Ministers accused of fuelling conspiracy theorists’ bogus ‘common law’ ideas

Government attacks on judges and lawyers are fuelling distrust of the courts and encouraging bogus notions of ancient “common law” being pushed by conspiracy theorists, according to the Law Society.

The use of bogus interpretations of common law to portray courts, fines and regulations, particularly in relation to the Covid-19, as invalid or wrong is becoming an increasingly common strand across the full spectrum of extremist groups, ranging from anti-vax conspiracy theorists to the far right.

The trend – which draws on non-existent common law and has seen activists handing out fake legal “writs” at schools and hospitals as well as alleging crimes by doctors and journalists – was a factor this week during the harassment of the Labour leader, Keir Starmer, when extremists in viral footage of the incident could be heard yelling at him to “protect the constitution”.

It briefly brought what is a fringe theory into the public eye, and the movement is growing at pace on social media channels, anti-vaccine newspapers and in the real world. Training classes in bogus common law are being held around the country by a range of groups, in some cases run by military veterans who are blending it with training in civil disobedience tactics.

One group is running classes around the country at up to £20 a person to train “an army of common law constables” who are “mandated to uphold constitutional laws” by exercising arrests and attending where the “rights of members are subject to intervention from bailiffs, council employees or police officers and other agencies”. It claims to have trained 850 “constables.”

Beyond the activities of extremist groups, the bogus theories have gained traction among members of the public such as a West Yorkshire hair salon owner who was fined thousands of pounds after attempting to keep her business open during lockdown by putting a sign in the window citing article 61 of Magna Carta.

However, legal figures warned that a number of factors may be fuelling the growth of the bogus theories, while experts on extremism warned of the potential long-term risks for the growth of activism which regarded courts, authorities and the government as illegitimate.

Ellie Cumbo, head of public law at the Law Society, described what was being propagated as a “wildly out of date” notion of the law which had been superseded by the modern court system and civil procedure rules.

In terms of such beliefs taking root, she added: “You might ask whether some government rhetoric around judges, such as during the Brexit debate and the case relating to the prorogation of parliament, has played a role.”

Cumbo cited media coverage such as a Daily Mail headline describing judges during the Brexit debate as “enemies of the people” as well as a description in a Home Office video – since removed – of lawyers providing advice to migrants as “activist lawyers”. The Law Society has said the description was “misleading and dangerous”.

Boris Johnson, who heavily criticised the supreme court in 2020 after judges ruled that his decision to suspend parliament was unlawful, has also previously claimed delays in the criminal justice system should be blamed on “lefty human rights lawyers”.

Cumbo suggested that a programme of civic and constitutional education in schools, universities and adult education – recommended by the independent Human Rights Act review – could help to counter distrust and the fake interpretations of the law.

However, others voiced concerns about the language used by politicians and the media. Sailesh Mehta, a barrister who also sits as a part-time crown court judge, said attacks on the rule of law were a worrying trend, including the vilification of judges, lawyers, the law and political opponents.

He added: “A relatively recent variation has been an unjustified denial of the applicability of some laws and a reliance on ancient outdated laws (or even a made-up law) which the protester prefers to be bound by. If enough people subscribe to this pick-and-mix approach to law, then there will be an erosion of the rule of law which binds all democratic societies together.”

Tim Squirrell, the head of communications at the Institute for Strategic Dialogue, said the modern bogus common law movement had roots in US sovereign citizen movements, making its way to the UK via Canada. It had two strands, one revolving around resistance to the state and another focusing on pseudo-legal litigation to avoid paying income tax or debts.

“It can boil down to a claim that by a clever sleight of hand you can get out of everything and that is really resonant with a lot of the conspiratorial thinking around Covid, that the vaccine is fake, lockdown is illegitimate and there is a duty to wake others up.

“But concerns about it come along two lines. One is around the direct action in the form of harassment of politicians and others, citizens arrests and a pseudo-legal framework. If people believe they are vested with the power of the law then it can lead to them believing that they can enforce it.

“Secondly, there might be less worry in the UK that the whole movement could turn violent, but there is always the potential for individuals who act, whether by citizens’ arrests or something else. Wherever you have real conflict with the state there is also the potential for the creation of a martyr, particularly in a febrile political environment.”

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