What if they really are the enemies of the people?

The 'exclusive juridical group' lets its mask slip

The fact that person accommodated in asylum accommodation…from time to time commit criminal offences or behave anti-socially provides no reliable basis for asserting any particular propensity of asylum-seekers to engage in criminal or anti-social behaviour. Persons who are members of the settled population also commit crimes and behave anti-socially from time to time.

Mould J, Epping Forest District Council v Somani Hotels [2025]

During the era which we now look back on with great fondness as the ‘Brexit Wars’, The Daily Mail issued a famous article on its front page in which it described three judges as the ‘Enemies of the People’. This was because these judges had comprised the bench in the case of R (on the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), the ‘High Court’ decision (there is not enough space here to get into the ins and outs of the flagrant lie that the court which issued the judgment could be meaningfully described as the ‘High Court’) which initially found that, in order for the UK to leave the European Union after the Brexit vote, Parliament needed to pass legislation.

We often forget that in life it is possible for both sides in a particular controversy to be wrong. The Daily Mail was, it was fair to say, being sensationalist. There was nothing hugely objectionable about the decision in what is now called Miller One (as opposed to the later Miller Two, concerning the prorogation of Parliament - a travesty which we need not get into). All it did in the end was to emphasise that the guarantor of the rights of the people of the United Kingdom is properly Parliament - a principle of which it is good for people of all political persuasions to be reminded. And it was true also that there was an element of homophobia in the article, which laid strong emphasis on one of the judges, Sir Terence Etherton, being an ‘openly gay ex-Olympic fencer’.

But on the other hand, the reaction that the story spawned was histrionic, silly, and crass: there were media commentators who genuinely tried to portray this bit of provocative editorialisation as indicative of a descent into lawlessness or fascism, as opposed to the rough and tumble of tabloid journalism in a heated political moment. I’ll never forget the Bishop of Leeds feeling it his Christian duty to warn on BBC radio that the affair was reminiscent of things that had happened in ‘Nazi Germany, in Zimbabwe and places like that’, but that was at the milder end of the spectrum. It was as though the propriety of saints or prophets was being questioned: these three ordinary people in wigs were treated as though they had descended from Mt Sinai with stone tablets to hand down holy writ - here is the law! - with motives that simply must not be questioned.

That legal commentators - Lord Neuberger among them - largely fell for all this nonsense was particularly galling. Anybody who has been to law school, certainly at a good university, will have had training in jurisprudence and will therefore know that law, constitutional law most of all, is intensely political. And nobody has ever seriously believed that judges lack opinions or that it is possible for them to be purely objective and merely apply rules in a ‘neutral’ way. Judges are human beings and they have class interests, preferences and desires. Why on Earth should these be insulated from scrutiny?

The ‘Enemies of the People’ headline was therefore a little bit over-the-top, but it was also a sign of health - the media should be holding the powerful and privileged to account, and it is harder to think of three more powerful or privileged people in British society than the Lord Chief Justice, the Master of the Rolls, and a Lord Justice of Appeal who in part owed his stellar career to having been at the same chambers as Tony (and Cherie) Blair. Two cheers for The Daily Mail, in other words - it was doing exactly what it should have been doing, but in a slightly off-colour way.

You may be wondering, though, why I am raising this issue now. Well, the answer relates precisely the point which The Daily Mail was driving at in that story, which is the increasingly fraught relationship between the judiciary and ‘the people’. Ordinary people are gradually becoming aware that something has gone terribly wrong with our judges, and that indeed the judiciary seems to hold ordinary folk in disdain while showing itself remarkably receptive to particular political perspectives. But nobody has been able to put their finger on precisely what is going on - other, I suppose, than that judges, like everybody paid with public money, have become noticeably more ‘woke’ in recent years.

In this post, I’d like to elucidate this point in relation to the recent decision of Mould J, in the Divisional Court, concerning Epping Council’s attempt to get the now-infamous Bell Hotel, currently housing asylum-seekers under a contract with the Home Office, closed. The presence of a large number of young single men from far-flung places in a town like Epping is in itself a problem; factor in the pressure on public services and the disruption caused by protests outside of the hotel, and one can readily understand the Council’s reasons. Readers may remember that I wrote a piece commenting on earlier decisions in this litigation, concerning interim relief. Well, the final decision has now been made, with the result that the Bell will probably remain open in the medium term. Before getting into the details on that, however, I’d like to talk a little bit about the problem of what Alexandre Kojève called the ‘exclusive juridical group’ as a way of framing what follows.

