Article
Comment
Justice
5 min read

Facing up to justice

The crimes and sentencing of baby-murderer Lucy Letby is driving fresh conversations about justice. Edward Smyth examines the confusion and contradictions within them.

A writer and speaker in the field of criminal justice and faith, Edward Smyth is now pursuing doctoral research on the 'through-the-gate' experiences of individuals who have found faith while in prison.

A prisoner looks into the camera.
Lucy Letby's Police file photograph.
Cheshire Constabulary.

‘Christians need to be ready for the inevitable moment when Lucy Letby declares that she’s found Jesus in prison.’  

So read one of many tens of thousands of tweets posted on the day Letby was sentenced to spend the rest of her natural life behind bars. I probably saw several hundred of those tweets that day; yet this one has lingered, niggling away at me whenever my mind is drawn back to a consideration of the appalling facts of a case that surely takes its place amongst the worst ever to have been prosecuted in this country.  

One of the things about the Letby trial which has caused the most consternation has been her refusal to appear in court for some of the verdicts, and for her sentencing hearing. The strength and volume of the response to what is being almost universally termed her ‘cowardice’ has some challenging things to say about what contemporary society means – or thinks it means – when it talks of ‘justice’. And, as I write, the Government’s response has been to force criminals to appear. An interrogation of these responses might just help us all begin to be able to think through where this leaves us, too.  

The sense seems to be that in refusing to enter the dock at Manchester Crown Court for her sentencing, Letby has somehow evaded what we might term her ‘just deserts’; and that her victims and their families – and indeed society – have been cheated out of some of the justice to which they feel entitled. If the act of receiving the sentence is viewed as itself part of the punishment (not an assumption by which I am wholly persuaded, but one which sits at the heart of this argument) then the outrage caused by Letby’s avoidance of her sentencing speaks to a certain weighting of the importance of that one morning in court as against the next forty or even fifty years Letby will spend in prison. What this boils down to, then, is retribution pure and simple. We think offenders should be made to listen to the impact of their offending because we want them to feel all the things that we believe they deserve: guilt, shame and pain. We want this because of some innate, deep-rooted sense of balance and fairness which dictates that an appropriate response to the imposition of pain is, in turn, the imposition of pain.  

Our legal system exists, in part, to ensure that this remains proportionate: the state censures offenders to avoid the inevitable disproportionate vigilante or retaliatory action which would otherwise ensue, exercising what some criminologists refer to as its ‘displacement function’. Prisons, of course, are out of sight and usually out of mind which perhaps explains the importance of the sentencing hearing in cases like this: it is the only opportunity we have to see the convicted person suffer – and we need to see it with our own eyes to make sure that, even if we think ‘prison is too good’ (i.e. insufficiently painful), we have at least seen the convicted person suffer some pain. 

Letby may have avoided being deluged by the waters of justice rolling down upon her ... in the dock, but we should be in no doubt that those waters are rising from the floor of her prison cell as we speak.

For Christians, though, the elephant in the room is that Letby has been sentenced to a ‘whole life order’. In passing that sentence the state is saying ‘we have no interest in your rehabilitation’; and that is something which should give all pause for thought especially Christians. I do not think there is a ‘correct Christian response’ to this issue, as it happens: personally, I would rather we didn’t have whole life orders, but equally I have no objection to someone spending the rest of their life in prison if that is the only safe course of action. If we were designing a Christian system of criminal justice, then whole life orders would be indefensible on the grounds that we have no right to make impossible redemption; but we’re not designing – or operating under – a Christian system of criminal justice; and redemption in the theological sense is still possible in prison. I struggle – particularly in light of cases like this one – to get too worked up about it.  

But perhaps that’s the point. Perhaps the fact that my own theology opposes whole life orders but, when exposed to the facts of a case like Letby’s, I find it difficult to care very much is exactly the kind of confusion and contradiction of which I spoke at the outset of this article. And in that confusion and contradiction perhaps we find what it is to be a Christian, our instinctive and culturally conditioned human responses coming up against the teaching of the ultimate countercultural being and, so often, overwhelming it in our hearts.  

Those hearts ache for the victims of Lucy Letby and their families. Have they received justice? She will spend the rest of her life in prison: I think they have. Is that justice compromised because she did not appear for her sentencing? I think it is not, on both secular and Christian grounds. Secularly speaking the state has performed its ‘displacement function’ and the punishment is being carried out whether she was there to hear it or not. The victims have – for better or worse – been removed from the conversation, which is why criminal cases are listed as ‘The King v. ...’ rather than ‘[Victims’ names] v … .’ Theologically speaking Letby may have avoided being deluged by the waters of justice rolling down upon her (as Justice is described in the Bible) in the dock, but we should be in no doubt that those waters are rising from the floor of her prison cell as we speak, and she will be soaked through soon enough. 

