Heroes of the People – The Politicisation of the Judiciary

Pete Wishart SNP MP could hardly contain his joy….

He was of course referring to this:

If you are an anti-Brexit believer then you will of course be delighted that the judicary are on your side.  If you are part of the Scottish sub-sect of that faith you will be even more delighted that it was a Scottish court that handed down this verdict – that’s one in the eye for Westminster!     If you are a Brexiteer your sentiments might echo that of the Daily Mail on an earlier judgement.

Of course things could all change next week.  If the UK Supreme Court goes the other way (and no-one knows what they will do – it’s all in the lap of the judges and has as much to do with political opinion as it does with the law) – then those who are currently calling judges ‘heroes’ will cast them as villains and vice versa.  One thing is sure  –  neither The Scotsman nor the SNP will be calling the UK Supreme Court ‘heroes’ if their verdict is different.

In my view both headlines are dangerous and unwise.  The Scotsman’s headline (like the Daily Mails)  is at best injudicious and at worst an outright attack on one of the most basic principles of our democracy – the neutrality and independence of the judiciary.  Judges are not there to be ‘heroes of the people’ (nor ‘enemies) – that is a title reserved for the judiciary in Stalinist, Maoist and Fascist regimes.   They are there to ensure that the law is complied with.  They are not there to make the law – but to ensure it is adhered to.  It is absolutely essential that judges stay out of party politics.

But is that not what has just happened?  An independent judiciary has upheld the law, at the request of citizens, and kept the government within the law.   That is at best a naive view which presupposes that the judges did not have their own political opinions and were not influenced by them.

The judgement itself is fascinating – what stands out for me – apart from the fact that the case was brought by 79 politicians for political reasons,  is that the judges have seen fit to condemn as illegal a process which is being used by an elected government because they are using it for ‘political purposes’.  The judges have judged that the Johnson government have prorogued parliament to avoid parliamentary scrutiny of the executive.  This is undoubtedly partly true – but a partial truth is more dangerous than an outright lie.  The MPs bringing this case do not want to ‘scrutinise’ Brexit – they want to stop it – and they will use every parliamentary trick in the book to do so — including taking the government to court. When the Speaker breaks ‘convention’ and normal parliamentary procedure in order to frustrate Brexit, they applaud him as a champion.  When the Prime Minister does the same they take him to court.

The High Court in Edinburgh and the Court in London both decided that this was a political not a judicial matter. The parliamentarians who brought this case have a political means to deal with a government that they do not agree with. They can have a vote of confidence, remove the government and we get to elect another one. But the parliamentarians do not trust the electorate and so they are using the judiciary. The politicians have the tools – but in an act of supreme cowardice they are refusing to use them.

The supporters of this action – then throw up their hands in horror and cry ‘how dare you?  Don’t you trust the judiciary and our judicial system?’.  In a word – no!    I like every system to have checks and balances and it’s precisely because I do not trust any human institution that I object to any one branch of the State being handed absolute power and treated as gods.

Luke Gittos sums it up well:  Labour’s Brexit spokesman Keir Starmer says the case represents a ‘victory for democracy’. In truth it is the complete opposite. Our country is now effectively being run by judges and lawyers. The decision of the Scottish Court represents a significant incursion by the judiciary into the authority of government, and accordingly over the power of the people.

The Court of Session in Edinburgh and the High Court in London had already decided that the prorogation of Parliament was legal – but those who have the money can continue to appeal – and so this went to the Scottish Supreme Court, and will now go to the UK one – and I suspect could end up in the European Court if the government win.  And there is also another case in the Belfast Court.

This is not in defence of democracy.  This is the negation of democracy.  If you have the money and the power you don’t have to win elections – you just have to get a judge to agree with you at some point.  We are moving towards a system of government where it is judicial opinion and money that matters – more than people. and more than democracy.  Greg Sheridan sums up what is happening nicely…

Remain is essentially synonymous with ruling class and that Brexit represented an assault on the prerogatives of this ruling class. This class has infinitely more weapons, and almost infinitely more skilled information managers and bureaucratic insiders, to mount its battles than the amiable but unfocused democratic majority that voted for Brexit.

So, Caldwell says, the British establishment’s reaction to Brexit has been “all-out administrative, judicial, economic, media, political and parliamentary war. The battle against Brexit is being fought, Europe-wide, with all the weaponry a cornered elite has at its disposal. It has proved sufficient so far.”

