The Observer (2022-01-09)

The Observer

40 09.01.22 Comment & Analysis

Established in 1791 Issue No 12006

Tories imperil

rule of law by

attack on verdict

There is a plaque in the Old Bailey

that commemorates the “courage and endurance”

of Edward Bushell and 11 other jurors. In 1670, they

were locked up by a judge without food and water for

two days because they refused to change their not

guilty verdict in the case of two Quakers who had been

charged with unlawful assembly. Bushell petitioned the

courts and the chief justice at the time, Sir John Vaughan ,

ruled that a jury could not be punished on account of the

verdict it returned. In doing so, he established in English

law the principle of jury independence.

That principle means there is no such thing as an

“incorrect” jury acquittal: juries have an absolute right

to acquit a defendant in a criminal trial regardless of the

legal arguments advanced in a case. Yet in the case of

the not guilty verdict returned by the jury in the Colston

four case, senior Conservative politicians, including

the attorney general, the principal legal adviser to the

Crown and the head of the Bar in England and Wales,

have weighed in with explicit or implied criticism of the

verdict, a fundamental undermining of the rule of law.

The Colston four were charged with criminal damage

for their role in toppling the statue of the slave trader

Edward Colston in Bristol in 2020. Colston made his

fortune by traffi cking 80,000 men, women and children

from Africa to America in the 17th century; one in fi ve

died en route. Bristol residents have, to little avail, long

petitioned for their city to revisit the grossly offensive

way he is honoured , including through this statue,

which made no mention of his terrible legacy.

The defendants’ acquittal by a jury should be the last

word in this case. There were four potential defences

put forward by lawyers for the four protesters; even if

the jury found none convincing, they were still within

their right to return a verdict of not guilty. But Tory

politicians , including the prime minister and the home

secretary , have picked a culture war with anti-racism

protesters and well before the trial made their opinions

known. Since the verdict, they have not been able to

resist implicitly expressing opinions on the lawfulness

of its actions, thus undermining the rule of law.

Robert Jenrick, the former communities secretary,

suggested that the jury verdict itself undermined

the rule of law, thus committing the very deed he

wrongly accuses them of. Robert Buckland , the former

justice secretary, himself a lawyer, called the verdict

“ perverse ”. The transport secretary, Grant Shapps, said

the government would fi x the “loopholes ” that allowed

for the jury verdict, without specifying whether he was

questioning the very principle of jury independence.

By far the worst intervention, however, came from

the attorney general, Suella Braverman , who announced

via social media that the Colston verdict is causing

confusion and so she is considering referring it to the

court of appeal to clarify the law. A referral to the court

of appeal is within her rights as attorney general and,

as she stated, the court of appeal cannot overturn the

jury verdict. However, there is absolutely no justifi cation

for her announcing that she is considering seeking a

clarifi cation on the law, without also setting out exactly

what point of law is unclear. This is a gross politicisation

and serves no purpose other than allowing her to

inappropriately express a view on the jury’s verdict.

Braverman’s announcement is only the latest sign of a

Tory government only too willing to trash the rule of law

for its own political ends. The examples abound, most

memorably, Boris Johnson’s attempted prorogation of

parliament in July 2019 , ruled unlawful by the supreme

court. Johnson said he disagreed with the supreme

court, a nonsensical position given the highest court

in the land does not opine on the law, it states how the

law applies. Another cabinet minister, Jacob Rees-Mogg,

accused the supreme court of a “ constitutional coup ”.

In 2016, Liz Truss while lord chancellor failed to

defend the independent judiciary against dangerously

hostile attacks from the press. In November 2020, the

Home Offi ce released a video that attacked “ activist

lawyers ” for representing clients against the state, a role

without which the justice system would not deserve its

name. The government introduced the internal market

bill in late 2020, which ministers readily conceded

broke international law. And in recent years there have

been repeated political attacks on judicial review – a

vital route through which citizens can challenge the

lawfulness of government actions – that give the

impression of a government that wants to avoid all

consequences of acting unlawfully. This rubbishes the

core principle that the law applies equally to us all.

