You can trace some strong threads in the long history of our law. We have sought to put the law, not men or women, over all of us. We have sought to give all people equal rights under the law and to make everyone equally subject to the law. We have sought to ensure that people can be deprived of those rights only after a fair trial conducted by an independent judge, and in serious cases, a jury. We have sought to provide that any change in the status of a person should come from an agreement between people rather than by a decree from above.
Current proposals to put people outside the law, or at least some of it, by government decree rather than by a judgment of a court risk running across all those aspirations and achievements.
You can also see the kinds of argument or device that are commonly invoked to get around those principles. People are told that the nation is in danger. The French Terror was heralded by the declaration La Patrie est en dangere. The leader might be personally threatened. If the threatened leader is compared to the boy who cried Wolf, his answer is that of the con-man of the ages – Yes, but this time it’s different. Then people are told that the powers that are sought are only emergency powers for a passing crisis that will be surrendered when the crisis is passed. Finally, people are told that the good guys must not let the bad guys take advantage of their goodness.
It may help to look at some precedents.
The Greek nation is a very modern invention. There was nothing like it in the ancient world. They never got beyond city-states that warred among themselves.
In the 6th century BC, many cities were consumed by fights between clans or classes. Dictators or tyrants arose who attempted to impose peace and order. One such dictator in Athens was called Peisistratus. He seized power and became a tyrant through a stunt that made even Herodotus smile but which would be much followed later. He appeared in the agora wounded, he claimed, by his rotten enemies who were against him as a friend of the people. He got the Hill in the assembly to vote him a bodyguard for the emergency, and then he used that bodyguard to seize the acropolis, and make himself master of the city-state. People like Mussolini and Hitler would follow the same pattern – an exaggerated threat; an emergency response, followed by a seizure of power. You see waves of the same reaction during the French Revolution.
Another dictator in Athens was Cleisthenes. He allowed people to decide whether to hold an ‘ostracism’ once a year. That way, if more than 6000 people were present, and enough bits of pottery were cast, a trouble maker could be packed off to cool off for ten years. This is what we call a safety valve. This was useful back then and represented a kind of democracy, of a very direct sort, in operation. It is rather like the right of a party or club to expel a member, but it is notorious that the exercise of such a right can lead to bad strife, and Greece itself as a nation is now looking down the barrel of ostracism from Europe.
Outlawry was known to ancient Rome, at least until early in the empire, but it became notoriously abused as a weapon in factional politics. There is ultimately likely to be something like a moral problem when a group of people decides to exclude some of the group. The moral risk is that those excluded lose out unfairly, because the majority are being judges in their own cause, or that the majority just gets narrow-minded, arrogant, and power hungry. You see it all the time in every walk of life. Too often, exclusion is the confession of moral failure and a claim to too much power.
In the middle ages, we see a slow shift of judicial power from God and his church to judges and juries. The shift takes centuries. As a leading legal historian said: ‘The word Churchman means today one who belongs to the Church as against others. In the Middle Ages, there were no others, or, if there were, they were occupied being burnt.’ Self-help loomed large early. A thief caught red-handed could be put to death on the spot. Gradually people came to see that the notion of the King’s peace was better and safer than revenge and the vendetta.
The King protected his peace by issuing a royal command to someone breaking it. That command was called a writ. What happened if the wrongdoer disobeyed the command? The ultimate sanction of our ancient law was outlawry – anyone could then kill the wrongdoer who was outside the protection of the law. The idea was that he who breaks the law has gone to war with the community and the community then goes to war with him. He is not merely a ‘friendless man’, but a wolf. It is like the Mafia notion that you are for us or against us. The person decreed to be outside the protection of the law was in truth surrendered to the mob, although not necessarily in the cavalier manner that Pontius Pilate handed over a young man called Jesus of Nazareth to the mob.
Over time, this barbarous extreme was replaced by the common law offence of contempt of court. It is a crime that can be prosecuted and punished subject to the law of due process. Our law has not formally dealt with outlawry for many centuries. It was in truth a confession of failure on the part of the law.
