In an exclusive serialisation of his new book, broadcaster and journalist STIG ABELL unpicks the ideas and institutions that make the nation tick. This week, he takes a look at law and order
WHERE DO LAWS COME FROM?
There are three places. The first is the ‘common law’, the collected precedents formed by judges’ rulings built up over many centuries.
The second can be summarised in eight words, thanks to the constitutional expert Vernon Bogdanor: ‘What the Queen in parliament enacts is law.’ This is the source of the vast majority of new, modern laws: parliament – via its royal figurehead – is responsible for the creation of laws, which are then applied in the legal system by our judges. This means we trust politicians to understand what areas of our life should be formally regulated, and to conceive of the most efficient means of achieving that. It is a touching act of faith in many respects. To complicate matters further, the third source of laws in this country is the European Union (until Brexit, as we shall see later, changes this further).
Certainly, the charge can be brought that we have too many, too little-understood laws. Recent years have proven to be a golden age of superfluous legislation. In the decade from 1997 under Tony Blair, 2,685 new laws were created every year (a little over one every three hours); there were 382 Acts of Parliament (including 10 Health Acts, 12 Education Acts and 29 Criminal Justice Acts). Laws, of course, do not only denote what is and is not criminal behaviour, but set out responsibilities for public bodies and denote our civil rights too. They can be incredibly dense to the point of nonsense. The late Tom Bingham nominated this sentence (from the Banking Act Appeals Procedure of 1979) as his favourite piece of legal gibberish: ‘Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations.’
You got that? The problem is that so many pieces of legislation, sometimes so poorly drafted, make life difficult for judges. In 2008 one judge complained that ‘the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned.’
LEGAL AID: ACCESS TO JUSTICE
As part of the foundation of the welfare state – that post-war consensus that equality was an achievable aim – attention was turned to access to justice. The system of legal aid was introduced in 1950 to put the law in reach of people with ‘small or moderate means’. In practice, almost all defended criminal cases that go to the Crown Court are covered by legal aid, because their prosecution is so expensive. I know of a multimillionaire accused of insider dealing, whose defence was entirely paid by the state because even he could not afford lawyers for three years of wrangling.
Legal aid also covers these areas: family disputes; housing (including evictions); asylum and immigration claims; education; and others. However, since 2010 it has been a target of budget-slicing within the austerity-inclined government, culminating in the 2013 Legal Aid, Sentencing and Punishing of Offenders Act (LASPO), which intended to cut funding by around £500 million a year. As a result, in 2012 there were 925,000 legal aid cases; in 2014, 497,000.
People are now, without doubt, going unrepresented, having their access to justice denied. For example, legal aid is no longer available in family disputes unless one of the parties is the victim of domestic violence; family law advice on matters like child contact has been curtailed. In magistrates’ courts, more than a quarter of defendants may be unrepresented, with the likelihood of guilty pleas to avoid court costs on the rise.
The reason for restricting legal aid was to prevent ambulance-chasing claims (often against the state) being subsidised by the state.
The risk is that, by restricting unmeritorious chancers, the government has silenced the vulnerable. Objections were also made to lawyers getting rich in the defence of criminals: in 2010 the top ten legal aid earners were paid almost £7 million between them. The argument for the defence: ensuring proper representation, and a fair trial, is the hallmark of civilisation, even if the cost of it can be hard for some to tolerate.
Few things get EU-bashers’ blood boiling more than its infliction of garlic-stinking, unashamedly foreign laws and so-called ”uman rights’ on proud British folk. The picture is, needless to say, a little more nuanced.
Our membership of the EU (now ending) has meant that the European Court of Justice in Luxembourg has been the final arbiter on disputes involving laws affected by that EU membership. There are more than 12,000 EU regulations in force in the UK, touching on things like: the free movement of labour; child benefits to the offspring of migrant workers; the working time directive, limiting the working week to 48 hours; equal access to fishing waters; clean water rules; the requirement for VAT on energy bills.
British national courts can only refer issues of EU law to Luxembourg; the ECJ cannot hear appeals on matters involving national law.
In 2008 (when data was last recorded) the ECJ heard more than 1,300 cases; in 2014 it had a budget of more than 350 million euros.
Brexit will not change the fact that EU laws exist: most are likely to be incorporated into the British system. Furthermore, we cannot avoid the need for a supranational arbiter because – whatever happens – we would like to have a close trading relationship with the EU, which will likely mean a congruence of regulations, and the acceptance of an authority to rule on disputes arising from them. The ECJ will have to remain involved in British justice, or a body very like it to be created.
The ECJ is often confused with the European Court of Human Rights. The latter has no formal connection to the EU, and is part of the Council of Europe of more than 47 countries (from Russia to Iceland). It enforces the European Convention on Human Rights, which was ratified by the UK in 1951 and was incorporated directly into UK law via the Human Rights Act in 1998. Leaving the EU will not alter this.
The root of this human rights legislation is the Universal Declaration of Human Rights, which emerged from the wreck of the Second World War and the creation of the UN. During the war, the Allies had articulated the need to fight for four freedoms: of speech; of religion; from fear; from want.
The UN subsequently empanelled a committee, under Eleanor Roosevelt, to write the formal articles of the declaration. The resulting, heavily Christian, document represented the clearest articulation of inviolable rights and protections in human history.
Our current human rights legislation owes much to this document and philosophy and covers some fundamental issues (that date back to Magna Carta and before): prohibition of slavery; right to personal liberty; right to a fair trial; no punishment without law; right to privacy; freedom of expression; freedom of thought, conscience and religion; freedom of personal assembly and the right to join trade unions; the right to marry; the enjoyment of rights without discrimination; the protection of property.
