of the twin pillars of liberty was an independent judiciary. Whether the latter exists has been called into question. The judiciary is much more likely to rule in favour of the government as against.

· Griffith suggested that ‘These judges have by their education and training…acquired a strikingly homogeneous collection of attitudes, beliefs and principles.’

· High-profile cases of miscarriage of justice, as well as numerous other lower profile cases, have led many to lose faith in the courts.

· The impact of the Human Rights Act has not been as great as expected – the HRA has been used sparingly and in only around 1% of cases since the act came into force have the courts declared British law incompatible with the ECHR.

· Keith Ewing, writing in The Guardian, lists a number of failings of our judiciary when it comes to rights protection, arguing that “the erosion of liberty has increased, not diminished under the ‘culture of liberty’ created by the HRA; and reliance on the courts has generally not been an effective way to protect civil liberties from the power of the state.”

· We have to question whose civil liberties it is that judges are protecting by overturning large chunks of the government’s anti-terrorist legislation (via judicial review often with reference to the Human Rights Act).

· It was reported some years ago over 200 of Britain’s top judges had given ‘unduly lenient’ sentences to criminals guilty of serious offences, according to a list drawn up by the Attorney General.

· outbursts by senior judges indicate that the convention that sitting judges should keep quiet outside the courtroom has broken down.

· Continued pressure by the government and the media is putting excessive pressure on judges and jeopardising the right to a fair trial.

So going back to the Sarah Everard protest, according to the Standard who reported on the judgment by Mr Justice Holgate:

"High Court judge rules it is ‘inappropriate’ for him to intervene in police ban of Reclaim These Streets event."

This raises questions about the right to freedom of assembly and also makes us consider whose place it is to consider what the answer is when there is a clash between individual rights and collective security.

The fact the courts withdrew from making a judgment heaps confusion on this.

Commenting further, the paper says:

"He said the vigil organisers and their solicitors may have further talks with the police about the legality of the vigil, but added: “That’s not a matter on which the court should comment”.

The judge was also at pains to point out he had only been asked to consider a declaration on the law, rather than grant an injunction against the police or rule on the legality of the vigil."

This was the reaction from the Met:

"Commander Catherine Roper, the Met’s lead for community engagement, said: “Today’s ruling in the High Court has confirmed that the Metropolitan Police may conclude that attendance at a large gathering could be unlawful. In light of this ruling, our message to those who were looking to attend vigils in London this weekend, including at Clapham Common, is stay at home or find a lawful and safer way to express your views.”"

And with what is euphemistically called the Crime and Police Bill making its way through Parliament, one wonders if the judiciary will provide further clarification on the future.

Mike McCartney

Mike is an experienced A-Level Politics teacher, author and examiner.

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