"Fake law" offers a powerful corrective to self-serving claims from cynical and incompetent politiciansby David Allen Green / September 2, 2020 / Leave a comment
A great deal of law in practice exists only in the mind. Most people regulate their conduct by what they believe the law to be. They do not read legal textbooks, still less look at contracts or Acts of Parliament. Few regularly see or experience the brute uses of power that are sanctioned by law, such as convicted defendants being “taken down” or a bailiff seizing property.
One obvious problem with “the law as whatever people think it to be” is, of course, that those people can get the law wrong. But this often does not matter on a personal level, so long as the essentials of lawful conduct are followed. Most people know that if they are basically honest and fair in their commercial dealings, and that if they avoid violence, they will avoid things “going legal.” In this way, people will tend to be law-abiding without too much effort.
But this general ignorance of the law has a cost. It means that a person usually has no stock of legal knowledge with which to counter false claims about the law. And so people nod along when populists tell lies about legal cases and make baseless promises about what can be done by abolishing or repealing old laws or writing new ones.
In this “post-truth” period, the consequence of this ignorance is that many cannot see the opportunistic knavery of those in executive office seeking to dismantle the checks and balances provided by an independent judiciary, and undermining the laws that protect fundamental rights and freedoms.
Of course, such political and media charlatanism is not new. Those who exploit public prejudices have always been with us. But technological changes and social media have made it easier to promote and share untruths—especially untruths that people want to be true.
And there has been a corresponding decline in the means of countering the untruths. Those who work in the news are even less likely to have basic legal knowledge. Journalists no longer do part of their training sitting in magistrates’ and county courts. There are now only a handful of dedicated legal correspondents.
In parliament, experienced lawyers are so rare that, for example, the grand offices of lord chancellor and attorney general are these days often occupied by those who do not have either sufficient or any experience of the law. There are empty spaces in public and media life where those who at least understand and care about the law used to be.
Against these depressing trends, there are some positives. There is free and open access to primary legal information. Instead of having to visit specialist libraries, anyone can browse up-to-date legislation and case law in moments. Significant judgments are published promptly, in readable and scrollable form. The sentencing remarks of judges in sensitive criminal cases are put online, so it can be seen why a certain punishment was or was not given, without reliance on the garbled version that often emerges from rushed newsdesks.
And then there has been the rise of the legal blogger and tweeter. These lawyers and academics who volunteer to promote and share accurate legal information on social media appear to have wide audiences for what they do. The greatest of these legal communicators in Britain is the author of this timely new book about fakery and the law.
This is the second book by the “Secret Barrister.” There is, of course, a certain irony that a book about legal fakery is written by someone whose exact legal credentials are not revealed. That said, if a great deal of law in practice exists in the mind, then so can the authority of the “Secret Barrister.” We may not know their actual qualifications. But we can go by their attention to often grimy and telling detail, their verifiable claims about the law and justice system, and their consistently light and engaging manner. The authority of this author is in the sheer quality of the writing. To keep up to this standard in tweet after tweet, blogpost after blogpost, and now book after book is remarkable—especially if, as the author tells us, they do all this in addition to a busy and stressful criminal practice.
The first book was a detailed and accessible survey of the collapsing criminal justice system in England and Wales, structured as a story from charge and prosecution to conviction and appeal. A humane and readable exposition, it was sympathetic to those caught up in an underfunded and chaotic process that often does not work, or works only because of the professionalism and goodwill of those involved. The book was an emphatic corrective to casual and self-serving claims about criminal justice. It was perhaps an unlikely bestseller, but it deserved to be so.
That first book, however, was written about just one area of law and legal practice. As the author then averred, it is an obligation of those who work in criminal justice to explain what is happening to the outside world, as there is nobody else better placed to do it. In this new book, the author widens their scope to how justice and the law as a whole are dealt with by the media and politicians generally.
As Fake Law goes from the author’s familiar beat of criminal law to non-criminal cases about terminally ill babies and attempts to close down parliament, a depressing vista emerges. Politicians and part of the media routinely make false assertions about the law, and then feed off each other. A minister will make a false claim, and this is promoted by media outlets, and in turn media reportage will lead ministers to promote false claims.
