William Roper: So now you’d give the Devil benefit of law!
Sir Thomas More: Yes. What would you do? Cut a great road through the law to get after the Devil?
William Roper: I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes I’d give the Devil benefit of law, for my own safety’s sake.
Robert Bolt, A Man for All Seasons, 1960
The preceding chapters offer merely snapshots of how the stories we are told about justice corrupt and warp our understanding. Limitations of time and space necessitate selectivity; those in touch with the law in other fields could no doubt offer several compendia of the damaging impact that misinformation has had on their corner of the justice system. Even in the subjects covered, far more has been omitted than could ever practically be included.
It is easy to feel hopeless. There is so much inaccuracy and misunderstanding, and so great an imbalance in power and reach between those in the pulpits and the fact-checkers on the sidelines.
I certainly feel it, at times. And there is a temptation, having trotted around on my hobby horse and sent my flares soaring into the night sky, to silently dismount, stride away into the darkness and leave the difficult business of solutions to others. However, it seems only right that I offer something by way of suggestions as to what might realistically be done. No spoiler warning is needed for the revelation that there is no quick and easy panacea, but I can perhaps tentatively proffer some starting points.
Before doing so, however, I want to say one final thing about the media. This book has stridently and unapologetically criticised and berated news outlets, editors and commentators across the political spectrum for the way that stories about justice are treated. Bad law reporting is rife and it is pervasive. It is also, as I have attempted to show, capable of being exceptionally dangerous. But it is not universal.
There are some brilliant journalists covering the justice system: local reporters, new media, bloggers, correspondents, industry specialists and mainstream commentators who understand the subject area and the principles, and who report and criticise the system scrupulously fairly. As I have been at pains to reiterate in each chapter, law and justice absolutely should be the subject of fierce and frequent debate. It is essential to a healthy democracy that we never become complacent about how our laws work; we should constantly seek improvement and re-evaluation; the decisions taken inside and outside our dusty courtrooms must be held up to the brightest sunlight and the professionals held to account. While I stand resolutely by the facts I have offered throughout this book, the opinions I have expressed are not inarguable; this is a polemic, not a gospel. I have aimed to offer perspectives which tend to counter the dominant narratives, but you may quite reasonably disagree with the arguments, or the interpretation of the first principles, on which they are built. Often our justice system fails its ideals. There is plenty of space – and I would call for even more – to argue over what we understand by justice, and what we expect our legal system to achieve. As I said at the very beginning, the justice system is owned by us, the people. We all have a stake in it, and all have a right to our view as to how it should function. There is often a gap, if not a chasm, between the opinions of the legal profession and the public we serve, and we should never be so arrogant as to claim the debating turf as our own. It is shared.
My complaint therefore – I hope it is clear – is not that the media amplifies views with which I might disagree; for the foregoing reasons, it is vital that they do. Rather it is that the debate is not fought on Queensberry rules. Misreporting basic facts, distorting context, establishing false premises and ignoring first principles all serve to exploit the knowledge gaps of the audience and afford an unfair advantage in the battle of ideas. If the positions that are contended for are meritorious, they will stand up on their facts. If they are weak, or advanced in service of an agenda that is counter to the readers’ interests, they should not evade critical evaluation by virtue of editorial disguise or rhetorical dishonesty. I want an improved debate, not to shut it down.
I emphasise this with acute awareness of the perilous waters that journalists across the world are presently treading. Investigative journalism is needed now more than ever, and is under threat not only in the predicted autocracies, but in established allied democracies. Close to home, battles that we complacently assumed had been won are being refought on new fronts. ‘Enemies of the People’ was invoked in the United Kingdom against the judiciary, but has been deployed subsequently by President Trump against the American media engaged in legitimate reporting of the activities of his political circle. His frequent diatribes and hoarse squeals of ‘Fake News’ and ‘Enemies of the People’ have culminated in journalists being assaulted at his rallies1 and bombs being sent to news outlets,2 and similar rhetoric can frequently be found in the abuse of UK journalists by those at the political extremes, both right and left.3 Common to each instance is a desire to avoid scrutiny, evade accountability and ultimately cow the free press into silence.
