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13 November 2021

Fake Law

Tag(s): Current Affairs, Law
When I was growing up it was my firm intention to read Law at university and become a barrister. I think I was inspired by TV programmes like Perry Mason and those based on the works by Henry Cecil like Brothers in Law. I read several books about real cases and also researched which were the best subjects to take at A Level in order to best qualify for a degree course in law. They turned out to be English, History and Latin. I was good at English and History not so much at Latin and so it proved at A Level but not disastrously so and I won a place at New College, Oxford to study what Oxford calls Jurisprudence.

I enjoyed the course and got a good degree. By the time I had completed it I realised that after all the law was not for me as a career. There were two reasons: firstly, that during my gap year I had spent a fascinating year as an exchange student in the United States and developed a wanderlust and could not commit the rest of my working life to a single location like London or Manchester. That has proved correct as during my life I have had spells all over the UK as well as in North and South America and in the latter is where I met my wife. Secondly, the law is a dynamic subject which is healthy in that it is constantly changing both through parliamentary legislation and through changes in common law by judges’ decisions. This means that a practising lawyer needs to spend a great deal of time in the library to keep up-to-date and I had spent enough time in the library during my years as a student and wanted to get out there and do something. In both arguments I was correct, and I have kept in touch with my colleagues at New College, both with those who went into the law and those who didn’t and for all of us it seems to have worked out well.

What I did gain during this period was a recognition that English law was probably the best system in the world, the fairest and the most developed in terms of its philosophy and commitment to core principles. However, I’m not at all sure that is any longer the case.
The Secret Barrister is a junior barrister specialising in criminal law. They write for many publications and are the author of the award-winning blog of the same name. They were named Independent Blogger of the Year at the Editorial Intelligence Comment Awards (2016 and 2017) and Legal Personality of the Year at the Law Society Awards (2018).

Their first book, The Secret Barrister: Stories of the Law and How It’s Broken, was a Sunday Times number-one bestseller and spent more than a year in the top-ten bestseller list. I read this book and it made a deep impression on me. Now their second book Fake Law: The Truth About Justice in an Age of Lies was also an instant Sunday Times top-ten bestseller on publication. I have also read this book and it has made an even deeper impression.

It is both a spirited defence of the legal system and also an exposé of agenda-driven politicians, click-hungry tabloid editors and powerful corporate interests who persuade us that the system is stacked in favour of criminals and the undeserving. This leads to changes in the law which means that our own fundamental rights - for example, to legal aid - are being quietly eroded and in some cases extinguished.

There is, for example, the well-reported case where in a British court an out of touch judge acceded to the pleas of an illegal immigrant who took the stand to contest his deportation, after he committed serious criminal offences. What was the reason for the decision to let this man remain? It was because he had a pet cat. Apparently, this was a victory for the European Union’s Human Rights Act, putting British citizens at risk so that the nation’s migrant cats might sleep soundly in their baskets. Theresa May as Home Secretary at the Conservative Party Conference on 4 October 2011 quoted this case as an example of the defects of the Human Rights Act. She said “The illegal immigrant cannot be deported because - and I’m not making it up - he had a pet cat.” But she was making it up. It wasn’t true. It was one of those stories that had been invented by a national newspaper in its campaign to get us to give up the Human Rights Act and there are many similar such stories.

Hence the Secret Barrister’s title: Fake Law; distortions of legal cases and judgements, spun and reformed for mass consumption. This is not a new phenomenon but, now that a misleading headline can reach a million Twitter users with just a click, is widening in scope, deeper in reach and significantly more difficult to defeat.

There is no doubt that the law is inherently, and perhaps unnecessarily complicated, and alienating to the non-legal audience. Even trying to find out the law is extremely hard and, in some cases, impossible. Parliament turns out new laws quicker than the government can publish them.  the official government website responsible for publishing freely accessible versions of law, has been out of date for decades. The website boasts 6.5 million pages and one in 50 of the laws in the official government website were wrong.

I was brought up to believe in the strength of the common law system over those countries that rely on codifications like France or on a written constitution like the USA. There are many advantages in constitutional terms in not having a written constitution, for example, just look at the difficulties the United States has got with gun-control because of the mistaken assumption that the constitution defends the right to hold guns. It was not intended as such. Instead, it was intended to allow the newly independent nation to raise a militia if necessary against the British, not for individual households to own up to 200 automatic weapons.

However, since 1166 our courts have had the power to make law where a case involves an issue of interpretation or clarification of legislation passed by Parliament, and our most senior judges hand down judgements which have the effect of binding our lower courts (the doctrine of precedent). So, to understand what a statute means, it is not enough to simply find the latest version. You will also need to know what further interpretation has been added to it through case law and accessing that is almost impossible. There is an official provider of free, up-to-date online case law called the British and Irish Legal Information Institute (BAILII), a charity subcontracted by the Ministry of Justice to publish the text of new case law on its website. They manage to upload hundreds of new judgements per month from the various Senior Courts and Tribunals from across the United Kingdom but as a charity dependent on donations it has its limits. It seems outrageous that the Ministry of Justice would not fully fund such a vital endeavour. Good though their efforts are they were only able to upload less than half the 74,000 judgements between 2007 and 2017. Extraordinarily, it is also restricted by copyright from publishing judgements from cases before 1996. It would seem that even the text of our laws has been procured and exploited for private gain.

The Secret Barrister argues that our education system only compounds the problem even though the law is there at every facet of our existence from the womb through to and beyond our death. Our schools have historically placed no emphasis on legal education. Children are not taught how our laws are made or what our rights are or how does the justice system work or what is the court hierarchy or what is the difference between a solicitor and a barrister or a judge and a magistrate? If these are covered anywhere, they are squeezed into generally unpopular citizenship or general studies curricula rather than positioned right at the centre as a key pillar of education as important as language and maths. According to research reported in 2019 the British public is dangerously ignorant about the law with more than 1/3 of those surveyed not even knowing the difference between criminal and civil courts. Citizens Advice reported that only two in five people have faith in the justice system and those who do make an effort to understand the law increasingly rely on secondary and almost always unreliable sources such as social media. That point is true of most information as more than half the population of the UK get their news now through social media which inevitably means they are getting a distorted and unedited version.

The Secret Barrister is not suggesting that the justice system is perfect and there are many stories of how the law really is broken. What this book is aiming at is the fact that those narratives that teach us about how and why the law doesn’t work are deliberately designed. Sometimes, it may just be trying to increase circulation or gain clicks. Sometimes, it runs much deeper amounting to a calculated attempt by vested interests to undermine and chip away at our individual rights and protections, the first principles that bind us together and the very foundations of our justice system.

I will return to this theme with specific examples in various categories of law.

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