Some characters keep reappearing. One former minister Chris Grayling is described putting forward a daft, ineffective law on self-defence against burglars and then later putting forward a similarly daft, ineffective law on compensation and health and safety. The slogans may be different, the idiocy is the same. But the ministerial career of Grayling—whose policies keep failing because they are so superficial—is a symptom, not a cause. This is the sort of record one can get away with when few in politics and the media care about getting things right.
The chapters are titled thematically: your home, your family, your health and so on. The content of each chapter is not, however, as broad as their titles. The chapter on your home, for example, focuses on the laws regarding permissible violence to intruders; the chapter on your health examines the laws on compensation for personal injury. The author admits that when not writing about criminal law they are relying on the legal expertise of others, but the lack of direct expertise rarely shows. This is a useful book on each legal topic covered.
The most powerful parts of the book do not deal with fools like Grayling, but with those who are far more cynical and dangerous. The sickening account of how various campaigners exploited the dire cases of infants Charlie Gard and Alfie Evans reveals the horrors that can happen when the media depiction becomes divorced from legal reality. False hopes are created, crowd funding is frenzied, and politicians are loudly committed. During all this babies continue to suffer, as medical and legal professionals work to establish and protect the interests of the children. It is a chapter you will long remember reading.
And then there are politicians’ attacks on the body politic: their misrepresentations of legal aid and human rights law, and the way these are then uncritically repeated in the press. The assaults on the independent judiciary, and the legislative supremacy of parliament that were parts of that executive power project known as Brexit.
Reading some of these passages is disheartening: the removals of practical access to justice and an ability to assert rights leave a population increasingly powerless in the face of the state and its agents. Some passages are more heartening, such as the two Gina Miller cases that led to the Supreme Court telling an arrogant executive that it governs through parliament and not without it. But the executive impulses are the same: to obtain and exercise unchecked power and to weaken or eliminate anything that can counter this.
In most mature representative democracies, these constitutional trespasses would be a scandal, as they would defy accepted political and legal norms. In Britain, however, there is often a public shrug, and the only excitement is that of the time-poor reporter who has 500 words of knocking copy about people prancing around in horsehair wigs.
If you read this book and disagree with its core propositions then you will have a challenge. This is because each significant factual claim is properly footnoted, usually with publicly available information. So if you want to counter it factually, you will need to have different and more weighty facts. In presenting its case, this book also anticipates obvious counterpoints. So should you disagree with its reasoning, you will need better reasoning. And, of course, you will be hard-pressed to fault it on the law.
But—unlike the first book—this is a generalist survey, rather than a specialist documentary exposé. The criminal law parts are familiar from the last book—and there are perhaps only so many ways you can write about a failing criminal justice system. Fake Law is mostly concerned with the far broader perils that flow from a deficient public understanding of the law, and may sometimes seem to be conflating two problems—the cynicism of those who want to abuse the law, as well as those who simply don’t understand it. Perhaps each might better merit a separate book.
The political project of Boris Johnson and Dominic Cummings is, in effect, to remove from the public sphere anyone who can say no to them: judges, parliamentarians, civil servants and so on. The many incompetencies of Grayling and others were, in a way, a blessing. More driven and spiteful forces are now at play, and for them mere laws are inconveniences to be derided or ignored, if not repealed or abolished. They want nothing—and certainly no court—to be able to stop them.
In an ideal world, a book like this would not be needed. That is because those saying untrue things about the law should be held to account by other voices, and there would be a more active citizenry who would not be easily misled. But we are not in this ideal world. Instead, we face a lack of balance in discussion of the law, which now threatens to unsettle the scales of justice.
But the position may not be hopeless, not least because political actions will often give rise to an equal and opposite political reaction. In the US, President Trump’s suggestion of postponing election day was a step too far even for his supporters. Similarly, to borrow a phrase from an intellectual godfather of modern libertarianism, Robert Nozick, the Johnson-Cummings anarchic state of utopia, with its law-free politics, could very well run into practical trouble, and thereby become unappealing to the electorate and to Tory backbenchers. If so, a book like this may one day strike historians as evidence of the scales of justice resetting, rather than a depiction of those scales toppling over. Perhaps.
Fake Law: The Truth About Justice in an Age of Lies
by The Secret Barrister (Picador, £20)