The History of England

from Celts through 20th century

ENGLISH LAW AND THE LEGAL SYSTEM

Category: Politics

It is often said that English law expresses in a variety of ways the genius of the English people and is superior to the law of most other countries. There is no doubt that Eng­lish law and the English judicial system do contain many admirable rules which protect the individual against arbitrary action by the police and the government. But this ap­proach nevertheless conceals the real nature and purpose of English law. It has been made by judges and Parliaments , who had the same economic, political and moral outlook as the ruling class which they have represented, and like the law in any other country it is not the expression of princi­ples of “natural justice” derived from the minds of judges and legislators but reflects the established property relations.

Thus the English law of property protects the right of the capitalists to the private ownership of the means of produc­tion, and the right of the landlords to the private ownership of the land. The law of contract provides the necessary con­ditions for the carrying on of capitalist trading relations, the law of master and servant protects the right of the capi­talist employer to hire workers for wages and to sack them when they are no longer required, and company law regu­lates the complex relations between companies and their share­holders. There are, of course, some branches of the law which are not so directly connected with property relations, such as the law of marriage and divorce and crimin­al law; but even here it will be found on analysis that these laws broadly reflect the social and moral outlook of a rul­ing class which owes its position to the private ownership of capital. In short, the law ofEnglanddefends capitalist relations of production and the political and social condi­tions which are based on them.

It would be a grievous over-simplification, however, to suggest that the law is a direct, unmitigated expression of capitalist interests. A great deal of modern law is directly or indirectly due to the influence of the working-class movement, which has affected the outlook of the judges just as it has influenced the character of parliamentary legisla­tion.

But the growth of English law began many centuries be­fore the working class emerged on to the political scene as a powerful force. It is one of the principal characteristics of English law that it can trace a continuous development from the early Middle Ages, when the law was the expression of feudal property relations. Even to this day English law retains some of the features of feudal law. However, funda­mental transformation in the law took place with the gradual substitution of capitalist relations of production for feudal relations, and with the political victory of the capitalist class in the English Revolution of 1640—49. With their char­acteristic ability to make fundamental changes without the appearance of change, the English bourgeoisie adapted the old feudal laws to serve their own purposes, just as they trans­formed the content of other feudal institutions, such as Par­liament and the monarchy, while preserving the ancient forms.

The English legal system possesses one remarkable fea­ture — derived from the days of feudalism — which distin­guishes it from the legal systems of nearly all other coun­tries of the world: an important part of the law has never been considered, debated or approved by any Parliament. Many of the laws ofEnglandare contained, not in Parlia­mentary statutes, but in the reports of cases decided by judges of the High Court, Court of Appeal and House of Lords.

From the sixteenth century it became accepted that a decided case constituted an authoritative “precedent”, meaning that when one judge had decided a point of law, any judge who is subsequently confronted with a similar set of facts must apply the law declared in the earlier judgment.

The majority of cases are decided by judges of the High Court — divided into the Queen’s Bench Division, Chancery Division, and Probate, Divorce and Admiralty Division. From a decision of a judge of the High Court an appeal lies to the Court of Appeal, and from there to the House of Lords (in its judicial capacity the House of Lords consists of nine Lords of Appeal, though not more than five normally sit to decide any particular case). A judge is normally bound to follow the decision of a court equal to or superior to him­self; thus the Court of Appeal is bound to follow its own earlier decisions and those of the House of Lords, but is not bound by decisions of the High Court; and so forth.

The vast tangled mass of reported cases stretching back to the days of Elizabeth I and even beyond, each being the authority for a single point of law, and some being incon­sistent with others, is the famous English “common law”.

Origirally the judges were responsible for declaring and developing the greater part of the law; nowadays, however, most of the new law is made in the form of statutes by Par­liament, and the main task of the judges is to interpret the statute law.

The existence of a large number of precedents on most points of law enables the judges to pick and choose with considerable freedom the precedents which they consider relevant to a case which comes before them. Thus if a change in the law is needed in the interests of employers, a way to make it can often be found; but if a change is proposed in the interests of the workers it can be refused.

It is an established principle of the British Constitution ever since 1701 that the judges are independent of the exe­cutive government. In that year the Act of Settlement laid down that judges should always be appointed “during good behaviour” and could not be removed except by a resolu­tion of both Houses of Parliament. In practice no judge has ever been dismissed since then.