The English may or may not have invaded Ireland with papal authority, but there is no doubt that the Statutes of Kilkenny of 1366 were an expression of the racial contempt that the English then had for the Irish. They sought to impose a form of apartheid by limiting the English colony to ‘obedient shires’ and putting those beyond the Pale outside of English law. The English settlers were further protected from ‘degeneracy’ by other statutory prohibitions.
The comparison not just with apartheid but with the Third Reich is sickening – even if we have to go back six centuries. In the Oxford History of England, May McKisack said: ‘It is sometimes suggested that these famous statutes are meant to be read as a declaration of war against the Irish; on the contrary, they are to be read as a confession of defeat.’
The English did adapt the Norman form of inquisition in a way that would lead to fact-finding by a jury in a court of law – a form of trial that still preserves its pre-eminence in the U S – but they managed to avoid the horrors of the inquisition that were practised in Europe, especially in Spain. English legal historians have never sought to disguise their relief. Maitland referred to the new procedures for the inquisition introduced by Innocent III. He said that the safeguards of innocence were disregarded and that torture was freely used, to the point that ‘the common law of Western Europe adopted it’. Because, he said, the English system had not gone down the way of the Inquisition, England had avoided the impulse that ‘might have sent it down that too easy path which the Church chose and which led to the everlasting bonfire’.
The revulsion of the English for the Inquisition and inquisitorial process was a major part in the revolutions of the seventeenth century. The Inquisition used torture and played games. The Digest put the onus of proof on the accuser, as does the common law, but a well-conducted inquisition obviated this rule by holding that there is no accuser.
The French Law of Suspects has had a bad press, perhaps sometimes unfairly. The Law of Suspects of 17 September 1793 is a model of concise drafting: Clause 1 said: ‘Immediately after the publication of the present decree, all suspected persons within the territory of the Republic and still at liberty shall be placed in custody.’ Clause 2 says who are ‘suspected persons’. Well, the class includes ‘partisans of tyranny or enemies of liberty’, ‘those to whom certificates of patriotism have been refused’ and ‘former nobles’ and their families …. ‘who have not steadily manifested their devotion to the Revolution’. That is to say – anybody. It is hard to imagine a more complete ‘enemy of liberty’ than the author of this law. The law does not say if these people are guilty of any offence, or how they are to be dealt with if they are – it just says that they shall be detained, at their expense, ‘until the peace’.
The French pride themselves on the economy and style of their drafting. Flaubert used to read some of the Code Napoleon each day to warm up on for his writing. (It is impossible for a common lawyer to imagine anyone doing that with any statute ever made anywhere.) The legal drafting during the Revolution may not have received the time and polish of later documents, but it was not long-winded. Most of the decrees are short and to the point and look like they might be addressed to issues of the management of a petanque club.
Clause 3 provided that each Watch (Surveillance) Committee (known as the Revolutionary Committee) is charged with drafting for each arrondisement ‘a list of suspected persons’, and issuing warrants of arrest against them, and having seals put on their papers. The ‘commanders of the public force’ receiving such a warrant must execute the warrant and arrest the suspect immediately. Clause 4 says a committee can only order an arrest if at least seven are present, and by an absolute majority. Clause 5 says that they are to be taken first to the local jail and then, under clause 6, transferred to national buildings. Clause 7 allows the prisoners to have their absolutely essential belongings, and says that ‘they shall remain there until the peace’ (which is not defined). By clause 8, the prisoners have to bear the expense of their custody. Under Clause 9 the Committee must give a list of arrested suspects to the Committee of General Security. Clause 11 allows courts to have detained in jail those who are acquitted before them – this clause makes no express reference to such a person being ‘suspect’. That is the whole law.
