In recent months the British government has unveiled an array of measures that promise to change the legal system profoundly. This spring, British citizens learned that Jack Straw, the home secretary (the rough equivalent of the American attorney general, though with more political power), plans to abolish trial by jury for all but the most serious crimes. He is also considering lifting the rule against double jeopardy, which prevents a defendant from being tried more than once for the same crime, and is thinking of criminalizing offensive language even when it is spoken in the privacy of one's home.
Some in the British news media have treated these announcements as an aberration. Surely, they ask, these are not normal measures for a Labour government. The BBC was quick to remind audiences that the idea of abolishing trial by jury was first floated by the last Conservative home secretary, Michael Howard, three years ago in a rousing speech to his party's faithful. Maybe Straw's promises are an attempt by the new Labour government to woo elusive middle England voters--traditional middle-class Tory voters--from rural and suburban areas? But with the Tories still trailing abysmally in the polls, it is hard to see what Jack Straw has to fear from middle England.
To make sense of what is happening to the British legal system, it is necessary to look beyond middle England and peer into the depths of New Labour's thinking and practice. The truth is that Jack Straw is very much in his party's mainstream when he talks about reforming fundamental aspects of British law. He has told Parliament that he expects most of these measures to be law by the end of 1999. While it is not certain that all his proposals will reach the statute books, the entire Cabinet shares Straw's enthusiasm for reform. His plans are indicative of a new approach to the law, one influenced by radical legal thinking imported from the United States. As a result, some of the key principles on which the law has stood for centuries, principles aimed at protecting individuals from trespasses by the state, are being challenged.
The impulse behind the current wave of reform comes from the findings of a high-profile inquiry into the London Metropolitan Police Force, published last spring. In 1993, a young black man named Stephen Lawrence was brutally murdered by racists in the streets of South East London. Although there were five prime suspects, nobody was convicted, and the case remained officially unsolved. Gradually, the belief grew that the inability to secure a conviction was due to racist attitudes within the police force.
For the next few years, Stephen Lawrence's parents demanded that somebody investigate why the police had proved to be so incompetent. But not until Labour came into power in 1997 did the authorities take their demands seriously. Jack Straw set up a full public inquiry into the affair.
Although formally independent, this inquiry had the blessing and backing of Labour from its inception. In the way that Independent Counsel Kenneth Starr was regularly linked to the GOP in the public imagination here, so the Lawrence investigation was seen by many in Britain as a political initiative by Labour. Unsurprisingly, when the investigators finally published their findings in The Stephen Lawrence Inquiry (www.official-documents.co.uk/document/cm42/4262/4262.htm)--commonly known as the Macpherson report, after the chair of the team, retired judge Sir William Macpherson--the government took the unusual step of agreeing to implement all 70 of its recommendations.
After months of hearing detailed evidence, Macpherson and his three-man investigative team concluded that the London police were indeed guilty of institutional racism. No inquiry had ever been so critical. The report sent a shock wave across the nation. Newspaper headlines screamed of a "police force disgraced and a nation shamed." As one of the report's authors--Richard Stone, president of the Jewish Council for Racial Equality--explains, "Many people in Britain are grasping the reality of institutionalized racism for the first time. Mr. and Mrs. Lawrence have woken up mainstream Britain to the fact that many black people face a serious problem. The fact that such a major institution as the police could have allowed such a serious injustice to occur...can't be due to chance."
But the shocking findings against the police were not the team's only conclusion. Macpherson and his colleagues made extensive recommendations about how to prevent such a miscarriage of justice from occurring in the future. While many of their recommendations focus on police recruitment, training, and disciplinary procedures, the report also urges reform of education. As part of Macpherson's proposed changes to the National Curriculum, every child in the nation should now be instructed in "valuing cultural diversity and preventing racism." The report also suggests key legal changes to make the prosecution of racists easier. These recommendations illustrate the new approach to legal thinking.
First, the report recommends that the police, and indeed all public institutions, adopt a new definition of racism. From now on, the definition of a racist incident in the United Kingdom is "any incident which is perceived to be racist by the victim or any other person."
Second, despite worries about racism within the police, the team urges that the powers of law enforcement be increased. In recommendation 38, the report suggests that "consideration be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented"--in short, suspending double jeopardy. This idea is now before the Law Commission, the body that evaluates proposed legal reform.
Third, the Macpherson panel urges that consideration be given to amending the law "to allow prosecution of offenses involving racist language or behavior...where such conduct can be proved to have taken place otherwise than in a public place." The Home Office (the rough equivalent of the Justice Department) is now considering this proposal.
Not everyone in Britain is happy about these proposed changes. During the parliamentary debate on the report, individual Tories ridiculed aspects of the report as "Orwellian." Others saw the definition of racism as unworkably subjective. The normally out-of-touch and staid Tory M.P. David Maclean speculated what could happen to four hypothetical characters having a drink after work.
Suppose, he said, "they come out of the pub and find that their car windshields have all been smashed. One man is black and says that the smashing of his windscreen is a racist incident. Am I right in understanding that the police would be obliged to record it as such in his case? Even worse: The black man does not complain to the police that the smashing of his windscreen is a racist incident, but others who spot the incident on the news that night or in the local paper the following week go to the police and say that it was a racist incident."
Other, less eccentric commentators worry that the changes will do more harm than good. Liberty, a British civil liberties group, thinks that the proposal to criminalize racist language spoken in private is an excessive intrusion into privacy. Its director, John Wadham, also points out that waiving the double jeopardy rule would do little to prevent future injustices. As he explains in a statement, "This is wrong in principle, would not have helped the Lawrence case, and, because of the racism in the criminal justice system, will be used more often against black people than white."
The report's supporters are unmoved by such critics. According to Lee Jasper, one of Britain's prominent black activists, "The right-wing press is trying to discredit some of the report's recommendations, referring to the `thought police' and so on." As he explained to his supporters in a newsletter this year, "Society has to make a judgment: racism is unacceptable or it is not. Race hatred has to be eradicated and most of the changes recommended by the report would be a step in the right direction."
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