The case of Lucy Letby – as with any case of great evil – is a violent challenge.  For the Christian, it is one which can only be met with prayer, thought, and introspection. In short: they must pray their way to their own response. But whilst they are doing that as Christians in an increasingly secular world; a world where the responses that they know their faith obliges them to make are so quickly and easily monstered – I can only hope that they and we find in our Church an institution willing to preach that countercultural, unpopular Gospel.    

'Modern man often anxiously wonders about the solution to the terrible tensions which have built up in the world and which entangle humanity. And if at times he lacks the courage to utter the word “mercy”, or if in his conscience empty of religious content he does not find the equivalent, so much greater is the need for the Church to utter this word, not only in her own name but also in the name of all the men and women of our time.'  
Pope John Paul II 

  

Essay
Comment
Identity
Nationalism
Politics
15 min read

Could a constitution capture the essence of Englishness?

A proposal for St George’s Day.
A St George's Cross flag flutters on a tower.
St Helen's Church, Welton, Yorkshire.
Different Resonance on Unsplash.

Somewhere behind the concrete-and-glass façade of modern official Britain, one can still find some traces of England: folklore and folk music, country customs and local traditions – wassailing, maypoles, cheese rolling and bounds beating – that neither brutal 19th century industrialisation nor callous 20th century deindustrialisation could completely erase.  

This idealised ‘Quaintshire England’ lurks somewhere in the psycho-geographic triangle formed by Anthony Trollope’s Barchester, Thomas Hardy’s Casterbridge and Geraldine Granger’s Dibley. It is always indeterminately, reassuringly, old. It has a lot of past, but not much future. Yet its traditions are neither stagnant nor dying. Take, for example, the recognition of St George’s Day. Once upon a time, and not so very long ago, St George’s Day came and went with hardly anyone noticing. It was relegated to handful of nasty, shaven-headed, right-wing cranks. Now St George’s Day is marked by respectable newspapers and by the media classes, through the annual ritual of the Great Debate About Englishness.  

For those not familiar, the Great Debate About Englishness takes the form of a stylised conflict between two sides: the Guardians and the Telegraphs. The Guardians start, with a stick-knocking assault on Saint George and all his works: he was Turkish (or, better still, Palestinian); he never visited England (which is just as well, because, as they are eager to insist, England does not really exist anyway, and if it did it would be hopelessly white and racist). Then the Telegraphs move forward, with Scruton bells on their toes, to lament the fact that we no longer celebrate St George, and how all the ills of the world are the fault of the kind of people who say ‘Mumbai’ when they mean ‘Bombay’. At this, the Guardians caper forth, wielding Billy Bragg quotes about ‘progressive Englishness’ in an intricate manoeuvre known to afficionados as a ‘Full Toynbee’. This done, the Guardians retreat before the onslaught of the Telegraphs, who counter-attack with the clincher than English is an ethnic marker, which necessarily excludes anyone whose ancestors were swarthier than a Flemish Huguenot. So concludes the ritual, which is then forgotten about until the following year. 

England, becoming everything, has thereby become nothing. It is the only nation in the United Kingdom without a political life of its own. 

These cathartic ritual confrontations rarely acknowledge that debating the nature of Englishness is itself a symptom of the English nation’s statelessness. Like Kashmiris, Kurds and Uyghurs, the English must debate the nature of their existence because England is – to borrow the term used by Austrian Chancellor Metternich to refer to pre-unification Italy – ‘a geographical expression’.  

The institutions, symbols, and icons of political identity are all British. Despite its historical position at the core of the Union and the Empire, England remains a curiously under-developed nation in constitutional terms. It has almost no formal recognition as a national community. Indeed, England’s dominance over the United Kingdom has had the paradoxical effect of denying England – as England ­– a voice in its own affairs. England, becoming everything, has thereby become nothing. It is the only nation in the United Kingdom without a political life of its own. There is no English Government, nor English Parliament. Even the banal markers of national identity that people might have in their pockets, like coins, stamps, and passport, are British, not English. The absence of such markers means that English identity has high barriers to entry. In other words, we obsess about the ethnic and cultural boundaries of Englishness, because there is no English civic, legal, or political community – let us call it a ‘constitutional community’ – of which one can be a member as a matter of legal right.  

