Sunday National, 1st November 2020.
Wherever she is, the Iron Lady must be birling. This week, John Scott QC – one of Her Majesty’s Counsel, learned in law – recommended that hundreds of men caught up in the miners’ strikes of the 1980s should be officially pardoned. The Scottish Government has accepted those recommendations, and is now looking into the detail of how wipe these convictions from record. Maggie’s ghost will be keening. Let her wail.
Whatever your politics, the 1980s miners’ strike remains an iconic moment in Britain’s political and industrial history. Whether you mainly see it as a trial of strength between the Tory government and the country’s trade unions, a story of industrial change callously handled, of a Labour leadership posted missing, of a UK government, on the pretext of law and order, turning police cavalry on their industrial opponents, of communities rising up to protect their livelihoods and futures, only to be left to pick over the aftermath of the police cavalry charges, the prosecutions, the unsympathetic sheriffs, and the sackings which followed – the Miners’ Strike continues to resonate profoundly for many Scots who lived through it, and Scots like me who were raised in the politics, and society and economy it left behind.
For those of us who didn’t live through the industrial unrest of 1980s, it is sobering to realise the police operation to counter these strikes was on no small scale. The Scott report finds that the “operation of the criminal justice system affected a surprisingly high number and percentage of striking miners.” With approximately 14,000 on strike, by the conclusion of the industrial action, as many has 1,400 had been arrested and over 500 convicted, whether by plea of guilty or after trial. That’s 10% of the entirely mining workforce in the whole nation – at some point – finding themselves in police custody.
We hear these human voices in the Scott report. They are loud and they are compelling. The report describes the “grossly excessive” punishments inflicted on “many men who had been in no trouble before and none since,” who nevertheless feel “burdened still by the loss of their jobs and good names.”
The review concludes the policing was heavy handed, the justice suspect, the punishments excessive, and the damage to individual lives and community cohesion and confidence in the fairness of policing in this country – already done.
One case which cemented the widespread sense that justice was squinting through her blindfold and
playing favourites was Bradford v McLeod. Fourteen miners appeared in front of Sheriff David Smith in Kilmarnock. Each had attended a picket outside Hunterston in 1984. Each was convicted of breach of the peace. But at a social gathering of his local bowling club, the judge observed that “he personally would not grant legal aid to miners irrespective of the circumstances.” Miners, he claimed, invariably had “no answer” to the charges they faced in his court.
And as the strike unfolded, pulled up before him many of these miners were. They were defended by the Ayr solicitor J.R.B. Penny, who was regularly instructed to act on behalf of members of the National Union of Mineworkers. And critically, Penny had personally overheard Sheriff Smith’s remarks at the gathering of their bowling club.
Penny decided to do something courageous. At risk to his career, Penny called Sheriff Smith out on the bench. Knowing what he had said, how could anyone have confidence in his appearance of independence or impartiality, he asked? When the judge had made plain in private that his mind was closed against miners exercising their right to strike and accused on crime – how could justice be seen to be done?
Black affronted, Sheriff Smith brushed off Penny’s motion and the suggestion his impartiality was in any way impaired, presiding, hearing evidence, and convicting all fourteen men of breach. Not to be discouraged, the lawyer renewed his submissions in the appeal court – who unlike Sheriff Smith –recognised how appalling this looked.
The Lord Justice Clerk quashed all 14 convictions, writing that “it is a tribute to the law in Scotland that there are so few recorded cases where it has been alleged that justice has not been seen to be done.” Judges “like Caesar’s wife must be above suspicion,” he concluded. Ooo-er missus.
But the miners’ suspicions of judicial prejudice didn’t begin or end with Bradford v McLeod. These fourteen men just got lucky, in being represented by a lawyer prepared to breach the old boy’s omerta which says “things said in the bowling club can’t stay in the bowling club.” Others didn’t have a smoking gun to point to.
But it wasn’t just the judges. It was also the legal concepts the courts were using in the 80s which enabled what the Scott report describes as “grossly excessive” enforcement. The modern definition of breach of the peace is “conduct severe enough to alarm any reasonable person and threaten serious disturbance in the community.” That might strike you as vague and sweeping enough – but it
is a picture of clarity compared to the 1980s.
There’s a cynical old lawyer’s joke that when the police can’t work out if the suspect has actually committed a crime – they just charge him with breach of the peace and hope they get lucky in court. But the gag isn’t funny. Breach became, as the courts eventually recognised, a discredited catchall which vividly illustrates the dangers of framing your criminal law in a fast and loose way. Doing so can only empowers police, prosecutors and courts to apply it according to their conscious or unconscious biases – in this context, under the powerful political pressure exerted from the Westminster government.
As Scott starkly lays out, the impact of these convictions “went beyond the men affected, touching their families and communities, both in terms of the financial consequences of dismissal and unemployment, as well as confidence in the police, judiciary and the state.” The report found that the consequences, for many, were also painfully financial. “Dismissals followed in many cases, with pensions reduced or lost and re-employment thereafter difficult or impossible to secure for many,”
compounding a sense of arbitrariness and injustice, with police marching in lockstep with government, courts and law.
But Scott proposes to do something about that. Some of the men who found themselves up before the beak have already passed on, but others survive, and many families survive whose brothers and uncles and fathers found themselves in legal jeopardy for exercising one of the fundamental democratic rights of all working people.
How should we reckon with our history? Recent years keep bringing us back to this theme. What is the right thing to do when we look at the choices made by our political ancestors – in living memory, and outside of it – and see decisions which seem to us today to be materially unfair, materially wrong? Should we shrug off claims of injustice and just tell the survivors “well, it’s all in the past, and things were different then?”
Sometimes in human affairs, the past can leave us feeling bound up, unfree, fighting old men’s wars on frontiers we haven’t chosen for reasons we can’t remember. But the Scott Report is a reminder that you aren’t effacing or denying the past by addressing it. You’re precisely confronting its reality and its consequences.
Every year, I shock my students by telling them that the law continued to regard consensual sex between men as a criminal offence until 1980. In echo of John Scott’s recommendations this week, Holyrood passed legislation which allows men still living under the shadow of these homophobic prosecutions to have these old wrongs pardoned and old convictions disregarded.
We can’t change history, but we can collectively recognise wrongs done and trust shaken. In human affairs injustice, left untreated, has the horrible tendency to turn septic. There can be no order without law, and law without justice.