Justice in the universal and homogenous state

Kojève was a Soviet spy and by all accounts a fan of Stalin. But some of his ideas were closer to that of Trotsky. His vision was of mankind being united in a ‘universal and homogenous state’. And he devoted much of his intellectual output to making clear that Justice (he used the capital ‘J’) could only be achieved in such a state. As long as there was more than one state in the world, more than one political order, there could not be Justice properly understood. Justice had to be universal or it could not be actualised; until such a time as the entire globe was under the same order, Justice only existed in potentiality - an idea that could not find expression.

The reason for this is not as complicated as it might sound. Kojève explains that any state is governed by an ‘exclusive political group’, which he defines as any group which is able to suppress or exclude all other groups from government without destroying the state. Clearly, what he meant by this was what has been called a ‘regime’ - an affiliation much broader than a political party or movement, and encompassing the wide range of actors who have similar interests and values and who work to enforce those values throughout society.

Within the exclusive political group, he goes on, there is something called the ‘exclusive juridical group’. This - although he does not put it this way - might be described as that group which aims to realise a particular idea of justice (I will use a small-case ‘j’) and is able to suppress or exclude all other ideas of justice without destroying the state. This group, as with the exclusive political group, is somewhat nebulous; it clearly does not include just judges, but also the police, lawyers, and anybody else whose activities or ideas have a bearing on the conceptualisation of justice which judges hold.

Ideally, the exclusive juridical group will gesture towards Justice. (I will come to what is meant by ‘big-J’ Justice in a moment.) But, in practice, they will only achieve small-j justice, simply because they will always possess their own interests, whether as a class of their own or as part of the exclusive political group. At the very least they will attempt to secure their own position and buttress the position of the exclusive political group. But they are also likely to have other, non-neutral perspectives that derive from their particular preferences, values, tastes, and so on. (And they might simply be corrupt, of course.)

This means, for Kojève, that as long as there is an exclusive juridical group which has its own discernible interests there cannot be Justice. And it follows that the only way to achieve Justice is to ensure that in fact anyone at all can in principle be a member of the exclusive juridical group (or, if you prefer, that said group should disappear entirely). Unless literally anybody could apply the law and have the outcome be the same as it would for anybody else, then it is suggestive that it is personal preferences which are determining outcomes, not Justice. Justice can only be realised when it is impossible for distinctions of any kind - class, race, sex, nationality, upbringing, what the judge had for breakfast, whatever - to have any bearing on the way law is applied.

Two conclusions follow necessarily from this. The first is that since there can only be Justice when there are no distinctions between people, Justice cannot be achieved where there is a world comprising more than one state. (At the extreme, though Kojève does not I think say this, the implication would also be that Justice cannot be achieved where there are two sexes, where there are distinctions based on age, and so on.) This is because, naturally, the ‘exclusive juridical group’ within a state, at least in Kojève’s day, would tend to produce outcomes that are at least designed to maintain the existing legal order in the jurisdiction, and hence would not be motivated by Justice.

And the second is that Justice has to be synonymous with equity - the essence of Justice must be absolute equality of both form and substance. Since any inequality would produce distinctions and frustrate Justice, Justice itself means equity and vice versa. And Justice has no content beyond that - it will only be actualised in complete equality between everybody, everywhere, i.e., in the universal and homogenous state. Only a legal decision which achieves equality is Just, and this can only happen where law is applied purely in the interests of realising equality and nothing else.

Rule-sceptics, fact-sceptics

Kojève was a communist, when all was said and done, so his ideas have to be understood in that context. They sound like the stuff of nightmares in theory and communist legal systems are always the stuff of nightmares in practice. But there is nonetheless something of interest in them, which is what might be called the phenomenological critique of legal realism.

Kojève was writing all of this (in his posthumously published Outline of a Phenomenology of Right) in the very early 1940s. This was a time when legal realism - a series of jurisprudential movements which had emerged separately in the USA, Germany and Scandinavia around the turn of the century - was at its zenith. Put very simply, the realists were of the view that understanding law meant understanding the human beings who made decisions, rather than analysing concepts or principles: judges do not mechanistically apply rules, but give effect to particular values or preferences, motivated by particular incentives. If you can understand what those values, preferences or incentives are then you stand a better chance of predicting what will actually happen in practice, rather than what the law looks like in the textbooks.

