Francis FitzGibbon

Common Sense: Conservative Thinking for a Post-Liberal Age was published in May by the self-styled Common Sense Group of around fifty Conservative MPs. Along with chapters on such themes as ‘What is Wokeism and How Can it be Defeated’, ‘The conservative case for Media Reform’ and ‘A Common Sense Model for Poverty’, are the reflections of two MPs on ‘The Judicial Activists Threatening Our Democracy’. The group has received favourable coverage from the Telegraph and the Express. Anyone who thinks that British courts have become a hotbed of anti-government ‘judicial activism’ should ponder two judgments given by the UK Supreme Court on 30 July.

The 1819 Seditious Meetings Act fell into disuse but remained on the statute book until its repeal by the Public Order Act of 1986. Now it is being revived in the Police, Crime, Sentencing and Courts Bill. This monstrous piece of legislation is intended to make it a crime to do something in public that causes, or risks causing, ‘serious annoyance’ or ‘serious inconvenience’.

The Covid-19 regulations are draconian, inconsistent, obscure and inconvenient, but they are not unconscionable. They do not require me to do things that the state should never make its citizens do. They are proportionate to the threat that the virus poses to health services, and necessary to slow the spread of the disease and protect those services: or at least, they are arguably so. The law and the reasons for it make sense. The regulations are contained within statutory instruments. They alone are the law. They are the ‘rules’. They can be enforced with criminal sanctions. Guidance and advice are not rules and cannot be legally enforced.

‘A good jury turns into a little community,’ Baroness Hale has said, ‘working together in the interests of justice.’ As a jury advocate for over thirty years, I have always been impressed, and often humbled, by the care and dedication they give to their work. Academic research supports the experience of criminal lawyers that juries are fair, and do their utmost to bring in the right result. In every case, it isn’t just the defendant on trial: the state itself is on trial, too, in public, before its citizens. Can it prove its case to the high standard the law requires? Has it used its coercive powers wisely and lawfully? Have its operatives in the courtroom – the judge and the lawyers – conducted themselves properly?

The criminal courts and the jails that feed and are fed by them are ideal incubators of Covid-19. It comes as no surprise that an elderly prisoner has died today, either from or with the virus, and he won’t be the last. Courts bring people together in small spaces for hours or days at a time, in the courtrooms, the cells, and the jury rooms, not to mention the offices where the staff work. In the basement cell area of a court I attended recently, a single air-conditioning unit blew the same air through all the cells and into the interview and staff rooms. My colleagues have been complaining for years about broken plumbing, absence of soap and towels, and frequently filthy conditions.