Set down so baldly, it is hard to argue with the ideas behind such legislation. It is thanks to the HRA, for example, that the Hillsborough inquest was reopened. The first inquest into the deaths of 96 people at a football game between Liverpool and Nottingham Forest on April 15, 1989, returned a verdict of ‘accidental death’. This was quashed in 2012, and a second inquest ordered, largely on the basis that Article 2 of the HRA (right to life) meant that the state was bound to ensure that suspicious deaths were properly investigated.
The outcome was a vindication for those who campaigned for 27 years: deaths at Hillsborough were unlawful, caused by the neglect and negligence of the state.
A SHORT HISTORY OF CAPITAL PUNISHMENT
The death penalty has existed in Britain for almost all of its history; so too for the history of humanity more generally. In Tudor times, you could be hanged, burned, quartered, beheaded or boiled alive.
In the 18th century virtually anything was a capital offence (under the aptly named Bloody Code): forgery, poaching, damaging Westminster Bridge, associating with gypsies, being out at night with a blackened face, cutting down a tree, robbing a rabbit warren, and the like.
By 1861, effectively these had been reduced simply to murder charges; and seven years later, the (much rarer) executions were transferred inside prisons, away from public view. Had you been alive, though, for the 60 years around the turn of the 18th century in London, you could have watched the spectacle of public execution more than 1,200 times.
In the First World War 306 British soldiers received the death penalty for cowardice and desertion, creating a sense of revulsion that lingers until this day. Indeed, the first half of the 20th century revealed a growing moral squeamishness at the prospect of state-sanctioned death: 45% of all sentences were commuted on appeal, and some notable cases demonstrated the risk of error in the system.
In 1950 Timothy Evans was hanged for murdering his pregnant wife and their baby. The couple had sought to obtain an abortion from their landlord, John Christie, who had managed to convince them that he was a medical expert. He was, in fact, a necrophiliac serial killer, with two women already buried in his garden. He raped and murdered Beryl Evans and killed the baby; he then proceeded to act as a prosecution witness against Timothy.
There were already suspicions about Christie: police could have spotted, for example, the human thigh bone propping up an awning in his garden. Evans’s mother accused Christie of murder outside court; his wife Ethel leapt to his defence, calling him a good man. Sadly, she was strangled by him two years later. He was eventually executed in 1953; three years too late for Evans.
By 1957, the government was forced to introduce a Homicide Act to cling to the principle of the death penalty, having to restrict its application even further. It did still maintain that ‘long-drop hanging’ was the most humane method, although this is now disputed.
By 1965, a new Labour government under Harold Wilson was in power, determined to end what it saw as barbarism, which it managed to do in the teeth of contrary popular opinion and the views of many in the Conservative Party. It is notable – and borderline terrifying – that public views of the death penalty are oddly tolerant. According to the British Social Attitudes Survey, support for the death penalty only dropped below 50% for the first time ever in 2014 (it was 75% in 1983). A recent BBC survey put the figure at 59%, with the young only slightly less bloodthirsty than the old. More than half of those who voted Leave in the EU referendum support the death penalty, which may or may not be indicative of something.
UKIP had restoration of the death penalty for terrorists and child killers in its 2017 election manifesto, its then leader, Paul Nuttall, confirming that he was willing to act as executioner himself.
Needless to say, there is no evidence that the death penalty serves any greater moral or public good. In America, murder rates are lower in non-death penalty states than death-penalty states. But our collective view on law and order is not always reflective of what is good or right: emotional ideas of retribution and painful sanction will always intervene.
SHOULD ALL POLICE BE ARMED?
This question has arisen in the spate of recent terrorism, especially given that the policeman murdered at Westminster in 2017, PC Keith Palmer, was unarmed at the time. It is not a new question, by any means.
In 1883 the Evening Standard responded to yet another moral panic with this editorial: ‘It is not only foolish but absolutely cruel to send policemen out to combat men possessed with revolvers, without any other arm than a short club.’ That year, regulations were amended to allow police to be armed if they were on a dangerous beat; the practice lasted until 1936. The current position is that police have a number of firearms units, which can be deployed at need: 6,500 police are trained in the use of firearms, with 2,500 of them in London.
Largely, the British police have a fine record in not discharging their weapons negligently or unnecessarily. In 2016, police fired seven times; in the last 20 years fewer than 40 people have been shot. That is not to say there have not been controversies or mistakes. In 2005, in the febrile aftermath of the 7/7 bombings, Jean Charles de Menezes was shot for the imaginary crime of being sweating, dark-skinned and carrying a backpack. Mark Duggan, an alleged gangster, was killed in 2011 by a marksman who held an ‘honest belief’ Duggan was about to open fire himself. This behaviour by police prompted riotous protests across the country.
In essence, the test for firearms police is the extent to which they have a reasonable belief that there is a threat to life that can be forestalled by armed intervention. In April 2005 Anthony Long fired six times into the head and body of Azelle Rodney, having acted on intelligence that he and others, armed with automatic weapons, were going to rob a drug deal. Long said this: ‘All I had was seconds to make the decision whether I was going to let my colleagues be shot by someone with a submachine gun or whether I was going to take a life. I chose to take his life. That was the decision I made and I stand by it.’
No machine guns were found at the scene, although other weapons were. In 2013 an inquiry found that Long had no lawful reason to fire on Rodney. He was subsequently prosecuted for murder and acquitted. No police firearms officer has ever been convicted of murder in British legal history.