Jerome Frank, himself a prominent self-declared realist, divided his brethren into two camps: the rule-sceptics and the fact-sceptics. The rule-sceptics are best instantiated by Carl Schmitt (who Frank, as parochial as all American scholars of his day, did not reference) and his admonition that the ontology of law is in the decision. The rules can say whatever they want on paper, in other words; it is only when somebody has made a decision in light of them that we can say what the law really is. The decision-maker (the judge, in litigation) literally makes the law, because it is he or she who applies it. Hence Schmitt is often described as a ‘decisionist’, but his position was not far removed from those Frank called ‘rule sceptics’. Rules do not really exist except on paper - it is what happens in practice that creates law.

Frank himself was on the other hand a ‘fact-sceptic’. His argument was that, even setting rules to one side, litigation really turns on interpretations of so-called ‘facts’, but these are never clear or objectively presented. Rather, they are themselves parsed through interpretive stances. What happened is never cut-and-dried, but even if it was, the decision would still turn on how those facts are interpreted and which ones are emphasised and which are downplayed. And that is an exercise fraught with implicit value-judgments. The judge does not simply look at all the facts and then make a decision. He or she is presented with a selection of stylised facts, and interprets them through his or her own preferences.

Kojève had not I think read any of the American or Scandinavian legal realist literature (it is impossible to know for sure), although he had certainly read Schmitt. And he was clearly alive to the general critique which the realists were proposing. This was why he was so keen to emphasise that law can never realise Justice until it is the case that values, preferences, interests, and so on do not differ between individuals. As long as there are differences between individuals then the ‘exclusive juridical group’ will not realise Justice, but only justice; that group’s justice will be partial, biased, and what we might call ‘politicised’. Justice can only come about with the ushering in of the universal and homogenous state. Until that time there will not be Justice, but only the incomplete, class-based, parochial justice of a given society’s ‘exclusive juridical group’.

We await with bated breath to discover whether the universal and homogenous state will emerge - you would currently get pretty long odds at the bookies, although it is worth saying that it was even less likely when Kojève was writing, so who knows? But of course it is possible to read Kojève, as they say, ‘against himself’, and take from his thoughts on the matter the message that since there will never be a universal and homogenous state (I will go out on a limb and say as much), then there will never be an impartial form of Justice, but only ever a very partial form of justice. The legal realists, in other words, were to all intents and purposes correct, and we have to reconcile ourselves to the fact that our societies will always have a form of justice that is given effect by an ‘exclusive juridical group’ who do not neutrally or impartially apply a Justice of equality.

This means that we should endorse, because we probably have to endorse, Jerome Frank’s view, which was that since judges are not and cannot be neutral, we should stop pretending as though they could be, and instead ask ourselves what values we desire them to implement. Since the ‘exclusive juridical group’ are going to do justice and not Justice, then what form of justice do we want them to realise?

Well-founded fears or concerns

This brings us to Mould J’s decision in Epping Forest District Council v Somani Hotels [2025] EWHC 2937 (KB), which is particularly useful in illustrating the extent to which the ‘exclusive juridical group’ in Britain of 2025 is dominated by a particular idea of ‘justice’ which we might wish to question, challenge, and overturn or replace.

The decision is in essence one concerning planning control. According to s. 57 (1) of the Town and Country Planning Act 1990, planning permission from the local council is required for ‘development’ of land, which includes, pursuant to s. 55 (1), making a ‘material change’ in the use of buildings. Epping Forest District Council’s argument was that Somani Hotels, the owners of the Bell, had made a material change of use in switching it from a hotel proper to asylum accommodation, and, since they had not obtained planning permission for this in advance, had therefore breached the s. 57 (1) requirement.

The Council’s pleading was therefore for the Court to grant an injunction ordering the Bell to close. There are other enforcement mechanisms available, but these take a lot of time, and the presence of asylum-seekers in Epping was clearly causing so many problems that closure was considered urgent. The Council therefore sought for the Court to exercise its powers under s. 187B of the Town and Country Planning Act 1990, which allows it to grant ‘such an injunction as [it] thinks appropriate’ to restrain a breach of planning control.