But the significance of the independence of the judicia­ry can only be properly estimated by taking into account the natural tendency for the judges to share the opinions and emotions of the ruling class. It is the government, after all, which appoints all the judges in the first place. Lord Chan­cellor, as a member of the cabinet and responsible for advis­ing the monarch on the appointment of new judges, is in effect the political head of the entire judiciary. However immune the judges may be from interference by the govern­ment of the day, they cannot be separated from the State apparatus of which they form an integral part. It is not surprising to find that the High Court judges are drawn mainly from ruling-class circles, and the close identity of outlook between the High Court judges and the capitalist class is clearly reflected in the common law which they have developed.

Second only in importance to the High Court judges are the thousands of unpaid Justices of the Peace, or lay magistrates, who sit in the “courts of summary jurisdiction” which, owing to their close assosiation with the police, have become known as Police Courts. This system of unpaid amateur mag­istrates has a continuous history right back to the days of feudalism in the fourteenth century, when Justices of the Peace were first appointed by the king, largely to assist in suppressing the rebellious peasantry. Dealing nowadays with approximately 96 per cent of all criminal offences, and with a great variety of other matters, such as the licensing of public houses, recovery by local authorities of rates, and all kinds of matrimonial proceedings short of divorce, these are courts which concern the working people most closely.

Magistrates are appointed by the Lord Chancellor. In view of the type of magistrate appointed, it is not surprising to find a close relationship between the magistrates and the police. The average bench feels it to be its duty to support the police and, where evidence is conflicting, is more likely to believe the police than the defendant. During a strike, demonstration or any other kind of mass action which in­spires fear in the hearts of the ruling class, the police can do no wrong in the eyes of the great majority of magistrates.

In the course of history the British people have gained a number of safeguards which circumscribe in important ways the powers of the judiciary and of the police. Two of these safeguards, the writ of Habeas Corpus and the jury system, have become especially celebrated.

The writ of Habeas Corpus is a legacy from the days when civil liberties were enlarged through the progressive struggle of the youthful capitalist class against the feudal state and against feudal counter-revolution.

Habeas Corpus (Latin, meaning “You have the body”) is a writ (that is, a precept in writing, couched in the form of a letter, running in the name of the monarch, issuing from a court) which has for its obiect to bring a party before a court or judge. It is directed to the person detaining another, and commanding him to produce the body of the person detained, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the judge or court award­ing the writ shall consider in that behalf.

Application for the writ is made to a High Court judge. If one judge refuses the writ, application can be made suc­cessively to all the other judges. The result is that the writ of Habeas Corpus, reinforced by the laws preventing long delay between arrest and trial and prohibiting the fixing of excessive bail, amounts essentially to the right to a speedy public trial before imprisonment. The writ gives no protec­tion against unjust laws and unfair trials. Its sphere of op­eration is purely procedural, but to say this is not to detract from its significance, for the protection of civil liberty is very much a matter of procedure.

Habeas Corpus is such a valuable safeguard, indeed, that it has not been immune from interference. It was suspended during popular uprisings in the eighteenth century, during the American War of Independence, during the growth of the radical and working-class movement in 1794—96 and again in 1817. The suspension of Habeas Corpus was a weapon which was used repeatedly against the Irish people whenIrelandwas an integral part ofBritain. The right to Habeas Corpus was suspended during the liberation move­ment in some colonies in 1947 and after. It was suspended during both world wars. Although it has not been suspended inEngland,WalesandScotlandin time of peace since 1817, the record of British government shows that, faced with what they would consider to be an “emergency”, it would again be in danger of suspension at home.

The other safeguard is the jury system. A jury is a body of persons (normally twelve in number) temporarily selected from the citizens of a particular district to inquire of certain matters of fact and declare the truth upon evidence to be laid before them.

The most undemocratic feature of the jury system has always been the property qualification — or more correctly, the rating qualification. A juror must be a registered elec­tor between the ages of 21 and 60 and must also be the rated occupier of premises assessed at not less than «£30 inLondonand «£20 in other parts ofEnglandandWales. In the past this excluded the greater part of the working class, but the sharp rise in rateable values has now brought many work­ing-class houses above the minimum qualifying figure. But the great majority of women are still excluded from jury service, for only one person can be qualified as the rated occupier of each house or flat, and this is normally the hus­band. As a judge of the High Court Sir Patrick Devlin, has said: “The jury is not really representative of the nation as a whole. It is predominantly male, middle-aged, middle- minded and middle-class.”

