Much has been said about Kier Starmer’s government seeking to restrict the Englishman’s ancient right to trial by jury. I have thought about this matter for a long time, also in relation to whether I should write about it in public, and I have reached the following conclusions. That whereas I cannot accept the government’s attempt, other people of greater experience and insight (take, e.g., those part of the Criminal Bar Association) have written better about it than I could. Also, the initial form of the legislative proposal has not yet been presented to Parliament, and thus I would be restricted to generalities rather than precise criticisms of maiming that right. Nevertheless, general observations have a useful purpose in assisting you, my reader, reach your own view on the matter. Thus, in what follows I propose to shortly present four factors which, as a matter of principle and not fact, condition the consideration of trial by jury from the constitutional perspective. I suggest that any reform must be consonant with the interlocking principles of efficient justice, constitutional stability, rootedness, and personal character. For myself, I think jury trial is so fundamental to our constitution that it cannot be severely restricted, in the way the government seems to desire, without great damage.
First, is the technical question of efficient justice. By this I mean that considering that justice is the ultimate end of the State, and that the very rudiments of justice are attacked in crime, it is necessary that if justice is to be done it must be done with a level of efficiency. To long delay the execution of justice is to prevent justice altogether from being established in the State for the equilibrium of harmonious relations amongst those governed is not thereby restored. As such, the imbalance, when allowed to gain strength, seriously threatens the life of the State inasmuch as law is the basis whereon the State exerts its authority among the governed. In this connection, it is seen that, to use Blackstone’s word,[1] just as dispatch is needed in the counsels of the Executive so that energy in government allow action to be done when needed, so, analogously, efficiency is needed in the deliberations of the judiciary so that right be done and the State, here and now, exist within a just equilibrium of relations. It thus appears that the function of efficient justice is an essential contribution of the judicial power in the maintenance of national peace. Of course, efficiency is differently grounded from dispatch inasmuch as it does not require a powerful and united Executive but rather processes which do not prolong the period between the commission of an offence, or its discovery, and its punishment.
Thus the first factor when one considers the question of jury trials is that if, as presently existing in England and Wales, they are conducive to the establishment of justice and its fruit of peace in the realm. This is not the only factor, for the antiquity of the right itself requires us to another pertinent matter. This is our second principle, that of the stability of the constitution in relation to its long continuance. Regarding this, Burke observed that, “We procure reverence to our civil institutions on the principle upon which Nature teaches us to revere individual men: on account of their age, and on account of those from whom they are descended”.[2] Indeed, the arguments in favour of the retention of the right have tended to invoke its antiquity and its long association with liberty.[3] Whereas, those seeking to abolish it have undermined the historical narrative associated with jury trial, which, coming from a Minister of the Crown[4] is risky for it undermines the very constitution whereby the State is constituted. For it should be remembered, that the stability of the State depends not only on institutions which work but also on the perception of inherited legitimacy. I submit that this perception is not a mirage, but itself reflects a truth, namely that institutions which have continued for a long time, for centuries, better safeguard the values they are taken to embody. Even damaging the perception can damage the inherence of the value it embodies in the State, for, humans being creatures which rely on narrative to discern meaning, this tends to obscure the existence and therefore the operation of the value in the minds of the people.
The question of legitimacy in the manner we have discussed here touches upon our third principle, that of rootedness. When I use this word, this idea, in relation to the constitution, I am essentially taking up strands in Simon Weil’s The Need for Roots alongside Burke in a manner similar to what I have did in my post on obligations grounding rights.[5] What I mean to say is that constitutional mechanisms do not exist in abstract, but exist in a historically conditioned State. Take the analogy of a natural human person. Such a person lives with certain routines, habits, surroundings, with a certain mental, moral and physical ‘furniture’. To unsettle one of these would be a cause of annoyance or inconvenience, and to unsettle many of them would be to wholly uproot the person from his own self. We are creatures of a certain fixed essence but we are also creatures whose essence exists in time, and our nature is realised in the contingent circumstances of temporality. This explains my statement, otherwise enigmatic, that a person can be uprooted from themselves. Similarly, the State possesses a nature which we may abstractly analyse, and it may indeed have certain ideal forms which philosophy may be able to divine, as writers from Plato and Aristotle to Montesquieu[6] and, more recently, Edith Stein[7] have agreed upon. Nevertheless, the temporality of the State causes it to be realised with different internal structures, customs and ‘technologies’ for achieving the object of justice and its fruits, order and peace. The peoples governed and the officers of the State themselves become used to these particular ways of realising values, and the values become associated with individual methods. Certainly, it seems to me that jury trial has in England at least become strongly associated with liberty and safeguards against arbitrary government. To undo it, and to undo many other particular inherited constitutional modalities, as has been a particular passion of Labour Party governments since the late 1990s, is to uproot the State from itself. That is, to posit abstract notions of right governance and justice which, shorn from the tapestry of historical development, are unsuited to a particular State in a particular place at a particular time.
The fourth factor which I think is relevant in principle to consider jury trial from the constitutional angle is the character of the people administering the judicial power, or otherwise participating in its deliberations (e.g., as jurors). For inasmuch as the State subsists not abstractly but in the particular persons who exercise authority, their character will necessarily affect the proper conduct of the institutions of State. It is very well having jury trials, but if the jurors are influenced by their own passions and not truth in justice, then it would be a safeguard with much of its potency lost. As such, it is necessary to consider whether there are not more fundamental problems in the administration of justice, as regards those persons involved in administering it, which might require some sort of reform. I include this factor for the sake of completeness of my discussion. I hope that these brief thoughts have been of use to you in your own thinking. My view comes through as supportive of the right to jury trial but the principles themselves I have presented so that they may be used from the perspective of a neutral evaluator of the question.
To summarise, the proposal to severely restrict jury trial is not a simple question of swapping out one institutional technology for another. It is rather about what jury trial means in the constitutional fabric of the nation. Reform must therefore be prudent and respect the narrative and constitutional meaning of juries, alongside the aim of efficient justice, all without which the values of our constitution themselves that cannot be effectively upheld.
[1] William Blackstone, Commentaries on the Laws of England (vol 1, Clarendon Press 1765) 243
[2] Edmund Burke, Reflections on the Revolution in France in The Works of The Right Honourable Edmund Burke (vol 3, John C. Nimmo 1888) 276
[3] See therefore Hansard HL Deb. vol. 851 col. 250 (Lord Young of Acton): “Will the Minister condemn the remarks of one of her colleagues in the other place, who smeared defenders of the right to trial by jury as men in suits defending a Magna Carta myth? In fact, the right to trial by jury dates to before Magna Carta, to Henry II, who, I point out, for the benefit of the Justice Secretary, came after Henry I and not before.” The joke in the final sentence is that, as is a common point of ridicule in Britain, on television the Justice Secretary, David Lammy MP, said that Henry the Seventh came after Henry the Eighth.
[4] I mean Darren Jones MP; cf. ‘Magna Carta justifies scrapping jury trials, claims minister’ (The Telegraph, 26 November 2025) <https://www.telegraph.co.uk/news/2025/11/26/magna-carta-justifies-scrap-jury-trials/?msockid=312be14473b762a20b58f79772576385> accessed 31 December 2025
[5] Cf. Simon Weil, The Need for Roots (trans. Ros Schwartz, Penguin Books 2023)
[6] Montesquieu, De L’Espirit des Lois (2 vols, 1st edn., Barrillot & Fils 1748)
[7] Edith Stein, An Investigation Concerning the State (ICS Publications 2006)
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