Lessons of history

Defending criticism of the government for not sufficiently supporting the Human Rights Act, the Justice Secretary Jack Straw blamed the atrocity of 9/11 in New York in 2001 for shifting the political climate and public opinion against the protection of traditional freedoms. This is an excuse which avoids government responsibility.

In truth he revealed how respect for the rule of law and the rights of the individual, symbolised in Magna Carta, can be undermined by overhasty and disproportionate responses to threats of violence, whether real or imagined.
When Parliament fails to protect those rights we look to the courts to exercise a restraining influence even though the doctrine of Parliamentary sovereignty allows a government in control of Parliament to reject judicial opinion when it chooses to do so. The Human Rights Act does not empower the courts to set aside a statute even when it is declared incompatible with the European Convention on Human Rights.

We are fortunate that our current body of judges is generally committed to upholding fundamental rights as firmly as possible in the face of criticism from sections of the media and sometimes from the government itself. It has not always been so and we need to learn from history.

Freedom of expression

In the 1790s judges who were too anxious to please a nervous government nearly succeeded in destroying the precious right to freedom of expression. At that time the French Revolution was seen as a looming menace. Its supporters in Britain were perceived by many as seeking to replicate its terrors here. Most of those supporters intended to promote political reform by peaceful means but there were judges as well as politicians whose fear of violence caused them to overreact.

Prominent among them was Mr Justice Ashurst. In a charge to a grand jury in 1792 he propounded a view of the law governing advocacy of political reform which, if it had been generally accepted, would have made the UK a totalitarian state. Of the French Revolution he said: “One might have naturally expected that doctrines so absurd, so nonsensical, and so pernicious, would have been treated with the contempt they deserve, and would have sunk into oblivion. But when one not only finds such tenets  held, but societies of men formed, who meet with the express purpose of  disseminating such doctrines…it is time for every sober man…to endeavour to crush such unconstitutional and pernicious doctrines.” He invited the magistrates to “be diligent in exerting yourselves to bring to justice all who have been guilty of a breach of the law, by publishing tenets of that pernicious nature”. In short, seeking parliamentary reform, even peacefully, was the crime of sedition, or even treason.

Grand juries consisted of 23 local citizens empowered to indict those suspected of crime, a function now performed by the magistracy. It was the judge’s responsibility to direct them to the relevant legal principles. Ashurst was not regarded as especially reactionary. On the contrary, he was described by a contemporary as “a man of liberal education and enlarged notions”.

Ashurst’s charge achieved immense popularity when it was taken up by conservative organisations, such as the Society for Preserving Liberty and Property against Republicans and Levellers. The General Post Office reported that it had been deluged with thousands of copies for distribution widely across the country. Here was authoritative judicial endorsement of the campaign to suppress the expression of democratic sentiments, though, of course, it was dressed up in the attractive guise of promoting public safety, which today we would call national security.

Free speech in the balance

Free speech was in the balance, threatened by both government and judiciary. The movement for reform of parliament and the enlargement of the franchise continued to grow but the government was emboldened by judicial support. Ashurst’s argument was challenged by Jeremy Bentham in a powerful pamphlet “Truth versus Ashurst or Law as it is”. A convention held by radicals in Edinburgh to promote democratic reform led to a number of charges of sedition and a trial before the High Court presided over by the notoriously brutal Braxfield. The Scottish Martyrs, as the accused became known, were sentenced to transportation to Australia.

When a similar convention was planned for London, there were further arrests, this time followed by charges of treason. The four most prominent accused were: Thomas Hardy, a shoemaker of Piccadilly, who was secretary of the main radical movement, the London Corresponding Society; John Horne Tooke, a clergyman of the Church of England and later a member of parliament; Thomas Holcroft, a popular playwright; and John Thelwall, the leading orator of the LCS, who later in life became the founder of the science of elocution. The charge to the Grand Jury expressed a similar view of the law to that advanced by Ashurst J two years earlier. This time another literary lion, William Godwin, soon to be even more famous as the father of Mary Shelley, came to the defence of free speech. His pamphlet “Cursory Strictures on the Charge delivered by Lord Chief Justice Eyre” was published in full in the Morning Chronicle three weeks after the charge was delivered. It inspired a popular outcry in support of the accused and when the first trial took place the great advocate Thomas Erskine adopted Godwin’s arguments. This time the first three accused were acquitted by the jury, notwithstanding a summing up by the judge in each case strongly favouring conviction. The prosecution then abandoned the remaining indictments.

Godwin’s initiative and Erskine’s eloquence undoubtedly contributed to the result but it was the jury which decided it. The lesson is that the preservation of our liberties is a continuing struggle in which the combined efforts of lawyers, writers, and above all the public, as represented by the jury and otherwise, must be vigorously engaged.

Geoffrey Bindman