So, while I strongly encourage elements in the media to improve, I make clear that I criticise as an avid supporter of a free press. The solutions to the problems I identify do not exist in any form of state regulation – from principle as much as practicality, having regard to the spread of the social-media jungle. I would obviously encourage higher standards in self-regulation, but that is ultimately out of the public’s hands.
Instead, the changes I would suggest are aimed elsewhere in our system.
There is a reason that newspapers don’t run front-page stories about alien abductions: both the media and its audience are equipped to immediately recognise them as fictional. However sensationally juicy such tales might appear, editors and reporters understand the absurdity, and know that their readers simply won’t buy it. There is a commonly recognised floor of public education and understanding. This creates a filter, ensuring (for the most part) that stories which insult the intelligence of both writer and reader don’t make it into copy, or at least not past the subs.
There is no equivalent floor of general understanding of the law, or at least it is set so low as to be underground. This means that, faced with a press release from the Ministry of Justice about legal-aid expenditure or a Twitterstorm encircling a criminal sentencing decision, few people on the supply chain between news reporter, subs’ desk, senior editor and reader have the tools to critically evaluate what they are dealing with. While some mainstream outlets still have specialist legal correspondents, the role has disappeared from many newspapers, with law reporting bundled into home affairs or politics. The accuracy of these stories therefore depends on the knowledge, understanding and motivations of the news desk and back benches. If either of the first two is lacking, the result is often superficial or misguided treatment of a complex story. If the latter is corrupted, it is possible for important stories to be wilfully distorted in accordance with editorial agenda. While I don’t suggest that all of the examples contained in this book are born of malevolence – Hanlon’s Razor, requiring that we should not attribute to malice something that can equally be attributed to incompetence, is a lodestar here – there is little doubt that many represent at best a reckless disregard for legal accuracy, and some can only be understood as intentional misrepresentations. The legal correspondent for the Daily Telegraph, the highly respected Joshua Rozenberg QC, resigned in 2007 after news editors amended one of his reports on a human-rights case to add a false claim that a court’s decision ‘could open the way for civilian victims of military actions [in Iraq] to sue the Ministry of Defence for millions of pounds’. As Joshua Rozenberg explained to Newsnight in 2015, he had told editors that, ‘It would make a better story, but it just isn’t true.’ The Telegraph nevertheless printed the falsehood, and Mr Rozenberg resigned.4
A similar tale reverberates around Westminster and Whitehall. Despite the prevalence of solicitors and barristers in both Houses of Parliament, those on the ground report a culture of widespread ignorance of the law among those responsible for making it. Isabel Hardman, political journalist and author of Why We Get the Wrong Politicians, identifies a number of problems with the culture of Parliament, which means that ‘MPs often don’t understand the domestic legislation they are voting on.’5 The public pronouncements of those quoted in this book arguably stand testament to that claim.
Consequently, sensationalist nonsense about the law can be sprayed across the nation with impunity, with the more cynical among the political and media classes free to adopt the rigour of the Sunday Sport safe in the knowledge that the information gap will insulate them from any pushback.
The remedy lies in public legal education. Our rights can only be removed and false narratives pumped throughout our culture as long as we lack the tools to identify what is happening.
There is – belatedly, but thankfully – a genuine impetus now in train, in part due to the sterling efforts of then Solicitor General Robert Buckland MP. Having established an All-Party Parliamentary Group on Pro Bono and Public Legal Education in 2017, Mr Buckland, in late 2018, published a vision statement and briefing paper offering a ten-year vision for public legal education (PLE).6 Bringing together a number of organisations, including Young Citizens, the Law Society, the Bar Council, the National Justice Museum, Youth Access, CILEX, the Magistrates’ Association, the Institute of Paralegals, Citizens Advice, Law for Life, the Bingham Centre for the Rule of Law, the Legal Education Foundation, the Law Centres Network and the Association of Law Teachers, the paper sets out a strategy for improving public understanding of legal issues and the public’s access to legal information and advice, stretching from school through to adulthood.