Jurors are picked in secret by the sheriff or his officer, and there is no legal safeguard to ensure that they are genu­inely chosen at random.

The judge plays a vital part in the English system of trial by jury. He controls the jury in a variety of ways, and above all he can exercise great influence when he sums up the evidence immediately before the jury retires to consider its verdict.

During the greater part of their history juries have not been distinguished for their independence and they have dutifully convicted those whom the government of the day wished them to convict. But there have been times when progressive causes have won the sympathy of the class from whom jurors have been drawn, and then the jury has acted as a safeguard against oppression.

Juries have sometimes defied the prosecution at political trials. Thus, when the trial of Tom Mann and Harry Pollitt took place atSwanseain1932, inthe midst of intense agi­tation and protest, on a charge of sedition arising out of a hunger march of the unemployed, they were acquitted by the jury.

Habeas Corpus and trial by jury are vital safeguards of personal liberty, but they operate essentially within the sphere of procedure. What, then, is the substance of the law in relation to freedom of speech, freedom of the press, the right of assembly and other civil liberties? The fundamental rule of English law is that a person may do anything which is not prohibited by law. He is therefore free to speak his mind so long as he does not say anything which is seditious, or is likely to cause disaffection in the armed forces, or is likely to lead to a breach of the peace, or offends against the law of slander.

Consider the ancient offence of sedition. It is comprised under several different headings, including the endeavour:

“to create discontent or disaffection”,

“to bring the Government and the Constitution into hatred and contempt”,

“to promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects.”

Sedition has never been defined by statute, but is a vague and elastic common law offence which was elaborated by the judges in the past. Any criticism of the government from a mildly socialist point of view would appear to fall inevita­bly under the definition of sedition. But such criticism is not automatically seditious. So long as criticism is abstract and academic, so long as it has no serious tendency to move masses of people into action against the “Government and the Constitution”, it is free. Otherwise it becomes seditious and illegal. The value of the law of sedition to a reactionary government was well illustrated when the Conservative gov­ernment of 1925, preparing for the general strike which was expected in the following year, decided that twelve of the most prominent leaders of the Communist Party should be removed from political activity for the time being. The twelve leaders were suddenly arrested in October 1925 and tried before a jury on the charge of sedition. They were found guilty and sentenced to imprisonment, which effectively removed some of them from the scene of action during the fateful days of May 1926.

Another remarkable and ancient law is the Justices of the Peace Act, 1361, which can be used to imprison a person who has committed no crime at all. Under this Act a person may be required by a magistrate to give security to be of good behaviour on the ground that it is suspected that he may be going to cause a breach of the peace. If he refuses he can be sent to prison. In 1932 Tom Mann was imprisoned under the Act two days before an unemployed demonstration was due to take place, and in 1952 it was used to send Mrs Pat Seares to prison for protesting in aLondoncinema against the film “Rommel-Desert Fox” and against the rearmament ofGermany.

The comparative economic and political stability which prevailed in the second half of the nineteenth century gave rise to conditions in which democratic rights were on the whole steadily enlarged and extended. But the critical posi­tion of British capitalism during and after the First World War led to a significant change in the attitude of ruling circles to the traditional liberties of the people. Since that time these liberties have been directly attacked and indirectly under­mined in a great variety of ways; new offences have been creat­ed, old laws have been strengthened, the powers of the or­dinary police have been increased and the influence of the secret police has extended.

Immediately after the outbreak of the First World War Parliament passed the Defence of the Realm Act, 1914, (D.O.R.A.) giving the government power to make regula­tions forbidding almost any activity the government consid­ered harmful. The Act was extensively used against mili­tant workers’ leaders and pacifists.

