This April, the UK government announced plans to deport refugees to Rwanda, where their claims would be processed, and where they would be compelled to live if their claims succeeded. On 14 June, lawyers acting for those threatened with deportation succeeded in obtaining an injunction to stop the first Rwanda flight. This victory is a chance for radicals to pause and ask: what is the place of law in social struggle, and are we campaigning in the most effective way? What if our embrace of the justice system is not just a sign of political weakness, but actually ‘a gift to the right’?1
One source of this anxiety is the way in which—from the very first press conference at which the plan was announced—Boris Johnson has been warning his supporters of the inevitability of judicial challenge. ‘I know that this system will not take effect overnight’, he said on that occasion. ‘We have such a formidable army of politically motivated lawyers who for years have made it their business to thwart removals and frustrate the government’. The mere fact that Johnson has been publicly pricing in the possibility of his defeat does not, of course, mean that the government has a well-worked out plan to deal with its own defeat. But it does invite left-wing lawyers to pause and reflect on what we are doing.
The UK government has a long history of presenting litigation as obstructive and illegitimate. Over the last twelve months, it has passed laws to obstruct people from suing British soldiers,3 or spies,4 when they commit crimes abroad. It has passed laws making it harder to challenge government actions by judicial review;5 it has also threatened to repeal the Human Rights Act. Moreover, at certain key moments, the government’s stance has met with public support. The most important instance of hostility to the law was seen in the autumn and winter of 2019. That August, the government decided that it would prorogue (suspend) Parliament, in order to force through a settlement of the long-standing Brexit crisis without allowing parliamentarians to vote. In September, the Supreme Court ruled that the prorogation was unlawful. By insisting that ministers could not deprive members of parliament of a vote on an issue of national importance, the Supreme Court defended the separation of powers and the principle of parliamentary sovereignty. Or, at least, that’s how almost every lawyer saw the case.
The problem was that the British public drew different conclusions. They saw ministers and those voters who had chosen Brexit as frustrated by unelected lawyers. In that December’s general election, the Conservatives increased their seats by 48 votes. Johnson’s slogan of ‘Get Brexit done’ offered millions of voters an answer to the paralysis of our political system. Being seen to break the law did the Conservatives no apparent harm, while being seen to be a party of rule-followers gave their opponents no meaningful advantage.
It is illuminating to examine the planned deportation to Rwanda in the context of that election result—and the senior judiciary’s fear about making the same mistake twice. The first thing to notice is that, for all of the success of lawyers in obtaining an injunction to stop the first Rwanda flight, this success came only at the third time of asking—after the High Court and the Court of Appeal initially refused to prevent the Rwanda flight.—clear evidence of judicial resistance to progressive litigation. Such a pattern of government victories outnumbering defeats is in fact consistent with the experience of the past few years, in which any number of ‘political’ judicial reviews have failed. Indeed, since the 2019 election, most high-profile challenges to government policy have been lost. Examples include the Supreme Court’s refusal to allow Shamima Begum to return to the UK;6 or its decision to uphold the benefits cap—in which Lord Reed, the president of the Supreme Court, criticised the trend towards political litigation, characterising it as ‘usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament’.7 The Court had no choice but to reject such litigation, Lord Reed insisted, or ministers would turn on it. ‘Judicial independence is accepted only if the judiciary refrains from interfering with political processes’. (It is not too hard to see, in such formulations, the Court buckling in the face of such blatant acts of executive pressure as the Judicial Review and Courts Act 2022, or the threatened repeal of the Human Rights Act.8)
The same judicial caution has been visible repeatedly since 2019. I think of the protests in March 2021 against the murder of Sarah Everard, and how the High Court dealt with them. The organisers of a vigil in her memory sought permission from the police to protest. Being told by police officers that all protests were unlawful for the duration of the COVID-19 lockdown, campaigners asked the Court for permission to protest. Their lawyers secured an oral concession from the police that contrary to the literal wording of the Regulations some protests must be lawful, but no declaration that their protest could take place, nor any acceptance from the police that other protests might be allowed in future. The police felt empowered to attack protesters at the vigil the next day, arresting four people and scattering the crowd, with their action seemingly have been approved in advance by the courts.9
Based on the experience of Rwanda, and without wishing to fall into leftist cliché, the following statements turn out to be true. Popular struggles do, as socialist lawyers have always hoped, win some victories in the law. But we lose by the relocation of power into a legal sphere where the rights of the propertied are of greater weight than the rights of protesters. To win lasting victories, it turns out, we often have to look outside the law.
When a campaign chooses to litigate, that decision alters the balance of power inside the movement. Juridification—the process by which increasing areas of society are folded into the law—changes the relationships inside a campaign and centres the lawyers who have to do the hard work of persuading judges. The focus of the campaign shifts upwards: from members to activists; from activists to the full-time campaigners who tell lawyers what to say; and from the public to the judges who make the final decisions. In the right circumstances, such a change might be a price worth paying (in terms of greater publicity, a chance to win a particular legal victory, and so on). But there are always disadvantages as well as advantages, and we should admit them.