The problems in schools need urgent attention. While the national curriculum requires that schools teach Citizenship Education, which should in theory educate children about the rule of law and the justice system, a House of Lords Select Committee Report in 2018 concluded that, ‘The Government has allowed citizenship education [and by extension PLE] in England to degrade to a parlous state.’7 Citizenship is rarely taught by specialists (the number of trainee Citizenship teachers fell from 240 in 2010 to just 54 in 2016), and Ofsted is no longer required to inspect it as a subject. Government funding for the Citizenship Foundation, which provides training for non-specialists, has fallen to ‘virtually 0 per cent’.8
Reimagining legal education as a priority subject, as central to preparing a child for life as language and mathematics, is needed. Further, it should not be taught solely in silos; law, justice and rights should be as infused throughout the curriculum as they are everyday life, from primary school through to secondary and beyond. An understanding of the principles of our justice system should be as essential to journalistic qualifications as shorthand. While I would stop short of demanding that inductions for new MPs include mandatory law classes, it is not too much to expect each and every representative to make sure that they fully understand the principles and practices underpinning the laws they make.
If our system is working, each of us should, upon stepping into the big wide world, have a sufficient understanding of our rights and of the justice system to at least be able to identify a potential legal problem, and to know where to turn for further information. A task force in 2007 estimated that around one million civil justice problems go unresolved every year because people do not understand their rights or know how to navigate the legal system. While the human suffering of legal exclusion is difficult to quantify, the economic cost of unresolved legal problems is estimated at £13 billion over a three-and-a-half-year period.9
The legal system must do more, too. I have already taken aim in the opening pages at the systemic lack of transparency, and I’ll repeat the obvious, simple fixes: ensure that all primary and secondary legislation is up to date and freely available online; properly fund BAILII so that it can publish and host all judgments from the High Court, Court of Appeal and Supreme Court, with the significance of judgments explained in the same way as in the paid-for law reports; publish judges’ sentencing remarks from Crown Courts wherever possible, especially in cases likely to attract media attention. More ambitious proposals would include improving public and media access to the transcripts of proceedings such as criminal trials. Presently, members of the press and public can request a transcript of the audio recording of Crown Court proceedings, but these cost between £100 and £120 per audio hour. This means that a transcript of the evidence in a week-long Crown Court trial will cost around £3,000. New automated transcribing technology is capable of cutting this cost by 90 per cent.10 The UK is behind the US, Canada and Australia in deploying technology to improve public access to the law.
One of the main reasons for the disconnect between the courts and the public is the demise of local court reporters and local public-interest journalism. A survey in 2016 suggested that fewer than half of local newspapers have a dedicated court reporter, with 40 per cent of those not attending court more than once a week.11 The Cairncross Review into a sustainable future for high-quality journalism identified in its 2019 report that law reporting has been ill served by commercial press models in recent years, and proposed amendment of charity laws so as to permit forms of public subsidy for public-interest local journalism.12
Each advance in public legal education should, if our democracy is functioning, automatically lead to another. School leavers who understand the justice system become journalists who understand the justice system, who write for a public who understand the justice system, who vote for politicians who understand – and, most importantly, respect – the justice system. The justice system itself, open, transparent and accessible, should be something on which we all feel qualified to offer informed opinion.
But it cannot all be left to fate. There is need for oversight – a politically independent guardian of the rule of law, judicial independence and the efficient administration of justice, able and willing to speak out publicly in favour of our principles and, if required, in rebuttal to government, Parliament or the media. Where a Fake Law story looks like gaining nationwide traction, a rapid refutation should be fired out. If a court decision is causing opprobrium, the watchdog should be the first port of call for journalists and broadcasters. As judges cannot personally respond to criticism, the watchdog should be unleashed all over television, radio, newspapers and social media to explain – not justify, but explain, by reference to cold facts and first principles – the way in which the decision was reached. Where public rancour is incited by dishonest foreign politicians in sensitive cases involving the life and death of British citizens, it should not be left to tweeters, bloggers and the representative bodies of legal professionals to try to drip oil onto the troubled oceans; the watchdog should already be pulling into Sky News on their supertanker. Where fiscal squeezing is resulting in damage to legal aid and the operation of the courts, the watchdog should be howling at the Treasury, reminding the public that access to justice and properly funded courts are not a political football, but the immutable foundations of our democracy.