This, as you will see, placed considerable discretion (you might even say total discretion) in the hands of the judge. Mould J simply had to decide whether it was ‘appropriate’ to issue an injunction forcing the Bell to close. As is the way of these things nowadays, he did this through an almost nauseatingly long judgment (of 81 pages) containing vast reams of unnecessary copying and pasting from other judgments (Lord Diplock would have penned his decision in less than 10 sides of A4) but the reason is simply stated. Mould J didn’t think it was ‘appropriate’ to issue an injunction because he just didn’t think that the facts were as they were represented by the Council or - more importantly - the people of Epping.

The judge weighed up various factors in determining whether an injunction would be appropriate. But the manner in which he did so, and the selection of what was decisive, provides us with a strong vindication of Frank’s position - namely, that judges never take an unbiased or objective assessment of all of the facts available. He considered the fact that the Council had been rather sloppy and had not followed correct procedure at various stages in the dispute; he considered the fact that the crash barriers the police had placed outside the hotel were unsightly; he considered the fact that the Bell’s transformation into asylum-accommodation interfered with the Council’s development plans for the area which included the presence of a hotel.

But we all know what really mattered in the dispute - why it had been sparked in the first place and why the case had been brought - which was the local reaction to the placing of hundreds of young adult men fresh from places like Eritrea, Ethiopia, Sudan and Afghanistan in the middle of Epping. And this is what the case ultimately hinged on, and where Mould J put the most emphasis, and is therefore where we see the fact-sceptical argument really bite.

The Council presented its own version of the facts in this respect, which were first that the presence of asylum-seekers had put pressure on local services, particularly GP surgeries and social services; second that there was ‘apprehension’ on the part of local people about crime and antisocial behaviour by residents at the Bell; and third that the hotel was attracting disruptive protests.

(I noted with wry amusement that the Council, as squeamish as might be expected about such matters, couched local residents’ fear of crime as arising from the fact that ‘the occupants of asylum accommodation may, due to difficult and/or traumatic experiences they have suffered, have a greater propensity to anti-social and/or criminal behaviour’. I’m as convinced as you are that Hadush Kebatu, the 41 year old Ethiopian asylum-seeker who sexually assaulted a 14 year old girl and an adult woman on consecutive days in July and thereby sparked the protests in Epping, did so only because of ‘difficult and/or traumatic experiences’ he had suffered in the past - the poor lamb.)

Mould J was not, however, convinced of any of this. Yes, he was willing to concede, ‘the ability of local services to cope with the increased demand which a use of land generates’ may be relevant in planning considerations. But the Council had not adduced enough evidence from service providers to prove this. And, while local residents might be apprehensive of crime, the case law suggested that such fears should only be taken into account where they are ‘well-founded’, ‘justified’, and ‘genuine’. If the public are complaining unjustifiably then there is no reason to pander to their demands. Hence, as Mould J put it:

I accept…that there is apprehension and concern amongst members of the local community and local residents about the use of the Bell to accommodate asylum-seekers. I also accept that local residents are fearful about crime. [But] the relevant questions are whether those fears and concerns have a reasonable basis in evidence and whether they can properly be said to be grounded in the use of the Bell as asylum accommodation, rather than the behaviour of a few of the individuals accommodated there since April 2025.

And in his view, local people were just being ninnies. Yes, they may have had a point that three sets of serious crimes (not limited to our dear friend Mr Kebatu) had been committed by residents of the Bell in a short timeframe. But ‘the fact,’ Mould J loftily declared, ‘that persons accommodated in asylum accommodation…from time to time commit criminal offences or behave anti-socially provides no reliable basis for asserting an particular propensity of asylum-seekers to engage in criminal or anti-social behaviour.’ And in any case ‘members of the settled population also commit crimes and behave anti-socially from time to time’. Local residents therefore needed to just, as it were, get over themselves - crime happens.

Moreover, he continued, all of the trouble had just been caused by the criminal behaviour of ‘three individuals’ who ‘happened to have been accommodated at [the Bell]’. And, you see, this did not mean that local residents’ fears ‘may properly be said to be founded in the use of the Bell as asylum accommodation’. That was a separate issue. Yes, three asylum-seekers accommodated at the Bell had committed crimes within the space of a few months; we can all admit that. But none of that unpleasantness was founded in the use of the Bell as asylum accommodation.

