A view of a sign at Greenwich Magistrates Court is pictured in south-east London, on July 10, 2008. Photo: Getty Images
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Magistrates should be stripped of their powers to restrict court reporting

Coverage of our courts is being censored - because magistrates are too quick to impose unnecessary reporting restrictions. In the interests of open justice, this has to stop.

 

Twelve years ago prison governors asked for magistrates courts to be stripped of their powers of imprisonment.

The prison population had soared to 70,000 and there was no more room - it was a crisis. (The number of people in jail today is 85,902, but relax! We’ve built more prisons to house the highest per capita prison population in Europe.)

Today I would like to propose another curb on magistrates’ powers. They need to be stripped of the ability to interfere with the reporting of the courts, because, to put it bluntly, many of them have not got the first idea of what they are doing.

Courts have various ways in which they can limit the reports that come out of their court. These are separate to the anonymity for victims of sexual offences and children in youth court, which is automatically applied by law and has nothing to do with a court order.

However, all courts - Magistrates, Crown and upwards - are given statutory powers to limit reports in various circumstances.

If a child is involved in an adult case, as a witness for example, they can place a so-called Section 39 order on that child making them anonymous.

If the court feels a detail from the proceedings might prejudice a trial it can make an order postponing reporting of it - a Section 4 order under the Contempt of Court Act 1981. Or if there are fears for national security, a complete ban can be issued under Section 11 of the 1981 Act.

The problem is that when it comes to interpreting the law concerning open reporting of the courts, magistrates and (sad to say) sometimes judges seem to be acting on a whim.

Recently I have seen the following:

  • A court unlawfully place a Section 39 anonymity order on the children of a woman accused of murder, even though they were not involved in the proceedings in any way and therefore could not in law be the subject of such an order
  • A court consider refusing to allow a sexual offence victim to waive her anonymity, even though in law she could do so and the court had no power to stop her - and to do so would be a violation of her Article 10 right to freedom of speech
  • A magistrate refuse to give her name to reporters covering a case, in contradiction of a ruling made in R v Felixstowe Magistates saying that they must give their names to the media so they can properly and openly report the proceedings
  • A section 39 order placed to anonymise a child who was dead, and who would therefore, obviously, play no part in the proceedings whatsoever

It may be that the magistrates concerned have not been given training in this aspect of the law - although their powers, and the restrictions on them, are very clearly set out in the booklet Reporting Restrictions in the Magistrates Court by the Judicial Studies Board, copies of which should be available in every court, and if not are easily obtained online.

It is also possible that they have received guidance, but are persuaded too easily by lawyers representing a defendant, to make an order which curtails reporting unnecessarily.

Either way these orders can severely hamper the open reporting of the courts and as so often has been stated in the past, justice unreported is no justice at all.

So these powers should be removed from lay magistrates and placed instead in the hands of a district judge or higher, so that proper legal argument can take place.

This would still not be perfect – district judges and those in crown court are capable of making daft orders on occasion, but are generally more open to persuasion otherwise if they can be shown case law or statute contradicting them.

The courts are woefully under-reported these days and they should be making every effort to be more open and accommodating to those who would inform the public of what goes on there. Making unlawful orders that close down coverage does nothing to help.

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Corbynism isn’t a social movement and Labour shouldn’t be one

The leader's supporters have confused party with movement and party with public. 

The second Labour leadership contest in 12 months is at its heart a clash of mandates. Jeremy Corbyn and his supporters justify his leadership with repeated reference to "grassroots democracy" and his backing among members, whether in votes, polls or turnout at meetings. The Parliamentary Labour Party (PLP) majority justify their disengagement from the leadership by highlighting their relationship with the electorate: the programme they were elected on, Corbyn's record unpopularity and the extreme unlikelihood of winning a general election under his leadership.

However, the moral legitimacy and strategic orientation underpinning Corbynite claims derives in large part from the notion that they are a "social movement" that reaches beyond parliament. To an extent, this is mirrored by some in the PLP, who differentiate themselves by reference to exclusively or primarily being a parliamentary party.

The problem is that Corbynism is not a social movement and neither wing adequately understands the relationship between parties and movements. The coordinated action of "people all round the country" does not necessarily make something a movement. Existing explanations of social movements (ecological, labour, feminist, LGBT etc) tend to emphasise broad-based and diverse coalitions of activists focused largely on social transformation goals in civil society and only then directed towards state actors/actions. As Matt Bolton notes, "The relation between activist groups and the state is not mediated by any electoral mechanism". Most movements are long-term in character, though others may be more ephemeral such as Occupy.

In contrast, statements from the Corbyn leadership and from Momentum emphasise more limited party and state-directed goals. These primarily focus on building a mass party and holding parliamentary representatives to account. Labour now has a mass membership, but is no more a mass party than when there was a similar expanded membership in the early Blair years.

