On 8 December 2005, after a four-day case involving 19 barristers, the Appellate Committee of the House of Lords (as the forerunner to the Supreme Court was unglamorously known) gave judgment in A and Others v Secretary of State for the Home Department (No 2). The seven law lords laid down a rule of seemingly great importance: that evidence which was – or was likely to have been – obtained by torture was never to be admissible in legal proceedings. The secretary of state had argued strongly that such evidence should be allowed to be used, but he was soundly defeated. ‘From its very earliest days the common law of England set its face firmly against the use of torture,’ the senior law lord, Lord Bingham, declared; as a 19th-century jurist had put it, the practice is ‘totally repugnant to the fundamental principles of English law’ and ‘repugnant to reason, justice and humanity’.
In 2011, Theresa May told the Conservative Party Conference that the Human Rights Act needed to be restricted. One of the examples she gave of its alleged excesses was an ‘illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat’. Except she was making it up, or at least grossly exaggerating one small part of a case into its entire rationale. In March 2013, she created another stir by suggesting that the next Tory election manifesto should include a promise to dump the European Court of Human Rights. This forced old school Conservatives such as Kenneth Clarke to defend the Strasbourg body – which was just what she wanted, as it would make them more unpopular with Europhobic Tory voters, while boosting her own Eurosceptic credentials. May’s speech on Brexit earlier this week needed some xenophobic noise to camouflage her pro-EU stance in the referendum campaign; human rights were once again her target.
Equal treatment under the law only really works when not everybody counts as human. The classical Athenians enjoyed their freedom behind a franchise firewall that kept most people out; the parliamentarians of John Locke’s time accorded each other equal respect but contrived to notice no one else. The truths held to be self-evident by the founding ‘fathers’ of the United States a couple of generations later only applied to rich white men. During the 19th century, British labour activists and Irish nationalists found the law to be good at protecting the Salvation Army and anti-nationalist rabbles, but not so good (entirely absent actually) where their own activities were concerned. In 1925, the home secretary, William Joynson-Hicks, defended an egregious prosecution of Communists by explaining that they had not been engaged in the ‘right kind of freedom of speech’. Fascists could march but protests by unemployed workers were brutally broken up.
The police do not need any new legal powers to deal with the kind of disorder that has been seen this week in English cities. The Thatcher government’s 1986 Public Order Act put the crimes of riot and violent disorder on a statutory basis, with those convicted being liable to terms of imprisonment of up to ten and five years respectively. Despite the prime minister’s snide remark in the Commons yesterday, there are no human rights concerns, ‘phoney’ or otherwise, that prevent pictures of suspects being circulated if that’s the most effective way of bringing them to justice.
The law presents some inconvenient obstacles to the coalition’s series of assaults on the poor. The government is meeting the threat in two ways. When it has no option, it removes legislation that requires it to act as though fairness were more than an advertising slogan. So Harriet Harman’s Equality Act is to be repealed. Much better from the coalition’s point of view, however, is to preserve the form of the law while making sure the poor have no chance to use it.
The rule of law has become a constitutional treasure in Britain because it has managed over the years to deliver an appearance of legality without threatening to destabilise the exercise of raw executive power. Judges have held ministers to account on matters of no great importance - but they always used to run for cover if the magic formula 'national security' was so much as whispered in their presence. Unions have been banned (at GCHQ), internment imposed (during the Second World War), political parties censored from the media (Thatcher's ban on Sinn Féin), CND protesters prosecuted under the official secrets act - and all with the enthusiastic endorsement of successive generations of judges who saw themselves (almost unashamedly) as the iron heel (as Jack London put it) with which brutally to stamp out dissent. The last of these regiments of yes-men were the generation (Lane, Donaldson, Bridge, Denning et al) who saw it as their duty to make sure that any Irishmen brought into their courts, on any count, stayed in the jails to which the police had consigned them - regardless of how obviously ill-treated they had been, or otherwise vulnerable.