Such a ‘constitutional community’ could take two forms. It might take the form of an independent England, re-founded as a nation-state after Scotland, Wales and Northern Ireland have freely gone their separate ways. Alternatively, given the need for collective defence and international clout in a dangerous world, it could take the form of an England which remains one of four constituent states in a voluntary, equal, confederal Union.  

Either way, an English constitution, understood as a codified supreme and fundamental law, should establish political institutions of England’s own: an English Parliament, an English government, an English judiciary, and an English civil service. Only by this constitutional means can England, now that the British Empire is no more, become a normal nation, make peace with itself, and re-find its place in Europe and the world.  

In part, this is a matter of good government. As the great post-war Commonwealth constitutional scholar Sir Ivor Jennings famously put it, ‘A Constitution is but a means to an end, and the end is good government.’ An English constitution would enable the renewal of a system of government that has become too centralised, too top heavy, and long overdue for reform. It would clarify the rules of political life where these have become contested, reinforce the boundaries of power where these boundaries have been pushed to breaking point, and restate the principles of public ethics which have been neglected. It would protect democratic institutions and norms from erosion by unscrupulous authoritarian populists.  

A list of priorities for consideration in an English constitution, enjoying support across the broad centre of the political spectrum, might include devolution to English cities and counties, electoral reform, reform of the Lords, codification of parliamentary conventions to limit the abuse of Crown Prerogatives, strengthening of the civil service and rebuilding of lost state capacity, restoring standards in public life, and better protection of civil liberties.  

If you are reading this in England...  you are probably not very far away from a place where old stones echo with the words and songs, the faith and the prayers, that have held the English nation together. 

Yet constitutions are more than dull, dry, legal charters of government. They are also national covenants. They set out a vision of who we are, who we want to be, what we stand for, and what we will not stand for. Aside from all the mechanical, institutional, provisions one expects to find in a written constitution, constitutions also contain what we might call metaphysical provisions: those that bear the identity, and bare the soul, of the nation. An English constitution would help to anchor English identity in the midst of changing times. 

While the mechanical constitution is in need of reform, England’s ‘metaphysical constitution’ is not so lightly to be tinkered with. It represents a mystical union of past, present and future, embodying an idea of English nationhood – and English statehood – stretching back to Anglo-Saxon times. At the heart of this metaphysical constitution is the ideal of Christian monarchy, institutionalised through constitutional relationships between the church, state, Crown and nation.  

While the institutional structures of the mechanical constitution are British – and essentially imperial, rather than national, in character – the metaphysical constitution has remained steadfastly English. The Church of England is the only major all-England public institution. The General Synod, which has power to enact Measures having the force of law in England in relation to ecclesiastical matters, is the only England-wide legislative body. England (not Britain, nor the United Kingdom, nor the British Empire, but something older and deeper) can most readily be found in its great cathedrals: Salisbury, Norwich, Wells, Lincoln, Ely, Gloucester, Hereford, Durham. It can be found, too, in the abundance of ancient village parish churches with hand-tapestried hassocks, musty smells, memorial plaques and an almost tangible presence of congregants gone by. England is etched in the moss and lichen of their old gravestones. It is haunted by the Ghosts of England Past, speaking the words of the Book of Common Prayer and the King James Bible. If you listen carefully, you can hear them. If you are reading this in England, even in the midst of a busy city, you are probably not very far away from a place where old stones echo with the words and songs, the faith and the prayers, that have held the English nation together over the centuries. 

Confusion arises, however, from the failure to distinguish between the mechanical and the metaphysical aspects of constitutions. 

That heritage is valued not only by Christians, but also by those who are not believing or practising Christians, but who are pleased to belong to a culture that has been shaped by Christianity. Cutting the Church totally loose from the state, by disestablishment, would abandon custody of this cultural and social heritage to a merely private organisation, having no public recognition, patronage, or connection to the national community. That would be a particularly savage form of cultural privatisation. 

England’s metaphysical constitution is mostly buried beneath the accumulation of ages. If you are good with the constitutional trowel, however, and know where to dig, it is not hard to unearth it. Sometimes it even pokes above ground, as easily seen as the billowy bench of bishops in the House of Lords. The topsoil of modernity is dramatically stripped away at the coronation, when the king swears not only to govern ‘according to the statutes in Parliament agreed on and the Laws and Customs of the same’, and to ‘cause law and justice in mercy to be executed in all [his] judgments’, but also to ‘maintain the laws of God, the true profession of the gospel, and the Protestant Reformed Religion established by law’. The King’s covenant with God and the nation is outwardly and visibly signified when, at the climax of the ceremony, he is anointed, by the Archbishop of Canterbury, with holy oil.  

