“Progressives” extinguish the lamp of freedom
The weekend politics essay
Memorial at the Old Bailey to the jurors who defended William Penn (Credit Paul Clarke)
The British did not invent trial by jury – ancient Athens had juries – but through its empire it spread juries round the world.
Once we were proud of the democracy of the courtroom. The British judge Lord Devlin (1905-1992) declared: “Trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”
Now Britian is about to all but abolish jury trials. Incredibly, the attack is coming from Britain’s centre-left government. Given that Keir Starmer, the prime minister, was once a human rights lawyer, and David Lammy, the Home Secretary, was once an anti-racist activist, the duplicity is simply staggering.
It is also a gift to the radical right. Look, it can say, progressives despise ordinary people and hate freedom. And, if you doubt us, just look at what is happening in Britian.
Here is my account of how the betrayal unfolded.
In 1670 Charles II’s law officers charged William Penn (who was to go on to found Pennsylvania) and his fellow Quaker William Mead with holding an unlawful religious assembly.
The Stuart state supressed nonconformist dissenters outside the Anglican Church – and no one hated conforming more than the Quakers. But the jury put justice above the letter of the law and refused to convict.
The trial judge, Mr Justice May, was furious. He ordered the the jurors be locked up without food, water or heat.
“You are Englishmen,” cried Penn as he exhorted them to ignore the judge. “Mind your Privilege, give not away your Right.”
The jurors, led by their foreman Edward Bushel, held firm
“Sirrah,” May cried at Bushel, “you are an impudent fellow.” The jurors would not be intimidated and eventually, the Chief Justice of the Court of Common Pleas upheld the right of jurors to follow their conscience in a decision that was celebrated until 2025 when Britain’s Labour government decided to come down on the side of authoritarian judges.
Trial by jury in England goes back to the reign of Henry II in the 12th century. It has survived not only the Stuarts, but also the Wars of the Roses, the Reformation, the Industrial Revolution, the Napoleonic wars, two world wars and the Cold War.
But it can’t survive Keir Starmer and David Lammy.
That a human rights lawyer and a supposed anti-racist plan to massively restrict the fundamental, democratic protections of the English law is astonishing.
It is a betrayal of the Labour movement, and of the wider radical tradition Labour claims to represent, and it makes a complete nonsense of everything Starmer and Lammy said they once believed.
You could write the script for Labour’s opponents. Its enemies will portray the party as the servants of an elite that despises ordinary people and prefers to allow wealthy judges to hand out convictions to the plebs from on high.
Like Mr Justice May, in the 1670s Labour in the 2020s will be the party that treats the public as “impudent fellows” for daring to think that they know better than their betters.
“The truth is that the Labour party just does not think that ordinary people are up to it,” Robert Jenrick, the shadow justice secretary told the Commons on Thursday. “It wants to shackle us to the European convention on human rights, scrap jury trials—all because lawyers know best.”
When he was campaigning for the Labour leadership Starmer released a video, which makes bitter viewing now. It portrays him as a representative of the radical English tradition, that goes back through the trade union movement, to the supporters of the French Revolution in the 1790s and on ot the dissenters of the 17th century.
The video showed how the young barrister had defended striking print and P&O workers in the 1980s, given free legal advice to poll tax protestors, worked for environmentalists opposed to widening the M3 and the sinking of the Brent Spa oil platform into the North Sea, and a good dozen other radical causes.
“I have spent my life fighting for justice,” Starmer declared, “standing up for the powerless and against the powerful.”
Now he once to all-but exclude the powerless from the legal system and give the powerful more power.
He doesn’t seem to know or care that judges can be biased. One can go on about the now voluminous evidence on every aspect of unconscious bias, up to including the study of the “hungry judge effect” which found that judges’ decisions were harsher before lunch and more lenient after they had had a good meal.
But Lammy was once well aware of a more serious failing: racial bias. In 2017, Lammy chaired an independent review of the treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the Criminal Justice System.
It found that juries put the judiciary to shame. Binna Kandola, a psychologist and adviser to Lammy, wrote in the Guardian that the jury system was “a notable success” story. In an analysis of nearly 400,000 cases, “the review found that juries were consistent in their decision-making, irrespective of the ethnicity of the defendant”.
While juries appeared able to keep race out of their decision-making, judges could not. They were significantly more likely to give offenders from an ethnic minority “a custodial sentence than white offenders for comparable crimes.”
And now that same Lammy, who paraded his anti-racist credentials in 2017, wants to take away the protection of jury trials from ethnic minority defendants – and indeed from all of us.
I would be amazed if Labour backbenchers let Lammy and Starmer get away with this – although I am afraid that amazement at what the Parliamentary Labour Party will tolerate is now a permanent affliction.
The justification for tearing up centuries of British liberty is that the crisis caused by Covid justifies authoritarianism. Crown Courts are facing record backlogs with more than 78,000 cases waiting to be completed. This is indeed an outrage. But it has not been caused by Covid but by the failure of successive governments to fund the justice system.
A report from the Institute for Fiscal Studies found that in 2025–26, real-terms day-to-day spending by the Ministry of Justice will be 14% lower than in 2007–08, and 24% lower in per-person terms.
When the Tories were in power, Labour castigated their failures.
Now Lammy and Starmer are in power, rather than finding the political courage to take on the Treasury, they are proposing an attack on the basic liberties of this country that is far more extreme than anything the Conservatives contemplated.
For decades, authoritarian judges and officials have wanted to restrict trial by jury, and for decades democratic politicians have resisted them.
Earlier this year, the retired Court of Appeal judge Sir Brian Leveson, a man cut from the same cloth as Mr Justice May, said that a judge sitting on their own or with a couple of magistrates could take the place of juries in most cases.
Rather than politely telling Leveson to get back in his box, Lammy and Starmer went further and proposed an even greater extension of judicial power.
People throw around the label “populist” as if it only applies to right wingers. But Labour was once a populist party. It was suspicious of judges and millionaire lawyers and trusted the good sense of ordinary people.
Is Keir Starmer, once a radical barrister and Labour’s first working-class prime minister in almost a century, seriously going to be the prime minister who silences the voice of the people in the criminal justice system?
If he does, he will confirm what his critics say, that he is a man without principles or beliefs who blows around like straw in the wind.
Incidentally, if you go to the Old Bailey there’s a plaque commemorating the “courage and endurance” of Edward Bushel and his fellow jurors. Soon they may have to take it down.
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This retired American lawyer agrees 100%. This is frankly one of the stupidity moves Labour could make. Appointed judges tend to be statist and biased in favor of vested special interest. If enacted it will mean that real justice is less likely in British courts. Juries are much more likely to represent the people and produce fair results. Worse, if it happens in the U.K. It is more likely to spread to other nations. A real boon to the far right, the rich, and the powerful.
A mutual waiver of a right to a trial by jury in favor of a trial before only a judge or arbitration is one thing, the mandatory abolition of the right is quite another.