When the war came to an end D.O.R.A. had to be repealed, but the tremendous increase in the power and militancy of the labour movement, reflected in such great national strikes as the railway strike of 1919 and the miners’ strike of 1920, the Hands Off Russia movement and the founda­tion of the British Communist Party in the same year, led the government to obtain fresh, powers to curtail civil liberties. By far the most important of these measures was the Emer­gency Powers Act, 1920, under which the government can take powers wide enough to suppress by regulation nearly all civil liberties. Under the regulations in force in 1926 it was an offence punishable by imprisonment to “do any act calculated to cause disaffection amongst the civilian popula­tion”. The police was empowered to enter any place suspected of being used for printing, producing, publishing or distribute ing any document calculated or likely to cause disaffection among the police, troops, firemen or civilian popula­tion.

The attack on civil liberties was renewed in a rather different form after the world slump of 1929—32 had further deepened the crisis of British capitalism. The Incitement to Disaffection Act, 1934—designed as a modern supplement to the Incitement to Mutiny Act, 1797—makes it an offence for any person to seduce any member of the armed forces from his duty or allegiance, and then goes on to provide that if any person is in possession of a document the dissemina­tion of which might amount to incitement to disaffection among the forces, he is guilty of an offence. Thus, the Act makes the mere possession of a document a criminal offence, quite apart from whether it is published or whether any wrong use is made of it at all.

Even more serious, in view of the use subsequently made of it, was the Public Order Act, 1936, ostensibly passed for the laudable purpose of stopping the wearing of political uniforms and other practices tending towards the militarisa­tion of politics which were at that time being adopted by the fascist blackshirt movement led by Oswald Mosley. In reali­ty, however, the Act went far beyond this. Police authorities were given powers, such as they had never possessed before, to prohibit for a period of three months all processions or a par­ticular class of processions in their area. The Act has been used on various occasions against working-class political activities.

Economic and political conditions since the end of the Second World War have given rise to a different kind of threat to civil liberty, which has been subjected to an in­direct process of undermining rather than a direct attack; ostensibly aimed against Communists and their sympa­thisers it has in fact affected far wider circles within the la­bour movement. There has been a growing tendency for pri­vate owners and local authorities to refuse the use of their halls to the Communist Party and other left-wing organi­sations. The ancient right of freedom of travel into and out of the realm, the boast of British statesmen for centuries, has been the subject of widespread interference. In 1950 large numbers of foreign delegates were prevented from entering the country to attend the Sheffield Peace Congress, and since then many distinguished persons from abroad, including scientists, lawyers and artists, have on various occasions been denied the right of entry at British ports.

Most dangerous of all is the attack on freedom of thought through victimisation and the threat of victimisation. The right of every employer to sack an employee without giving any reason is one of the basic rights of employers which is secured to them by English law. Victimisation on account of trade union or political activities has, of course, long been the practice of British employers, and many militant trade- unionists have suffered under the practice of blacklisting adopted in some industries. It is this which constitutes one of the fundamental limitations on freedom of thought and speech inherent in a capitalist system, however much those rights may be formally recognised. It is all the more dan­gerous because its operation is silent and insidious; the fear of dismissal and, in the case of teachers, scientists and others, the apprehension that prospects of promotion may be pre­judiced, is often as effective as actual dismissal.

The launching of the civil service “purge” in 1948 by the Labour government was therefore an attack on civil liberties with far-reaching potentialities. The civil ser­vice “security test”, as extended by the Conservative gov­ernment in 1957, involves an enquiry into the private beliefs and friendships of every civil servant engaged on work deemed to be vital to the security of the state, in order to discover, not only if he is or has recently been a member of the Communist Party, but also if “he is or has recently been sympathetic to Communism, associated with Commun­ists or Communist sympathisers, or is susceptible to Com­munist pressure.” This has led inevitably to a great increase in the influence of the secret police, for it is their opinion on the political outlook of an individual that is decisive. Po­litical discrimination has spread from the civil service to private firms working on secret armament contracts for the government, and to the field of teaching.

It is only too clear that the British ruling class will not hesitate to use the power, which the law gives them, to re­strict civil liberty whenever they feel that their political pow­er is seriously threatened in one way or another, and the more alarmed they become, the fiercer will be their attack. The force of tradition and of public opinion are important factors which help to deter the government to some extent; in the last resort, since public opinion must be organised to be effective, civil liberty can only be defended by the vigi­lance, determination and strength of the labour movement.

From TheBritishStateby J. Har­vey and K. Hood; Black’s Law Dictionary

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