A mass party brings together members and activists with deep roots in communities and movements that enable it to understand social conditions and changes. That degree of embeddedness may allow the party to build electoral blocs that articulate and aggregate interests and identities in a governing project that can win and then exercise power. That is different from the dominant conceptions of both sides in the clash of mandates debate. Most of the PLP majority come from a tradition where the party is little more than an electoral machine, where members have occasional walk-on parts and where the public is seen mainly through the prism of focus groups and mass media. The result is a hollowed out and professionalised politics without a transformative agenda that reinforces the roader crisis of representation.

In contrast, Corbynism conflates and confuses the functions of party and movements. The former becomes the"‘voice" of the latter – a kind of social movement aggregator and/or megaphone for any group "in struggle". But this fails to understand the complex nature of building a popular coalition, where those interests and identities may diverge and even clash sharply. Furthermore, the vast majority of voters are not active in parties or social movements and their views will be unlikely to be heard on the picket line or party rally. Democratic (as distinct from vanguardist) parties have to engage in trade-offs, identification of priorities and tactical manoeuvers that are a sharp contrast to ‘"support anyone/all demands in struggle". Even genuine insurgent parties such as Podemos and Syriza, with roots in movements, inevitably struggle to manage these tensions when faced with the prospect or practice of governing.

The Corbynite confusion is not new. We saw it at the height of the Bennite wave in the 1980s and particularly in Ken Livingstone’s vision of Labour as a rainbow coalition. Here, a prospective electoral coalition was envisaged from combining the demands of various movements, filtered through their supposed organisational expression in black sections, women's sections and so on. In practice, activist voices tend to substitute for the actual experiences and concerns of the various groups. This kind of vanguardist politics takes a different form today, partly as result of changed social and political conditions, but also because of the changing means of communication and organising.

Rather than a social movement, Corbynism should be understood as a network, with a variety of horizontal and vertical characteristics. The former consists of a large and loose association of supporters who function largely as an army of clickivists who aggressively defend the goals of the project and the authenticity of the leader, while consigning those who dissent to some beyond the pale category (Blairite, Red Tory, traitor etc). Abuse is not an inherent feature of those attacks, but the ideological and personality-driven character of the project tends to encourage it. Indeed, the leader-focused nature of Corbynism "testifies precisely to the lack, the weakness, of the "social movement" of which he is the supposed avatar".

The speed and reach of such forms of networking are facilitated by the growth of social media. Such efforts have been conceptualised and popularised by Paul Mason, who has transferred his belief that the agency of social change in a "postcapitalist" world is the ‘educated networked individual’ to the distinctive nature of Corbyn party/movement hybrid. Something different is clearly happening with such networking, but as has been widely observed, the effectiveness of horizontal organising to effect lasting political change has been exaggerated and the tendency to act as self-referential cultural echo chambers vastly under-estimated.

As for the vertical, this is represented by the core team around the offices of Corbyn and John McDonnell and through the factional organisation of Momentum. Their focus is party building, albeit dressed up in the language of social movement. Circumstances have combined to offer the hard left a unique opportunity to capture a social democratic party machine. There is a genuine though mistaken belief that institutional capture will lead to a broader institutional transformation. This does not mean that Momentum should be characterised as a "mob" or a plaything of Trot entrists. Momentum brings together a large number of committed activists understandably fed up with the narrow and timid nature of Labour in particular and politics in general. Some of their party building can help revitalise Labour at local level, though at the moment there is little evidence of substantive participation in campaigns on the ground.

In a recent Guardian piece, Ellie Mae O’Hagan takes critics of Corbynism to task: "There are not enough delusional Leninists in Britain to make up the entirety of Corbyn’s support – these are only ordinary British voters who want radical solutions to a growing number of crises". The first observation is certainly true, but the second is deeply misguided, though all-too typical. As the MP Richard Burden aptly notes, "We stop thinking about how we connect with 'the people' and start to think of ourselves as 'the people'. And as we do that, we get into the politics of the echo chamber where the voices we hear are those we want to hear".

It is sometimes said that Corbyn and co are not interested in winning elections. I don’t think that is true. The problem is that their double confusion between party and movement and party and public means that they don’t know how to. Instead of winning over the electorate, they will carry on accumulating members, waiting for some illusory tipping point where mass party becomes mass appeal. In the wake of a decisive general election defeat – for that it is what is overwhelmingly likely to happen - they will have the party, but Labour as a national electoral alternative and agent of potential social transformation will be finished for the foreseeable future.  

This piece originally appeared in Renewal.

Paul Thompson is Professor of Employment Studies at the University of Stirling and was a founding editor of Renewal.