Administrative Law

‘Gnaeus Pompeius Magnus’ (‘Pompey’ or ‘Pompey the Great’)

Harry Perrin (Independent Scholar and Trainee Solicitor)

It wasn’t all yo-ho-ho and a bottle of rum for the Ancient Romans when it came to pirates. By the fourth decade of the first century BC, Plutarch tells us, the pirates were so prevalent in the Mediterranean that ‘all navigation and all commerce were at a standstill’ causing resource shortages and volatile food prices. ‘Roman supremacy’, Plutarch continues, was ‘brought into contempt’ not only by the pirates’ ‘seizures of high ranking officials, and the ransoms which they demanded for captured cities’, but by ‘their flute-playing, their stringed instruments, their drunken revels along every coast.’ Evil crimes indeed.

The way in which the Romans dealt with the problem tends to spring to my mind whenever our country today is faced with situations billed as ‘emergencies’ or ‘extraordinary’.

The constitution of the Roman Republic in the first century BC was designed so that no one person could amass too much power over too prolonged a period: ‘an elaborate set of precautions against the accumulation of executive power in a single person’, notes Eric Posner, ‘to prevent the recurrence of monarchy’. There were two heads of state, the consuls, who held office for one year. The post which a consul would typically hold afterwards, the proconsulship – governing a foreign province in the Roman territories – was also limited in term to one year to prevent an already powerful individual accruing too much military might away from the watchful eyes of Rome.

If you are a fan of irony, you may already have spotted that from this Republic’s careful constitution sprang one of the most powerful empires we have known. Note also that Sulla, a constitutional reformer who tightened many checks and balances in 81BC (including limiting the proconsulship to one year), did so when he himself was holding dictatorial power on the basis of an emergency; and note the lex Gabinia.

One hundred and twenty thousand infantrymen, five thousand cavalrymen, five hundred ships, and the right to appoint twenty four powerful lieutenants, were among the resources allotted to Pompey by Gabinius’ law, passed in 67 BC, to combat piracy in the Med. In terms of territorial command, Plutarch notes that Pompey’s power over the sea and mainland areas up to fifty miles inland meant that ‘there were not many places in the Roman world which were not included.’ He had not only ‘the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone.’ So much for the elaborate system of checks and balances.

Unsurprisingly with these resources Pompey dealt with the problem with incredible speed. Food prices dropped as soon as the lex Gabinia was passed and piracy was quashed within three months.

But Pompey did not surrender his power. Another ‘extraordinary situation’ justified Pompey not only keeping his naval command and resources, but being allotted further power over the Roman territory in the East, including the military forces already stationed there, then under the command of his colleagues Lucullus and Glabrio. The lex Manilia was passed to this effect in 66BC. The justification: war in the East, against Mithridates and Tigranes.

It is easy to turn history into linear narratives and morality tales with the benefit of hindsight, and history’s headlines should be questioned and re-questioned for accuracy and fairness. The headline point here is that the excessive accrual of power by Pompey clashed with the excessive accrual of power by Julius Caesar. Caesar crossed the Rubicon, said ‘the die is cast’; civil war, birth of the empire and the rest, as they say, is ancient history.

Headlines are memorable though, and I do remember the lex Gabinia whenever ‘emergency measures’ are proposed today. Take the detention of terror suspects. Until January 2011, the state could detain those suspected of terrorism-related offences, without charge, potentially without even telling them the reason for their detention, for up to 28 days. Unsuccessful proposals went before Parliament to raise this to ninety and then forty two days. The justification for prolonged detention without charge was that the country was in an extraordinary situation, and emergency measures were appropriate.

And were the laws put back to normal once the emergency had passed; once the pirates had been defeated, as it were? The detention-without-charge period was restored to fourteen days, but, as human rights group Liberty points out, this is still high compared with the USA (two days), Italy (four days), Canada (one day) and Ireland (seven days). Many would argue that the danger still exists here, that the pirates have not been conquered. This may or may not be so, but when a so-called extraordinary situation prevails for so long, it becomes the norm – it becomes ordinary – and we should discount any arguments based on the need to deal with an emergency in our assessment of whether laws in question are proportionate.

And take the trials following the summer 2011 riots, where courts sat throughout the night. Keir Starmer, Director of Public Prosecutions at the time, has praised the role of this swift administration of justice in curbing the disorder. Sentences for crimes committed during the riots were on average 4.5 times longer than those for similar offences in the previous year. This is not problematic per se, provided that due process was followed: judges can take account of the context of crimes when sentencing.

More of a concern is that due process was not followed. Solicitors who acted for defendants in the riot trials have voiced concerns, noting knee jerk reactions from judges, ‘conveyor-belt justice’, and a failure to distinguish between ringleaders and followers. A magistrate stated that the usual sentencing rulebook for children with no previous convictions had been ‘torn up and thrown away’.

The justification for the all-night courts was that the emergency in which the country found itself in August 2011 required an extraordinary response. This may well hold water. My concern though, and that of the defence lawyers cited above, is that these measures may have been disproportionate to the extent that they unjustifiably interfered with the defendants’ right to a fair trial.

I acknowledge that had the judiciary and the government failed to deal adequately with the riots, the consequences would have been dire – even more so than they were, and that all-night courts may well have been the best option. And the lex Gabinia may have been the right way of dealing with the pirates. Pompey succeeded where no other commander did. It is easy to point at it now as the beginning of the end of the Roman Republic, but if the pirates had prevailed, we might all be playing flutes and speaking pirate now. Aargh!

I have never been suspected of terrorism or rioting, or even piracy (though I have once exhibited drunken behaviour in a Mediterranean coastal-town). I do however urge the conscientious citizen to assess any proposals which have the potential to infringe on our rights or constitution and to bear in mind the lex Gabinia. Ask the following, because these issues matter to all of us:

  1. Is the measure proposed proportionate to the issue it is proposed to deal with?
  2. Are the reasons for justifying the measure sufficiently closely related to the measure, and if any of these reasons fall away (‘emergency measures’ when the emergency has ceased) is the measure still justified?
  3. Has consideration of the proposed measure been properly weighed up against a consideration of its effects on the constitution and on our rights?

There we have it: the ‘caveat Gabinia’. I have just coined a phrase. Latin scholars correct my grammar before it catches on.