As for who this watchdog should be, an obvious candidate emerges at the appendix of the body politic: the Lord Chancellor. This, after all, though recent history may cause us to forget, is the individual with the constitutional responsibility to uphold the rule of law and defend the independence of the judiciary.
Since the role was fused with that of Secretary of State for Justice in 2007, the inherent tension between the political loyalty and economic thrift expected of the Justice Secretary and the fearless independence of a Lord Chancellor charged with ensuring the courts are properly funded has usually seen the Justice Secretary’s violent Mr Hyde triumph over the Lord Chancellor’s meek Dr Jekyll. The post has bounced between candidates of varying competence and integrity, some of whom, we have seen in these pages, have been in material breach of their constitutional duties. The union has failed. Secession is required. Recast the Lord Chancellor as a non-partisan defender of the legal system, with no interest in seeking higher political office: a watchdog that barks, instead of a lapdog that wags. A retired judge, perhaps, or legal academic, who views the role as a career pinnacle, rather than a political stepping stone; someone prepared to fight without fear or favour in defence of the rule of law, and who is prepared, if the need should ever arise, to bring a government to its knees in defence of the principles that bind us.
For it is in those shared principles that we find not just the kernels of our democracy, but our humanity. In a polarised global polity, I worry that we forget that. That when we allow ourselves to be misled as to how and why our system is built as it is, we become persuadable that it is in our interests not only to condone the corrosion of our rights, but of the bonds that tie us together, that make us human.
And I worry how regularly we see this reflected in our national conversation. How quickly we revert to othering, to demanding the removal of rights for those of whom we disapprove, having been convinced by wicked whispers in our ear that the same rights do not apply to us. How swiftly we call for harsher treatment of our neighbours who transgress, in satisfied self-assurance that neither we, nor anybody we hold dear, will ever fall short.
A YouGov survey in June 2018 examined the most fertile ground for a new political party and found that the issue on which most Britons felt unrepresented was justice. This was towards the end of a decade in which legal-aid cuts had left victims of domestic violence at the mercy of their abusers in the family courts; employment-tribunal fees had prevented exploited workers from claiming unpaid wages from exploitative employers; homeless families were denied legal help to get off the streets; disabled people were unable to challenge wrongful punitive government sanctions; children were forced to represent themselves in deportation proceedings; average prison sentences reached record lengths;13 we imprisoned more people per capita than any other country in Western Europe;14 £1 billion cuts to prisons coincided with soaring rates of overcrowding, violence, self-harm and death,15 giving the lie to the laughable tabloid claim that the prison estate is ‘Butlins with bars’;16 and politicians routinely and boastfully ignored the rule of law where it proved politically inconvenient.
Why did the Great British public feel unrepresented? Did they feel that no party took access to justice seriously? Did they worry that the legal system had been rendered off limits to the most vulnerable? Were they irate that the government had unlawfully removed their right to seek justice against abusive employers bullying, harassing, discriminating and refusing to pay their wages? Were they outraged that those stepping through the prison gates – the innocent, the guilty and the low-paid prison staff – were dying inside in record numbers due to staffing cuts and Chris Grayling’s ‘spartan prison’17 regime? Did they feel shame that Britain was forcing parentless children who had grown up in our country to defend themselves in court against the threat of deportation?
No. The complaint – about which people felt more strongly than the National Health Service, education or the economy – was that the justice system was ‘not harsh enough’.18
The message – surrender your rights – is not merely working, but viral, replicating throughout our culture. Time and time again, we are encouraged to punch ourselves in the face, our instinctive reaction being not to refuse, or even to ask why, but to sock ourselves in the eye, screaming, ‘Harder?’ When it comes to justice, our national dialogue is a soliloquy – each of us playing Roper, refusing sympathy for the devil and demanding the laws are cut down to catch him. The role of Sir Thomas More is left uncast; neither politicians, nor media, nor public are prepared to so much as audition.
One day, I hope we might all be persuaded to read for the part.