It’s lawyers who really rule the roost
SEAN WALSH
YOU will remember that owing to a clerical error the last government chose to parachute an unlikely coalition of Afghan interpreters and jihadis into all UK postcodes outside those of fashionable North London. You’ll also remember that it decided to keep all this from its theoretical employers – the electorate.
Rather than come clean about this imaginatively histrionic reaction to whatever it was reacting to, it reached for its judicial comfort blanket, ostensibly on security grounds, more likely because we are governed by people who think that we the great unwashed can’t handle the truth.
So, in place of candour they opted for a superinjunction, one of the less nuanced and more aggressive legal remedies available to a government wishing to hide its embarrassment from the people it’s supposed to work for. Like a Westminster Fight Club, the superinjunction is the dirty secret of the emotionally arrested political power player. The first rule of superinjunction . . . you get the drift.
To be clear: this was political malfeasance, not defence of the realm. If you doubt that then let me alert you to the involvement of fail-upward super-athlete Grant Shapps, the greyest of the grey, a Westminster operative whose modus operandi amounted to a perverse political photosynthesis, absorbing from his ambient surroundings all that was good and replacing it with concentrated toxicity. If that seems a bit ad hominem, then great.
We have, of course, had a notional change of government since then. I say ‘notional’ because the deeper threads of UK governance can no longer be unpicked by something as trivial or inconvenient as a general election. What we habitually call ‘the government’ is an epiphenomenon, a soap opera designed to provide cover for those more permanent structures distributed throughout SW1 whose consolidation has been one of those slow-to-mature evil legacies of the Blair revolution.
What was significant about the last election was the graduation into office of politicians captured by a certain idea of the law and its usefulness as a handy enforcement mechanism against the rest of us. Starmer himself retired as an Establishment lawyer so he could take up the less powerful job of Prime Minister – an act of unacknowledged personal sacrifice, for which he doesn’t get enough credit.
There is, I suggest, too much of the wrong sort of law going on in the UK right now, and too many of the wrong sort of lawyers throwing it about. What isn’t talked about enough is how an increasingly dominant legalistic culture, with its post-nationalist jurisprudential assumptions, is doing damage to the concept of law itself – at least as traditionally understood here in the UK.
Our politicians are hiding behind a version of the law that is abstract, impersonal, deracinated and internationalist. It is pathologically disdainful of the idea that there could be a distilled, intergenerational wisdom of the local. It supplies a tedious, unreadable liturgy of convenience for lawyers most at home in the lifeless minutiae of international treaties. Taken generally, it is a smugly clever codification of what Jeremy Bentham called ‘nonsense on stilts’.
It is the wrong sort of law, but like the femme fatale in a Chandler story, can enchant a certain sort of stupidly smart person.
The Common Law contrasts with this. It exists as a historical record of disputes between people of all classes, interests and personal peculiarity, and the resolution of those disputes via appeals to certain basic considerations of natural law, which it sees, correctly, as being written into the spiritual DNA of every self-conscious creation of God. The Common Law, in other words, is responsive to a sense of fairness, the idea that some things are just not on, irrespective of the clever language routinely used by people educated into believing ridiculous things.
And just because it has this deeper connectedness with the beautiful but baffling complexity of individual people it is the Common Law which has not just authority over those subject to it, but also their allegiance.
Incidentally, if you ever get involved in one of those tiresomely recurrent debates about the ‘essence’ of Britishness you’d do worse than refer to our historical affection for precedent-based law which (as with our somewhat jagged church history) weaves together many of the relevant elements required by a persuasive national story.
It would be nice to renew our vows when it comes to this relationship with Common Law. A necessary condition of a stable social order is a fine-tuned legal ecosphere in which no single legal philosophy comes to dominate over all the others. We have moved away from that. The Lord Hermers have, with the connivance of a usefully unintelligent political class, started a coup not just of judge against politician, but of one type of law against the role of politics as previously understood.
Perhaps the endgame here is the dismantling of that social order. For a nation to be a nation it needs to have a memory. That memory up to now has been folded into the traditions of the UK Common Law. Is that why it’s under attack? To wipe the nation’s memory clean and to kill it off for good?
This article (It’s lawyers who really rule the roost) was created and published by Conservative Woman and is republished here under “Fair Use” with attribution to the author Sean Walsh
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