I remember how Occupy London ended up in the courts. It began in October 2011, in emulation of events in Egypt, where Tahrir Square had been a focus of protests against President Hosni Mubarak. Protests spread to Zuccotti Park in Wall Street, and from there to London. A tent city was established in the churchyard of St Paul’s Cathedral. Protesters organised a library, a first aid centre, and food and welfare provision. Those occupying the buildings came before the courts in two main cases, Samede, which concerned the main occupation at St Pauls,10 and Sun Street Properties, a second occupation of a disused bank which had been taken over by a second group of occupiers and rechristened the Bank of Ideas.11
Samede ended in unequivocal defeat, with the Court of Appeal holding that the Human Rights Act could not be used to establish a right to occupy. Sun Street Properties ended better for the occupiers. The High Court found that a possession order had been made without notice to the occupiers. Although the possession was upheld, Lord Justice Lloyd granted permission to appeal, with no enforcement in the meantime. The Bank of Ideas occupiers were in that way able to remain over the winter, before negotiating departure on their own terms.
Many of the protesters who had occupied the Bank of Ideas termed themselves anarchists. Yet they were comfortable working with lawyers. Although their politics rejected the law, their tactic of using occupations to advance a critique of capitalism meant that they encountered police officers, bailiffs, lawyers, and judges and this by necessity meant engaging with the law and the legal process. When they succeeded in obtaining permission to appeal with no enforcement of the possession order, a crowded room full of anti-capitalists stood and applauded the Judge as he left the room. For all their critique of the system, the defendants showed a surprising faith in the law.
That trust is often misplaced. Examples like the defeat of the Sarah Everard protesters in the courts, or the inability of the anti-Brexit campaigns to translate legal victories into political ones, show how rarely the law delivers what people seek.
What we need is a different approach, in which protesters disregard the law and choose instead to build up instruments of popular power: protest campaigns, movements, and political parties. They would see their physical power (their ability to take to the street) or their moral force (their ability to mobilise majorities of the people against the state) as the source of their authority. They would choose mass organising over submission to the limits of the law. This is not a new approach: the dominant politics within the trade unions of a hundred years ago was a revolutionary syndicalism in which workers turned down the opportunity of individual litigation and relied rather on strikes to force concessions from employers.
That same instinct of refusing to submit to the law has been a feature of many other campaigns. One example is the movement against the Vietnam War and the Trial of the Chicago Seven. This began following protests outside the Democratic National Convention in 1968. The defendants did all they could to bring out the political character of the trial. They tried to prove that the law was not neutral and that it was inherently hostile to them. They unfurled Vietcong flags; they dressed in black judicial robes beneath which were hidden police uniforms. When one defendant, the Black Panther Bobby Seale, insisted that he should not be there since he had been unfairly refused access to a lawyer of his choice, he was knocked to the ground on the order of the judge and beaten. Seale’s legs and hands were cuffed to the leg of his chair, and his mouth gagged.12 After constant protests, Judge Hoffman severed Seale’s case from the other defendants. They were, as they were always likely to be, convicted. Yet because the protesters had fought the law, they could explain their defeat in the court of public opinion. The public saw them as heroes and Hoffman as a tyrant.The outcome of the Chicago Seven trial was a legal victory: the defendants overturned their sentence on appeal. But the route to victory was found by refusing to submit to the law.
Sometimes, a legal battle is forced on outsider movements who have had no choice but to join battle in the courts—as when protesters are arrested and prosecuted. No-one would criticise them for defending themselves in court and seeking their own acquittal. Rather, what I am describing is a process in which social movements refuse to let the law dominate us. And, if we do engage the law, we make that engagement only one part of a much larger dynamic of popular mobilisation against whichever measure the government or business is pressing.
This anti-legalist model, ironically (given the widespread fear that the left may be falling into Johnson’s trap), is exactly what we have seen in the last week. In response to the Rwanda plan, protesters demonstrated outside the Home Office, blocked the road outside the detention centre from which the refugees were due to be extracted, and circulated details online of the company which was going to host the flight and of the businesses with which it trades.13
People resisted with that fury because they believed that all legal avenues were closed. But in protesting, paradoxically, they opened up the possibility of a different relationship between activist politics and the courts. The law was part of a popular victory, but a subordinate element. I do not wish to disappoint those of my colleagues who were in Court at 9:30 PM when the decision on the Rwanda flight was handed down, but what will decide whether the scheme is scrapped in its entirety is not the advocacy of a small cadre of left-wing lawyers. It is street mobilisation which alone can make refugee rights a majority cause.
David Renton is a barrister and the author of Against the Law: Why Justice Requires Fewer Laws and a Smaller State.
1 Anton Jäger, ‘The Tories’ biggest trick is making their opponents fight post-Brexit policies in the courts,’ Guardian, 3 May 2022.
2 Haroon Siddique, ‘Boris Johnson takes pre-emptive shot at lawyers over Rwanda scheme,’ Guardian, 14 April 2022.
3 Overseas Operations (Service Personnel and Veterans) Act 2021.
4 Covert Human Intelligence Sources (Criminal Conduct) Act 2021.
5 Judicial Review and Courts Act 2022.
6 Begum, R. (on the application of) v Special Immigration Appeals Commission & Anor [2021] UKSC 7.
7 SC, CB, R. (on the application of) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26.
8 C. Gearty, ‘In the shallow end,’ London Review of Books, 27 January 2022.
9 V. Dodd, A. Topping, H. Stewart, and L. Brooks, ‘Police told they cannot waive Covid rules for Sarah Everard vigils,’ Guardian, 12 March 2021.
10 The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) & Ors [2012] EWCA Civ 160.
11 Sun Street Property Ltd v Persons Unknown [2011] EWHC 3432.
12 Mark L. Levine, George C. McNamee, and Daniel Greenberg, eds, The Trial of the Chicago 7: The Official Transcript(New York: Simon & Schuster, 2020), p. 74.
13 ‘Rwanda protests cap a week of anti-racist struggle,’ RS21, 14 June 2022
Legal Form 