Long, hot summer on the docks

It is was not just what the judgment said, it was also the way that it said it. Lord Justice Simon Brown and Mr Justice Popplewell, sitting in the Queen's Bench Divisional Court, yesterday delivered their verdict on those ports and authorities that had stopped their facilities being used for live animal exports. The terms in which the judgment is couched make it one of the most political in recent legal history.

The port of Dover and the Coventry and Plymouth local councils, said the judges, had no right to bar a legal trade. In seeking to do so they had consulted only their own parochial interests, without considering the economic impact upon farmers. Dover, in particular, had taken "a surprisingly narrow and short-term view of its responsibilities".

There are some complex issues here. It is not a lot of fun to be banned from facilities that you need to carry on your legitimate business. Arbitrary use of commercial power to restrain the lawful trade of others is, in almost all cases, a bad thing.

But it does happen - the law permits it. Many businesses are routinely allowed discretion about who they do and do not serve. Pubs, clubs, banks and insurance companies can all tell customers they don't fancy to take a running jump. A squint, an illness, a bad smell or jilting the landlord's daughter may be the reason for a ban - but the company need not disclose it.

Clearly the judges did not accept that ports should be allowed such discretion. Nor did they believe that serious damage to port business would result from a failure to ban animal exports. The police had enough powers, they judged, to stop protests against live exports resulting in commercial loss to the ports. They completely rejected all contrary arguments.

Why? Mob rule, that's why. "Tempting though it may be ... to yield to threats of disruption [authorities] must expect the court to review any such decision with particular rigour", thundered the judges, "public authorities must beware of surrendering to the dictates of unlawful pressure groups". Indeed, they have an active responsibility not to.

Judges have long had problems with protest. To an elderly man in a wig, one group of people chanting and pushing looks very much like another. From Grunwick to Greenham, from Grosvenor Square to Shoreham, the fear has always been that a minority would gain through lawlessness what they could not achieve through legal means. The next stop would be anarchy. It is in many ways a respectable fear.

But fear makes bad law. Is lying down in front of a lorry really a close relative to riot? Are the middle-aged burghers of Brightlingsea and the pensioners of Shoreham attempting by use of violence to subvert democracy? Was Plymouth council, as Lord Justice Brown asserted, ordering its own port authority "to surrender to mob rule"? Or was it responding to legitimate protest and local public opinion? Is animal export not a case in which public sensibilities have been offended, resulting in considerable strength of feeling?

Whether their final decision was right or wrong, the judges should have shown more sensitivity to the real dilemmas facing the ports and to the moral anger and comparative restraint of the protesters. By their sweeping condemnation of the protests, they have demonstrated the wide gulf that exists between sections of the judiciary and much of public opinion.

The judgment means that battle will now be joined to get Parliament itself to legislate to end the live animal trade. It looks set to be a long, hot summer on the docks.