Thus, the descendants, according to the flesh, of Anglo-Saxon kings, become at their coronation the descendants, according to the spirit, of David and Solomon. The birth of this metaphysical constitution can be traced to the baptism of King Aethelbert, the first Anglo-Saxon king to become Christian. As Bijan Omrani notes, in God is an Englishman, this act transformed the nature and expectations of English kingship, from pagan warlordism to a holy kingly office, responsible under God for bringing God’s peace and justice to England.  

All this is very strange, and easy to mock. To paraphrase a famous scene in Monty Python’s ‘Holy Grail’, ‘supreme executive power derives from the confidence of the House of Commons, not from some farcical aquatic ceremony’. From a purely mechanical point of view, that is of course quite right. As Walter Bagehot’s The English Constitution said of Sir Robert Walpole, the first modern Prime Minister, ‘he ruled England because he ruled that House’. Confusion arises, however, from the failure to distinguish between the mechanical and the metaphysical aspects of constitutions. Many constitutional conservatives, eager to uphold the metaphysical constitution of England’s Christian monarchy, set their face against even moderate and beneficial reforms to the mechanical constitution. On the other hand, many constitutional reformers, eager to mend the broken mechanical constitution, would pave over the metaphysical constitution with all the misplaced zeal of a solar farm company. 

The established church is a particular target of the reformers’ wrath, evidenced most recently by a proposed amendment to the House of Lords (Hereditary Peers) Bill, seeking to remove bishops from the upper House. According to Lord Birt, former Director-General of the BBC, ‘Embedding the Church of England in our legislature is an indefensible, undemocratic anomaly.’ There are only two countries in the world, so we are informed, where clerics sit of right as legislators: the United Kingdom and Iran. The clear implication is that this connection puts the United Kingdom in bad company, as if having a couple of dozen bishops in the House of Lords were comparable to the rule of Ayatollahs. 

Incidentally, remarkably incurious of comparative practice, the people who say this always forget about Belize: a relatively stable and well-functioning Westminster Model democracy, whose tiny upper House includes a Senator nominated by the Belize Council of Churches and Evangelical Association of Churches. They also forget about tiny Tuvalu, a democratic Commonwealth Realm in the South Pacific, where the established church was planted by the London Missionary Society. Perhaps these examples do not fit the narrative that insists that church establishment must inherently be regressive and anti-democratic. 

To those of us who must live also in the here-and-now, not only as Christians but also as citizens of a particular nation and polity, it all looks very bleak.

Even without deliberate abolition, we must nevertheless admit that the metaphysical constitution of England, no less than the material constitution, is in crisis. The most recent census showed that, for the first time since the conversion of Anglo-Saxon England, Christians are now a nominal minority. Of course, the invisible church of born-again Spirit-filled believers was probably always a minority of the population, in England as in any nation. Nevertheless, from the Early Middle Ages until just a few generations ago, nominal Christianity was the norm, and Christian ideas held sway over the narratives, ethics, and assumptions of English society. Not everyone conformed to a model of Christian holiness and goodness – far from it – but there was a common view, shaped by the pervasive cultural, social, and educational influence of Christianity, of what holiness and goodness looked like

That Christian consensus is what has been lost in the social and demographic change – some might call it, a cultural revolution – since the 1960s. The Church of England is still doing excellent work in parishes up and down the land, multiplying the loaves and fishes of its limited resources to provide everything from foodbanks and debt advisory services to parent-toddler groups and pensioners’ clubs, filling the social gap that a failing state no longer even tries to fill. Yet, numerically, the Church of England – except in a few bright pockets of revival – is in free-fall. In the lands of St Ethelbert, St Edmund, and St Cuthbert, empty church buildings have been turned into private houses, gyms, carpet warehouses, soft play centres, mosques, pubs and nightclubs. Looking at things through a spiritual rather than natural lens, we should not be discouraged. We can of course have confidence that the risen King has triumphed, is triumphing, and will ultimately triumph – reconciling all things to the Father, and restoring the whole cosmos to glory. Nevertheless, to those of us who must live also in the here-and-now, not only as Christians but also as citizens of a particular nation and polity, it all looks very bleak. It is a spiritual trial, but a civilisational tragedy. 