Like the decree about the Revolutionary Tribunal, this decree does not say that certain acts are criminal (against the law) – rather it just empowers some people to take some action against some other people without the intervention of a court. But what is clear is that if you had been refused your Civic Card – and we saw what the Paris Commune said about this – or if your Committee did not think that you had steadily manifested your devotion to the Revolution, they could cause you to be arrested and be held in prison indefinitely – without any charge having been made or even any breach of the law alleged; without any evidence having been required, collected, or tendered against the target; and without any intervention from any kind of judicial officer whatsoever. And all at the expense of the victim.
You would for example risk being suspected and therefore arrested and held indefinitely if you called someone vous or monsieur – even though that form of address was the spontaneous habit of a lifetime formed in a customary exhibition of courtesy throughout all classes in all of France.
There is nothing in the law that says that a suspect may be executed or otherwise punished for a breach of the law – it merely says that one class of persons may be detained for the duration, or until the peace. But, in looking at Law of Suspects, we need to remember that it was an emergency measure relating to internment during and for the duration of the then equivalent of a world war that saw most of Europe intent on overthrowing the government of the French nation and assisting in the setting up of a replacement government that was almost certainly contrary to the wishes of a clear majority of the French people.
The French did, however, succumb to terrorism when they lost all decency and allowed conspiracy charges to be heard by popular courts. As time went on, hardly anyone beat the charge. The process became so much more formal and peremptory. People were dealt with in batches – the charges were ‘amalgamated’, a favourite technique of Saint-Just, and toward the end the prosecutor could invite the jury to say that they had heard enough to satisfy their consciences. Paris looked like a lynch mob hungry for prey.
In the 1860’s some Australian colonies restored a form of statutory outlawry to deal with bushrangers who were robbing and killing people at will and terrorising whole towns. The law was first passed in New South Wales as the Felons Apprehension Act and then spread to other colonies including Victoria which was afflicted by the worst of them, the Kelly gang. There was concern about the difficulty of making citizen’s arrests at common law. To those opposed to going back to medieval barbarity, the Sydney Morning Herald had the answer that we still hear today:’ ‘In our tenderness for the liberty of the subject, we are endangering the life of the subject.’
The procedure was detailed and involved judicial findings on evidence presented in court. In order to put a person outside the law, that is to make them an outlaw, the law laid down strict rules. First, there had to be an allegation on oath before a Justice of the Peace that a particular person had committed an offence punishable by death. Secondly, the Attorney General would commence proceedings against that individual by way of an information in the Supreme Court. That Court, if satisfied that the offender was at large and would be likely to resist ‘all attempts by ordinary legal means to apprehend him,’ could issue a bench warrant for that person’s arrest. The Judge then had to order that a summons be published in the Government Gazette and with the view to that process coming to the attention of the accused. The summons required the person named to surrender on or before a specified day, at a specified place, to face his trial. After the date nominated for the person’s surrender, any Judge of the Supreme Court who was satisfied upon proof by affidavit that the offender was not in custody, could declare the person outlawed. The Governor was then required to have published a proclamation to the effect that the person had been outlawed. Then a licence to kill arose if the offender was armed or reasonably believed to be armed – the offender was wanted dead or alive.
Well, they were hard old times, and the outback was scarcely policed. There were areas that looked like they were in a civil war. No one would suggest that process now. But some are suggesting other ways of putting people outside the law without anything like that level of judicial intervention or the giving of evidence in court.
In England during World War II, there was a famous exchange on England’s highest court, then the House of Lords, about a wartime regulation that gave the Secretary of State the power to detain a person if he had ‘reasonable cause’ to believe that person had ‘hostile associations’. If this issue should come before a court, say on a writ of habeas corpus, should the court conclude that it must be satisfied of the ‘reasonable cause,’ or was it sufficient for the Home Secretary to say that he believed that he had reasonable cause? The majority thought that a wartime emergency provision should be applied to make it effective rather than to have it weighed down with fine legal argument. They were also sensitive that they as judges may not have had access to security information gained as part of the war effort. They accepted the submission of the government and held that the opinion of the Home Secretary was enough.