The uncodifi ed British constitution means that we as

citizens rely on our politicians to abide by an unwritten

honour code: that they will act to uphold the rule of

law and respect the seven principles of public life.

There may be advantages to a fl exible constitution, but

it is vulnerable to battering by a populist government

such as Johnson’s. He is a prime minister with little

regard for standards in public life or the rule of law. The

damage Johnson is doing to fundamental constitutional

principles that have evolved over centuries to protect

citizens from the unlawful excesses of the state will last

long after he leaves offi ce.

Capitol Hill

The 6 January

insurrection , when supporters of

former US president Donald Trump

stormed Capitol Hill, is widely

viewed as a seminal moment in

the history of US democracy. Never

before had the modern nation

witnessed such an organised,

violent attempt to overthrow the

elected government. Never before,

not even at the height of the Civil

War, had the Confederate fl ag fl own

over the halls of Congress.

Yet last week, as the US marked

the fi rst anniversary of the

thwarted insurrection, another

signifi cant turning point was

reached. President Joe Biden, the

lawful winner of the 2020 election ,

dropped what some call his Mr Nice

Guy act. With gloves off, Biden came

out swinging. It was about time.

Since taking offi ce , Biden has

deliberately ignored Trump. He has

rarely mentioned his predecessor

by name. He has refused to engage

with Trump’s insults, lies and

unceasing propagation of the “big

lie” – that Democrats stole the

2020 vote. Instead, Biden sought to

reunite a divided, fractious nation,

appealing to what he called our

“better selves” and looking to the

future, not the past.

It didn’t work. That is not to say

it was not worth trying, nor that the

effort should be discontinued. But in

the intervening 12 months, Trump ,

egged on by cynical, unprincipled

Republicans such as House minority

leader Kevin McCarthy and far-right

disruptors such as Steve Bannon,

has not only not faded from

view but, rather, he has emerged,

strengthened, as Republican king-

maker and his party’s leading 2024

presidential contender.

Trump’s bottomless mendacity,

lacking any factual, legal or moral

basis and fl ying in the face of

numerous court judgments, has

nevertheless persuaded a majority

of Republican voters that Biden was

facts” has had a free run for too

long. To be defeated and debunked,

it must be publicly and robustly

challenged. Legal remedies, soft-

pedalled until now by the justice

department, must be pursued.

“The legal path to investigate the

leaders of the coup attempt is clear.

The criminal code prohibits inciting

an insurrection or ‘giving aid or

comfort’ to those who do, as well

as conspiracy to forcibly ‘prevent,

hinder or delay the execution

of any law’,” veteran Harvard

constitutional law expert Laurence

Tribe wrote recently. It’s a widely

held opinion.

The many documented actions of

Trump and his circle in attempting

to overturn the 2020 vote provide

numerous grounds for criminal

investigation and prosecution. Why

is Merrick Garland , the attorney

general, still dragging his feet?

Biden can righteously rage. But

the best antidote to toxic Trump’s

dangerously lawless spree , and fears

of civil war, is the law itself. Take

him down – before it’s too late.

Kings Place,

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London N1 9GU

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020 3353 2000

email editor@

observer.co.uk

Edward Colston

Biden is right

to rage, but

Trump’s lies

require criminal

investigation

not legitimately elected. His poison

corrodes America’s governing

institutions and incites civil strife.

Trump embodies a clear danger to

US national security, stability and

democracy. He must be stopped.

Biden’s 6 January speech

appeared to unleash a new strategy

to do just that. Trump, he said, was

“holding a dagger” at the throat of

American democracy. His “web of

lies” could no longer be tolerated.

Trump “rallied the mob to attack”,

then did nothing to stop the ensuing

lethal violence, Biden fumed.

The president’s sudden switch to

direct confrontation entails obvious

dangers. It plays to Trump’s agenda

and ego, making him the centre

of attention. The shift may also be

indicative of political weakness.

Biden’s approval ratings are low, his

legislative agenda has stalled, the

Democrats in Congress are split and

the party is widely expected to lose

Congress in November’s elections.

Yet Biden really had no choice but

to go on the offensive. Trump and

Trumpism’s world of “ alternative