Christianity – in particular in the form of mainline Protestantism - has provided the moral, ethical, sociological and institutional props on which constitutional democracy in the Anglosphere was built. Remove those props, and the whole edifice becomes a lot less stable. When we look at the egregious behaviour of Trump and his ilk, we get a taste of how rotten pagan politics would be, unseasoned and unpreserved by the salt and light of Christianity. 

This is, of course, is not to say one cannot have democracies in societies where Christianity has been less historically prevalent. Democracy can exist in a wide range of religious cultures, including in majority Muslim, Hindu and Buddhist societies. Nevertheless, at least within the Westminster Model, it depends upon an institutional subculture - a set of norms, values, traditions, expectations - which, even if successfully transplanted and adapted to different contexts, owe a lot to the kinds of Christianity that emerged from the English Reformation. The restoration of England’s Christian metaphysical constitution is, therefore, integral to restoring the health of the democratic mechanical constitution. By the works of the law – even constitutional law – shall no flesh be justified. Any constitutional refoundation of English democracy worthy of the name must be led and accompanied by a revival of the English Church and by the re-evangelisation of the English people.  

The cross atop the crown represents the principle that public authority has itself been humbled and crucified; the state exists not to be served but to serve the public

his case must be made with careful nuance. It could be misconstrued as an apology for Christian nationalism. Sadly, those who make the most noise about ‘Christian values’ all too often seem, judging by their attitudes and actions, to be reading a different gospel – one from which the Magnificat and the Sermon on the Mount have been expunged. It is galling to watch far-right authoritarian reactionaries parading their Christianity for public display, while pursuing compassionless policies that hurt the poor, the disabled, and outsiders.  

A restoration of England’s Christian metaphysical constitution would not limit freedom of religion, nor diminish the equal rights of all citizens regardless of their religion or lack thereof. The principles of religious liberty and non-discrimination, which go back to Catholic Emancipation and to the repeal of the Test and Corporation Acts in the early nineteenth century, should be guaranteed. Rather, establishment would simply give honourable public recognition to the place of Christianity in the nation’s heritage, grounding the state upon a core of shared Christian values, norms and traditions. If that core is maintained, tolerance and diversity can be built upon it, without undermining the nation’s historic character. In practice, this might involve a more prominent role for Christianity in public life. Public authorities might pay more attention, in their official pronouncements, to the church calendar, and less to those of other faiths, or of post-Christian causes. There might be a more obvious Christian influence in education. One of the by-products of the 1960s cultural revolution is that the clergy have retreated into a narrowly defined churchy role: the academic and the school master in holy orders have all-but vanished. Public broadcasting, too, might return to the broadly Christian assumptions of Lord Reith.  

One of the constitutional functions of an established church is to act as a reminder: to remind the King, Ministers, parliamentarians, civil servants, judges, magistrates, councillors, police constables, teachers, opinion-formers, and every citizen, that to govern is to serve. The cross atop the crown represents the principle that public authority has itself been humbled and crucified; the state exists not to be served but to serve the public. Without such a concept of ethically responsible servant leadership – grounded upon truth, justice, and compassion – democracy can easily deteriorate into cruel, crude, and crass populist perversions of itself.  

Another constitutional function of an established church is to remind us what freedom is for. If applied as mere abstractions, shorn from the Christian root from which they have sprung, and the teleological objectives towards which they point, human rights – valuable as they are – can produce absurd results, actually harming, rather than protecting, freedoms of conscience and expression. Taking the metaphysical constitution seriously again would certainly mean interpreting and enforcing our human rights laws in ways congruent to the Christian principles upon which they are based. After all, it is very odd, in a country where the king has sworn to maintain the true profession of the gospel, that people are being arrested for silent prayer, and that local councils are trying to ban street evangelism. 

Finally, the metaphysical constitution, no less than the mechanical, needs checks and balances. The church cannot perform this constitutional function, as the ethical conscience of the state, if it is – like, say, the Russian Orthodox Church – dependent upon the state. The establishment of the church must not, therefore, compromise the autonomy of the church, to govern itself synodically, and to choose its own bishops. The current process of episcopal selection through the Crown Nominations Commission might leave much to be desired, but going back to the days of political appointment by the Prime Minister is not a viable option. Rather, the principle should be acknowledged, at a constitutional level, that – in the words of Magna Carta - Anglicana ecclesia libera sit: the Church of England shall be free. If we can create constitutional rules that enable judicial independence, and the impartiality of bodies such as the Electoral Commission, we should be able to square this constitutional circle, too.