The other week I watched an old film on television called “The Winslow Boy”. It was a re-make of an earlier version of the film, which was taken from a Terence Rattigan play. I suspect that most readers have heard of the film and know the story, but, for those who don’t, here is a quick summary: Set in around 1910 it tells the story of a cadet at a naval school who is expelled after being falsely accused of stealing a postal order. He protests his innocence to his father, who then tries to get justice for his son and attempts to hire the services of a top barrister who is also an MP. The barrister takes the case and, in his attempt to get a proper trial, he invokes the legal maxim “let right be done”. Of course he eventually succeeds and the boy is found innocent. The story is actually taken from the real case of George Archer-Shee who was acquitted of the same offence in 1910 with the aid of a top barrister.
I don’t know if the saying “let right be done” has any basis in legal fact, I cannot find it in a law dictionary, or if it is just a bit of theatrical license, but I believe that those four simple words sum up the whole essence of the ethos behind English law. I did a law degree with the Open University between the years 2000 and 2005, and I found the law fascinating. The principle of Common Law grew out of the custom that existed at the time, and was supposed to have been originally written down and codified by Alfred the Great. Common Law is essentially decisions reached by judges, in the absence of Statute Law, based on common sense and the standards of the time. These decisions can be amended or reversed by appellate courts, and the decisions of these higher courts are binding on future cases.
During the medieval period it was sometimes the case that the Common Law was not always able to deliver justice in all cases, and anyone who felt that they had not received justice from the decisions of the Kings Bench court were then able to appeal directly to the King for Royal justice. The King, of course, could not hear all these appeals, so He delegated this duty to the Lord Chancellor, who became known as “the Keeper of the King’s Conscience”, and presided over what became the Court of Chancery, which heard these cases under the principle of Equity. Equity is effectively the doing of justice despite what the Common Law says, and can be summed up by those words “let right be done”.
One thing that became apparent to me when I was studying the law was that the guiding principle behind English law is the preservation of the rights and freedoms of the individual British citizen. It would seem that English law exists primarily to serve society and protect the individual citizen from injustice. I have read some of the late Lord Denning’s books, where he describes how he navigated his way through Equity in order to do justice in various difficult cases, and he was certainly a master of his craft, whose principle motivation was to arrive at a result that was fair, just, and “right”. We could certainly use his expertise and integrity today.
However, in 1973 a dark menacing cloud appeared on the horizon in the form of European Law. Lord Denning commented: “But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforth to be part of our law, it is equal in force to any statute.” European law effectively takes over from British law, which includes both English and Scottish law, and several cases in the European Court of Justice have established the supremacy of European law over National law.
European law is fundamentally different from British law. Under British law the individual can do whatever he likes so long as there is not a law against it. European law seems to have its base in the “Code Napoleon”, which was imposed on France in 1804 and works on the principle that the law lays down in great detail what an individual may do, and he is not permitted to do anything that is not allowed by the law. European law is all about controlling the citizen, and keeping him as a servant of the State. I don’t know if there is any sort of principles corresponding to Equity in the various continental legal systems, but I haven’t found anything remotely like Equity in my studies of European Union law.
The referendum result gave us a ray of sunshine to pierce the dark clouds, and we have started the long, difficult, and uncertain process of ridding ourselves of the domination of our country by an unelected foreign power. The distinctive step will be when our representatives repeal the European Communities Act 1972, which is what makes EU law effective in the UK, and restore power to our elected representatives. However, we must always remember that it was the forerunners of these representatives that sold us into European occupation in 1972, so we need to create safeguards on our sovereignty so that they can never do it again. We must always keep the power to instruct our elected representatives in the hands of the citizen, and be able to hold them to account for their actions. Our courts also need to be completely independent of government, and must always be guided by that simple principle: “Let Right be Done”.