Mould J then turned his reasoning to the final issue, concerning protests taking place at the Bell. These, he said, ‘should not carry weight with the local planning authority’. The ‘mere fact of opposition’ was to be put to one side in decisions of planning control. It was ‘no doubt true’ that the ‘provision of accommodation to asylum-seekers is a politically controversial and sensitive’ matter. But that did not make a development itself harmful. People might protest that it is harmful, in other words, but the Council should only concern itself whether it really is harmful. Since the police could handle protests, the Council should stick to the question of whether it was the use of the land that was causing harm - which it was not.

I hope you will have noticed how spurious Mould J’s reasoning is, particularly on the point about local residents’ fears of crime. Three separate crimes were committed in Epping that would not have been committed had the hotel not been used to house asylum-seekers. To say that these crimes were not founded in the use of the Bell as asylum accommodation is therefore pure sophistry. And the argument (often made by members of the so-called ‘intelligentsia’) that since ‘members of the settled population’ commit crimes there is nothing to worry about when asylum-seekers also do so is frankly asinine: that crime currently exists is not a good argument for accepting more of it.

One has to be learned in the law indeed to say things so self-evidently stupid. But the broader point should not be missed. This is that Mould J’s decision in Epping Forest District Council v Somani Hotels can in no sense be described as an application of rules to a set of objectively determined and commonly agreed-upon facts. It is entirely the opposite: it is a decision based on a highly tendentious reading of the facts, which emphasises some (‘members of the settled population’ also commit crimes) and de-emphasises others (‘provision of accommodation to asylum-seekers is a politically controversial and sensitive’ matter). And it is impossible to read it as having been delivered by a judge floating above, and entirely uninfluenced by, preferences, values, and incentives. Rather, it is imbued with all of the values of the ‘exclusive political group’ which governs the UK in 2025 - a kind of knee-jerk, reflexive, almost biological impulse towards ‘current thing’ viewpoints, including a preference for open borders, distaste for the native lower-middle classes, unthinking liberalism, and absolute terror of being labelled a racist.

We are all fact-sceptics now

The decision in Epping Forest District Council is, then, emblematic of precisely the type of critique which the legal realists openly, and Kojève obliquely, were making: legal decisions are made by human beings, and human beings are not neutral. They have interests and ideas; they inhabit a class milieu; they imbibe the values of the culture they inhabit. They do not issue decisions as though they were ‘anyone at all’ - they issue them as members of an ‘exclusive juridical group’ which has its own priorities. (Note in this regard how little emphasis, indeed, Mould J placed on the perspective of people in Epping, who actually have to live with the Bell on their doorsteps, when making his decision; the sense that ‘I know best’ is palpable. The feeling that comes across in his remarks is, if anything, complete disdain for Joe and Jane Bloggs and their petty, ‘ill-founded’ worries and concerns.)

But this is in the way of things: there is no universal and homogenous state (not yet, at any rate) and we live in societies wherein the ‘exclusive juridical group’ is going to issue decisions not on the basis of actualising a perfect Justice of equality between all persons but in light of other concerns. And this is not something we should shy away from but accept and embrace. As Jerome Frank argued, since it is the case that judges are to some degree political actors, we should treat them as such. They are not demigods; they are people. People will err, but they will also become subject to groupthink and narrow-mindedness. We need to behave not as though it would be wonderful if people were not like that, but in acknowledgement that they always susceptible to be so.

This means, in the first place, that we should keep them honest by writing nasty things about them in newspapers, in exactly the same way as we do government ministers. But it also means that we should start thinking carefully about the type of values which we would like them to effect. Do we want it to be the case that we can predict decisions of our judges simply by asking ourselves, ‘What would Ed Davey decide?’ Or do we want them to have other priorities to those which they hold currently? Do we want them, for instance, to attach more importance to securing borders, to protecting UK citizens, to maintaining an existing constitutional order? Do we want them to emphasise deterrence in criminal sentencing over rehabilitation? And so on.

Once we start asking these questions we have to direct our attention to the way in which legal professionals are educated, which is why we are unwilling to do so; inculcating students with particular values is something which we are all reluctant to do. The best riposte to this is perhaps that it is already happening, anyway - often by osmosis. But the most important point to digest is that it will always happen, it will ineluctably happen, and we therefore need to grapple with its implications by facing them squarely rather than behaving as though neutrality is achievable.