Even at the height of the war, the case caused headlines by the terms of the dissent of a very famous judge named Lord Atkin. He objected to a ‘strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister’. He went on to say:
In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
His Lordship went on to say that he knew of only one authority to justify the reasoning of the majority – and he referred to the colloquy between Alice and Humpty Dumpty in Alice in Wonderland. This remark offended the majority, but not as much as his remark that ‘in this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I’.
Lord Atkin’s reasoning commands general acceptance today, but sensible courts make allowances for decisions taken in extreme emergency, which England plainly was when the man called Liversidge was detained, and also about the need for judges to show some respect for the separation of powers where the executive appears to be acting bona fide in issues involving security and intelligence during wartime.
We need not spend time on the descent of Russia under Stalin and Germany under Hitler into the police state. When it comes to the application of terror in France, Russia, and Germany, the abandonment of the rule of law consists in large part of creating no-fly zones for the law at each end of the process – you deny all rights to the targets and the victims, and you create not just privileges but absolute immunities for the government agents of terror. They are all outside the general law at either end.
With active help from the German Establishment, Hitler in a matter of weeks set off a moral and constitutional landslide that had taken the French years to generate. He did so largely by claiming emergency powers to deal with threats to the State, the same ruse of the Greek tyrants in the 6th century. The Bundestag effectively took itself out of play. In July 1933, they passed a law forbidding the formation of any new parties. On 30 June 1934, Hitler relieved himself of the embarrassment of those who had got him into power, the S A, or the Brownshirts, by having them shot. In what we know as the Night of the long Knives, about two hundred people who were annoying the Fuhrer were gunned down. The destruction of Marxism warranted the toleration of terrorism. The rationale of Nazi terror might change, but not the method.
The most sickening part for a lawyer is the way that real courts were forgotten and peoples’ courts were put in their place. These ‘courts’ were to find according to law – but only insofar as it accorded with the popular will, and the public interest as identified by the regime. To put it at its lowest in our terms, the criminal law of the Reich was to be applied with equity in favour of the Reich and against the accused if the public interest required it. Again putting it at its lowest, such a notion is anathema to us.
In the case of Russia, the trappings of a police state and the absence of civil rights were in the system put in by the Soviets from the start. The people of Russia have had only fleeting contact with the rule of law or civil rights since that nation came to be known under that name.
We have seen that under the Law of Suspects, an accused person who did beat a charge could still be detained under that law, and that was certainly a course open to the NKVD or Gestapo in the very rare cases where the prosecution simply failed. The whole purpose of the revolutionary or peoples’ tribunals was to stop that kind of accident happening. Civilized legal systems say that it is better that some guilty go free rather than that one innocent person should be imprisoned; the revolutionary regime or police state takes the very opposite view – and the very words ‘innocent’ and ‘guilty’ had very different meanings for those enforcing what purported to be the laws of such regimes.
In The Russian Revolution, Sheilah Fitzpatrick said this:
Suspicion of enemies – in the pay of foreign powers, involved in constant conspiracies to destroy the revolution and inflict misery on the people is a standard feature of the revolutionary mentality that Thomas Carlyle captured vividly in the passage on the Jacobin Terror of 1794…..In normal circumstances, people reject the idea that it is better that ten innocent men perish than that one guilty man go free; in the abnormal circumstances of revolution, they often accept it. Prominence is no guarantee of security in revolutions; rather the contrary. That the Great Purges uncovered so many ‘enemies’ in the guise of revolutionary leaders should come as no surprise to students of the French Revolution.
After all, the French have a saying: Plus ca change, plus c’est la meme chose.
It is not surprising, then, that all Hell broke loose in England when its highest court, then the House of Lords, decided that it was time to reinvest the common law of crime with a kind of equity that would make behaviour that they thought was not in the public interest punishable as a matter of law even though that behaviour had not been declared criminal by the law before then. And all for nothing, as it now seems to us. The case was about contact numbers for call girls in phone books. We are used to massive advertising for anything about sex, but in 1962, some of the Law Lords were so offended by the grossness of this immorality that they decided to resurrect a common law offence of a conspiracy to corrupt public morals. They apparently wanted to reserve some kind of law making power to the judiciary to deal with cases that they thought had improperly slipped through the net.
