The Outgoing Tide of Freedom

John Mortimer’s memorable fictional creation Rumpole of the Bailey loved to quote the great lines of English poetry. One of Rumpole’s favourite recited retellings was Wordsworth’s poem that begins “It is not to be thought of that the flood of British freedom, which, to the open sea of the world’s praise, from dark antiquity hath flowed ‘with pomp of waters, unwithstood’… should perish.” And that claim was still true when Mortimer was writing about Rumpole in the late 1970s and early 1980s. Alas, it is not true today. Today England has a patent and obvious two tier justice regime. One rule and set of punishments, say, for those protesting Pakistani grooming and rape gangs (hint: severe). Another rule for those protesting Israel’s Gaza war operations (hint: barely noticeable). Ditto those against the transgender lobby’s agenda and those in favour. Then there are the insidious non-crime hate incidents reports that the police spend more time on than, you know, trying to solve burglaries and carjackings and phone thefts and anything involving real crime. And it sure appears that recipients of these Orwellian non-crime hate incidents notices are disproportionately those voicing doubts about the mass immigration multiculturalism agenda of the last few decades which brings with it the need for speech suppression because of how poorly it’s playing out. And these non-crime abomination thingies (that’s a legal term of art) go on your record though they’re not criminal offences. Again, we all know they are doled out with as much balance and disinterestedness as the BBC’s and our ABC’s political coverage of President Trump. As a dyed-in-the-wool Anglophile it deeply depresses me to say that the list of inroads in Britain into freedom and free speech goes on and on, these being tips of the iceberg. (As a related digression, thank God for the Free Speech Union set up by Toby Young which is doing stellar work and actually having some success in pushing back against this insidious speech-infringing lefty agenda – and by lefty I most certainly include the main nominally right-of-centre Tories in Britain and the Liberals here in Australia because many of these speech-emasculating laws are first mooted and later supported by those conservative-in-name-only parties. There is hope in the UK because it is likely that Reform will win the next election and systematically repeal these laws that fly in the face of the John Stuart Mill ideal of why free speech is needed and valuable. But here in Australia?)

So on to related news. The British Justice Secretary and Deputy Labour Prime Minister David Lammy has announced that he wants to get rid of jury trials for all but the most serious criminal offences. This is the same man who only a few years ago said that jury trials were fundamental to democracy. But once in office, well, not so much apparently. Now I have no idea whether the loud and vociferous pushback he is receiving – even from some of those in a very very Left-leaning legal caste – will see him and his boss Two-Tier-Keir backtrack on this horrible proposal. Let’s hope so. I do know, though, that jury trials are one of the two great legal gifts that Britain gave the world. Put bluntly, the two most notable contributions or inheritances from the English common law to the democratic world would be cross-examination and jury trials, neither of which were intrinsic to or found in the civil law systems that flowed out of Roman law. And dating back to law school I have always been a big fan of jury trials, the need to get twelve of your fellow citizens to agree that you are guilty beyond reasonable doubt before you can be convicted. I know that many a lawyer or judge (not all) has a sort of condescending attitude towards juries, with their lack of legal knowledge, thinking them inefficient vehicles. But Lammy was right the first time. Juries are a form of democratic protection. I even support jury nullification, which happens when a jury actually thinks the accused is guilty but nevertheless refuses to convict on moral grounds or because it disagrees with a government’s law.

Here’s the thing. The administrative state and one-sided bureaucratic overreach are serious problems in today’s world. Add to that the undeniable fact and danger that lawyers and judges lean heavily to the progressive Left politically. If you don’t believe me then just look at political contributions in the US, which is public information there and which shows lawyers to be a standard deviation or more to the left of the median voter. Or consider the hugely lopsided support for The Voice by Australia’s legal caste and judiciary, massively out of line with the view of the voters. Or look at the way the UK’s Supreme Court in the two big Brexit Miller cases unanimously overturned centuries of precedent, first on the reach of the prerogative power and then on proroguing Parliament, and thereby delivered temporary victories to the Remainer forces trying to stop Brexit. (You can decide the relevance of the fact that all 11 of the judges in both separate cases were known or suspected of being Remainers.) Look, no one remotely disinterested can deny this political skew of the lawyerly caste.

As a result, and speaking personally, there is no way I would ever trust my fate to what odds say would be a progressive lefty judge. Give me a jury any day. Give me 12 fellow citizens, be it a criminal charge or a defamation case where the plaintiff can opt for a jury. In fact, back at the time the call was made, I said to legal friends that I thought the Bruce Lehrmann legal team was making a terrible mistake opting for a judge-alone defamation trial rather than a jury trial. Have you been to a party with progressive lefty lawyers and judges? And reading the evidence from that trial and the judge’s judgment, I would say there is every chance a jury would have decided differently than the way the judge did. Who knows as that ship has well and truly sailed.

So a last word on the outward flood of freedom. You see it’s not just happening in Britain. Australia is also witnessing big inroads into free speech. A difference is that at least the Brits have hope in the form of a future Reform government. Here with our preferential voting system, a protection racket for the two established parties, we’ve got the Libs. And many of the speech-inhibiting moves here were brought to us by the Liberal Party disgracefully. Think, too, of former PM Morrison dissing the importance of free speech (and wrongly claiming it never created a job) and of the Liberal Party being the ones who appointed our e-Safety Commissioner and supported these Orwellian laws. What’s coming later this month is digital ID, with all the dangers that brings with it in a world where the bureaucracy is not neutral. Never ever support a law that you aren’t confident your political opponents will not be able to weaponise against you. It’s a simple test and the Libs fail it every time. The open sea is beckoning to our freedoms. We need to fight back.

Dr James Allan is the Garrick Professor of Law at Queensland University. This article was first published in Spectator Australia.