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The Stansted 15 case

Mike McCartney

5th February 2021

An example of the independence of the judiciary

The quashing of the conviction of the Stansted 15 is one of those occasions where there is an overlap between different parts of the A Level course. It can be used as an example of direct action. We’ve had a few of these on the Politics Blog over the last few weeks, so instead I am going to highlight it as an example of the independence of the judiciary.

Judicial independence is a question of whether this branch of government can remain free from the influence of the other two branches. It sometimes gets lumped together with the related, but separate question, of judicial bias. I think the latter is internal and the former is external.

Here is a summary of the arguments on how independent are judges from Parliament and the executive?

The judiciary is free from pressure from Parliament and the executive for the following reasons

· It is argued that pay and conditions of employment keep the judiciary free from corruption and political pressure.

· The sub judice rules in both houses of Parliament keeps the judiciary free from interference by the executive and legislative branches since MPs and Lords are prevented from discussing a current or impending court case.

· The conduct of judges should be free from criticism by Parliament, except on the rare occasion when there is a substantive motion for an address for removal from office.

· Growth in judicial review indicates an increased willingness of the judicial branch to exercise its powers in declaring actions of ministers ultra vires (i.e. beyond their statutory power):

· Since the Human Rights Act (1998) came into force judges have been unafraid to declare government policy incompatible with the European Convention on Human Rights (particularly in relation to terrorism):

· The former Lord Chancellor, Jack Straw, went public in defence of judges who make ‘difficult’ decisions, thereby underlining the government’s attempt to protect the independence of the judiciary.

The judiciary is not free from pressure from Parliament and the executive for the following reasons

· Some of the offices overlap and holders thus perform functions which in some states would be carried out separately by the executive and legislative branches.

· Somewhat less obvious, but not lacking in controversy, is the fusion of roles carried out by other members of the government, such as the Attorney General who serves as legal adviser to the government.

· The appointments procedure has traditionally been characterised by secret soundings by the PM and Lord Chancellor, and the higher judiciary has been drawn exclusively from the Bar (particularly the Inns of Court in London).

· The judiciary have led a series of investigations on controversial political issues, eg Scott Inquiry (Arms to Iraq)

· The judiciary is much more likely to rule in favour of the government than against. create the illusion that the judiciary acts independently from the other branches, thereby suggesting that some political pressure may exist.

· 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.

With regards to the specific case of the Stansted 15, this is what was reported in the Guardian:

‘Fifteen anti-deportation activists who were prosecuted under counter-terror legislation for blocking the takeoff of an immigration removal flight from Stansted airport have had their convictions quashed.

In a judgment handed down by the court of appeal, the lord chief justice, Lord Burnett of Maldon, said: “The appellants should not have been prosecuted for the extremely serious offence under section 1(2)(b) of the 1990 Act because their conduct did not satisfy the various elements of the offence.

“There was, in truth, no case to answer.”

Weighing the argument, Burnett said in his judgment: “The closure of the runway was undoubtedly disruptive and expensive, but there was no evidence that it resulted in likely endangerment to the safety of the aerodrome or of persons there.

Burnett added: “Both the crown’s case and the summing-up collapsed the distinction between risk and likely danger and treated the offence as if it were akin to a health and safety provision.”’

The key point is that first sentence in the last paragraph, where Lord Burnett takes fire at the government.

Read more on the story here:

https://www.theguardian.com/uk-news/2021/jan/29/stansted-deportation-flight-protesters-have-convictions-quashed

There is also a comment piece by one of the activists here:

https://www.theguardian.com/commentisfree/2021/feb/02/stansted-15-quashed-conviction-terrorists-deportation-hostile-environment

Mike McCartney

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

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