Putting to one side that the offence found by their Lordships uncomfortably resembles one of those for which Socrates was put to death, a leading jurist of the time, H L A Hart, immediately compared the decision to German statutes of the Nazi period which condemned anyone who was deserving of punishment according to ‘the fundamental conception of a penal law and sound popular feeling.’ It is after all fundamental for us that people can only be dealt with accordingly to law – as it was stated at the relevant time.
The title of the USA Patriot Act is a ten-letter acronym that stands for ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001’. It was passed with alarming speed and very little consideration or dissent after one successful terrorist attack. Some of it sunsetted the other day in a blaze of controversy that followed the actions of a highly placed government officer, Edward Snowden, who illegally released a load of secret files for at least the purpose of embarrassing the government. This change in the law was obviously made in a hurry and in what appeared bona fide to be a crisis, but whether the sunset provisions work is another question. On any view, the US has brought problems on its own head through this law. Guantanamo Bay is another matter altogether, but not now widely seen as a blessing.
The following note comes from a memorandum on the website of the House of Commons Library of January this year.
In recent years there has been an increasing use of powers to deprive people of their British citizenship and withdraw British passport facilities, particularly in respect of those who may be involved in fighting, extremist activity or terrorist training overseas.
Under section 40 of the British Nationality Act 1981 (as amended), an order to deprive a person of their British citizenship can be made if the Home Secretary is satisfied that:
it would be conducive to the public good to deprive the person of their British citizenship status and to do so would not render them stateless; or the person obtained their citizenship status through naturalisation, and it would be conducive to the public good to deprive them of their status because they have engaged in conduct “seriously prejudicial” to the UK’s vital interests, and the Home Secretary has reasonable grounds to believe that they could acquire another nationality; or
the person acquired their citizenship status through naturalisation or registration, and it was obtained by means of fraud, false representation or concealment of any material fact.
In the second and third scenarios, a person may be deprived of their British citizenship even if this would leave them stateless. “Conducive to the public good” means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.
The power to deprive a naturalised person of their citizenship status and leave them vulnerable to statelessness due to “seriously prejudicial” conduct derives from section 66 of the Immigration Act 2014, which came into effect on 28 July 2014. Some commentators have questioned how this controversial power will be applied, and whether it undermines the UK’s international obligations.
The memorandum is not happily expressed, but I suppose that the legislation is not either. If the note is correct, a government minister, without intervention by a court, can act to deprive people of their rights. The phrases ‘conducive to the public interest’ and ‘seriously prejudicial’ are, frankly, frightening. I could not find my way through the statutory maze, but it looks like you might trigger ‘conducive to the public good’ by behaviour that is ‘unacceptable.’ Only Heaven knows what Professor Hart may have made of this kind of law in the days of our lost innocence.
What do we learn from these precedents?
Beware the ruler who says that the law must give way or change to face an emergency because the state is in peril, or one who says that we have to surrender some of our rights before we lose all of them. You do not have look at the monsters of the 20th century. Just look at the tricks of Peisistratus. He got thrown out and he then got back in by a device that Herodotus said ‘was the silliest that I can find on record.’
Beware of a ruler who wants to skip the courts to deal with a marked or branded group within the community. Be especially wary of any such ruler who appears to have personal or political motives for the rule change, or who, for whatever reason, does not appear to understand or respect the system of law that we have inherited. And just smile when they say that this time it’s different, or that they only want the change once and for a short time.
But do not smile if they say that they only mean good and that no ill can come from that. The two greatest explosions of human rights in the history of the world led almost immediately to two of the worst reigns of terror the world has seen.
And try to enlighten those trusting souls who think that this small change will not matter because it is not directed to them but to others who are, frankly, not all that attractive, and because in any event people of sense and goodwill will be able to rein the ruler back in if they feel like it. There are still people alive who can recall making that terrible mistake with some seriously bad rulers, and at a cost of human misery that is beyond measure.
