David J Black: Montesquieu versus Zola – a little matter of social justice
If he might crave the reader’s indulgence, this idle scrivener would very much like to share his fun idea for an exciting new parlour game or, equally, a pub quiz for the judicially aware at any learned hangout where good claret can be had. A subtle combination of Where’s Wally and Cluedo, it offers hours of gruelling delight for those who like such things.
For marketing reasons, finding the right name is all important, of course. One might oscillate between Montesquieu’s Conundrum and Rishi’s Muddle but in the interests of clarity and for the avoidance of doubt let’s just opt for simplicity and call it Spot that Precedent. This fascinating board game (we can leave the pub quiz for later) is going to be designed for three competing teams which may be cleverly designated ‘the executive’, ‘the legislature’, and ‘the judiciary’.
It is essential to appreciate that this inspired wheeze has its roots in what passes for reality in certain august legal circles in modern Britain. For example former Lord Chancellor and Secretary of State for Justice (2019-21) Sir Robert Buckland KC MP claimed that is would be “unprecedented” for the government to sanction a general pardon for those innocent individuals who fell foul of the Post Office Horizon failure.
Unprecedented? Really? Is the man unaware of the mass exoneration of 306 shell-shocked British troops shot at dawn for alleged cowardice during the First World War? Or how about those criminalised for ‘gross indecency’ under the 1956 Sexual Offences Act who were pardoned en masse in 2017? Failing that, there’s the Miners’ Strike (Pardons) (Scotland) Bill which was passed by the Scottish Parliament in July 2022 and conferred “a collective and automatic pardon” to all those convicted of such offences as police obstruction during the 1984-5 miners’ strike.
All in all, precedent would appear to trump persecution in several iterations, though The Guardian’s Daniel Boffey insists the current predicament should not be equated with the granting of a pardon to the soldiers shot for cowardice in the First World War or those convicted over homosexual conduct in the armed forces. These convictions were “not expunged, but disregarded” he opines. In other words, a pardon is not an acquittal. True, if a mite semantic. At this point we should probably attach an additional team to our board game. Let’s just call it the Fourth Estate.
England’s former Attorney General Dominic Grieve KC is another who suggests that Parliament has a duty to protect the independence of the judiciary, while Keir Starmer’s predecessor as director of public prosecutions, Lord MacDonald, has concerns about MPs seizing the rights of judges and the courts to decide which among us is guilty or not guilty. Never mind that orders in council and royal prerogatives have been conjured up for all sorts of things in the past.
The thinking among those whose judicial squeamishness has them desperately lining up legal angels on the head of a pin is presumably that they are themselves in desperate need of a smokescreen in this election year, given that the Horizon scandal is above all a political failure, and no political party can deny culpability.
It is also about a sclerotic political establishment’s withering disdain for ‘the little people’, and the sudden revelation that, with a bit of help from Toby Jones, Alan Bates, and Nick Wallis of Radio 4, the little people are as mad as hell and just won’t take it any more. The note of panic in Rishi Sunak’s voice was palpable. The poor fellow must have been quaking in his £490 Prada loafers.
Just as Dr Johnson thought patriotism the last refuge of a scoundrel, so do the green-benchers of our own time conveniently take refuge behind the handy ‘judicial independence’ shibboleth. Yet is there a judge in the land who believes that a miscarriage of justice should be maintained on the grounds that not to do so would offend Baron Montesquieu’s divine dictum? Highly unlikely, so why are our politicos squealing like piggies on that particular pikestaff?
The three branches of government operate under the principal of dynamic equilibrium, with no single one of them dominating the other two. The function of a judiciary is to enact laws framed by an executive with the approval of a legislature. All are free to agree to the initiation of some sui generis statutory instrument to achieve a desirable end by general agreement in specific cases without bringing the entire house of cards tumbling down.
For the UK Parliament to enact a bill quashing what could reasonably be described as a shameful gamut of unsafe convictions would, some airily imply, have the author of Spirit of the Laws spinning in his Gallic Sarcophagus. The fact that this might offend any reasonable concept of social justice and start Émile Zola spinning in another Gallic Sarcophagus would appear to be not in point.
Isn’t it odd how, in our post-Brexit state of grace, we still allow the French to guide us? Happily for Francophobes, James Madison restated the point in Federalist Paper 47. “The accumulation of all power, legislative, executive and judiciary in the same hands – may justly be pronounced the very definition of tyranny.” In l’affaire la Poste, however, the tyranny in question arose under the aegis of a Westminster government which wantonly ignored the protests of ill-used postmasters and justice-seeking parliamentarians such as James Arbuthnot and Kevan Jones. The executive, for all its qualms about the holy grail of judicial independence, was only covering its backside.
Jurisprudence, it seems, should never be confused with justice, far less mercy. It’s all about process, the niceties of which must always be carefully safeguarded lest the political classes wander into the motorway lane of judicial purity, to paraphrase Post Office minister Kevin Hollinrake. Not that this fastidious little procedural detail prevented certain occupants of the green benches from applauding one of the most legally provocative headlines ever to appear in a UK newspaper – the Daily Mail’s “Enemies of the People” denunciation of the three judges who had ruled that Brexit required the endorsement of Parliament, rather than the simple use of a royal prerogative.
But that was then, and this is now. It can hardly be beyond the wit of the most synaptically challenged politico to come up with a variant of ‘Alan Turing’s Law’ as enshrined in the 2017 Policing and Crime Act – the humanely devised mechanism whereby once criminalised homosexual men had their dignity and honour restored.
The perpetuation of a manifest injustice on the specious grounds that failure to do so might not quite accord with an 18th century French Baron’s neat constitutional calculations is hardly an all-prevailing virtue, especially in modern Scotland, a country in which the head of the state prosecution service is also a member of the government! One can only imagine what the Baron would have made of that!
I must check with messrs Waddington to see if we can get Spot the Precedent launched before next Christmas. Round one to Émile Zola, as far as this scrivener’s concerned.