Here are some basic facts of political life. First, there is a world of difference between punishing people found guilty of a crime; distinguishing in our treatment of people because we believe that they have some different characteristic that merits such a legal distinction; and depriving people of their rights not for what they have done, but because of what we fear that they might do. Governments who seek to go outside the machinery put in place to deal with the first category in order to issue some administrative decree in the second or third, are to be most closely watched. It is not easy to think of a good precedent.
Secondly, when you give rights away to the government, or give them more powers, it is very hard later to get back to where you were. It simply goes against the grain for any ruler to give back powers that they have wrested from their people. At the end of his time as dictator, Cincinnatus went back to the plough on the farm – so they say. That was centuries before the birth of Christ. Name one who has done that since. We all know that power corrupts, and governments develop a kind of mission creep about the aggregation of power. Just look at FIFA, the IOOC, the BCCI, and almost every nation in Africa or what was the USSR.
Thirdly, politicians are not always at their candid best when they are seeking more powers, and emergencies have a bad habit of becoming permanent. The best example is probably the emergency measure adopted by the British parliament under the leadership of William Pitt in the nation-threatening Napoleonic Wars. The measure was widely seen as an unprecedented outrage at the time by people of all political colours, but it was reluctantly adopted as an emergency measure by a nation facing a threat that would only be surpassed by that posed by Hitler. The emergency measure was a new tax. It was called income tax.
Finally, since we are talking of putting power to deal with peoples’ rights in the executive (the government and its ministers) rather than with the judiciary (Her Majesty’s judges), we need to bear one thing steadily in mind. By and large people in this country trust and respect their judges. That is emphatically not the case with any politicians who will form the relevant government or ministry – any politicians of either colour, and at any level – and the people who know this best of all are the politicians. They will therefore be asking us to take our trust and put it where we are least comfortable. Why would they want us to do that?
In 1955, the man most Australian lawyers consider to have had the greatest judicial mind that this country has produced, Sir Owen Dixon, delivered a paper at Yale University called ‘Concerning judicial method.’ It is thought by some people to be too cautious and old fashioned, but in my view it contains as good a statement of the essence of the common law tradition as can be found. His Honour was concerned with what he saw as the dangerous ambition or state of mind of innovative judges – and there was no great secret about his main target. He was directing his attention at judges who chose to depart from a long accepted principle and ‘deliberately to abandon the principle in the name of justice or of social necessity or of social convenience.’ In my view, the observations of Sir Owen apply with as much force to politicians, in either parliament or the executive, who seek to abandon long accepted principle in the name of justice or social necessity.
Sir Owen referred to an observation of Aristotle that ‘the effort to be wiser than the laws is what is prohibited by the codes that are extolled.’ (Immediately before that remark, Aristotle had said that ‘not to use the laws is as bad as to have no laws at all.’) The reason is clear enough – the first object of the rule of law is to put everyone under the law, including the judges, and not let them flit in and out as they please.
His Honour concluded his address with a warning to judges that in my view can be applied word for word to such of our politicians who may now want to depart from long established principle in the name of some newly felt social or political need. The warning would have even more weight for any politician seeking to tamper with the fabric of our legal rights in return for short term political gain.
The demands made in the name of justice must not be arbitrary or fanciful. They must proceed, not from political or sociological propensities, but from deeper, more ordered, more philosophical and perhaps more enduring modes of justice. Impatience at the pace with which legal developments proceed must be restrained because of graver issues. For if the alternative to the judicial administration of the law according to a received technique and by the use of logical faculties is the abrupt change of conceptions according to personal standards or theories of justice and convenience which the judge sets up, then the Anglo-American system would seem to be placed at risk. The better judges would be set adrift with neither moorings nor chart. The courts would come to exercise an unregulated authority over the fate of men and their affairs which would leave our system indistinguishable from the systems which we least admire.
You do not see such ideas expressed so deeply now, and we are worse off as a result.