Sheridan goes on in this brilliant piece  in the Australian to explain why this matters and how it has come about. I would strongly recommend that you read the whole article (I have pasted it in full below) – but here are a couple of tasters:

Brexit is first about national sovereignty, but it is also about a profound clash of philosophies of society. It embodies a deep, instinctual, irreconcilable opposition about how societies should run, what is the source of democratic legitimacy and what are the ends of civic purpose. The clash is between two conflicting world views. One is a postmodern, undemocratic, technocrat state in the service of what a German author calls the Therapeutic Caliphate, or what we might less exaltedly call the left-liberal crack-up, a la the EU, which has as its purpose the eradication of national identity and the transformation of human nature. The other is a civic vision that recognises the universal quality of humanity but puts the nation-state at the heart of democratic and civic loyalty, and which honours traditional sources of wisdom and authority, and traditional forms of democracy.

And then this – which for me is far more important than Brexit…this is what the politicising of the judiciary leads to:

However, he also makes the devastating observation that judicialising politics actually represents an enormous transfer of power from the poor to the rich. The judiciary is drawn from an extremely narrow band of society, typically from successful lawyers who are generally by birth and education, and then professionally, among the tiniest sliver of the wealthiest people in the society, and generally hold all the approved opinions. Parliaments, on the other hand, represent all kinds of people and have all kinds of people in them — rich and poor, smart and dumb, traditional and iconoclastic, conservative and radical.

The politicisation of the judiciary means that both politics and justice are for sale.   The Scottish judges made their judgement based upon their view that Boris Johnson lied to the Queen.  I think that most of the politicians in the UK parliament lied to us when they said they would enact the referendum they gave us.  I would love to take them to court – and indeed all of the political parties on the grounds that they lied in their manifestos.  I regard lying to the British people as even more serious than lying to the Queen.  But of course I can’t do that, because I don’t have the money.   This is not justice – its politics.  And the kind of politics that destroys justice.

I don’t think the judiciary are seeking to promote only one point of view.  But I do think that they are inherently ‘conservative’ in that they go along with ‘the powers that be’ because they are the powers that be.  I once spoke to a senior judge who horrified me by saying that they thought the judiciary should try and keep up with public opinion = which I knew, in reality, meant elitist opinion.  It’s not the job of judges to judge according to the latest progressive fashion!

The view of the Judiciary as omnicompetent and omniscient – subject to no higher law than themselves is both dangerous and illogical.  In another piece of news today a French court has declared that a company is liable to pay compensation because one of its employees on a business trip had a heart attack whilst having sex with a stranger. What the court called ‘an extra marital affair with a complete stranger”.  The court ruled that the death should be considered as a ‘workplace accident’ because sexual activity was normal and should be regarded like ‘taking a shower or a meal’.    Do we really want unelected judges making absolutist moral judgements according to their own philosophies?

The danger for Scotland (and this can be applied in other areas) is seen by the reaction of the politicians and the media to the judges.   Humza Yousaf is the Scottish Government Justice minister.  This is what he tweeted yesterday:

We have a Justice Minister who thinks that justice is a game – who publicly tweets in support of a newspaper and of judges who agree with his politics.  I have no doubt that he would do precisely the opposite if the judges opinion went against his.  This is dangerous.

A while ago I was told by a journalist that his paper could not publish certain things because of the implicit (but never explicit) threat that state advertising/patronage/co-operation would be removed if they stepped too much out of line.   The power of patronage is often more powerful than that of the courts.   The Scottish government is no stranger to using that power – they for example will not fund arts project that are not ‘on message’.   Newspapers like The Scotsman whose circulation is in freefall need Government/Council patronage/co-operation.

The judiciary should stick to matters of the law – providing judgements based upon equal access,  and equality of all before the law.    But we are now moving into the disastrous American system where unelected Supreme Court judges are deemed to have more political power than the elected politicians.    The EU technocrats, love this system.  But British democracy is based upon a separation and limitation of powers – and a recognition that ultimately everything is subject to a Higher law and The Supreme Judge.

The UK and democracy is now under a real threat.  The threat is not from Brexit but from the anti-Brexit forces for whom democracy is just a tool that can be discarded if necessary in order for them to achieve their aims.   As a result we now have a parliament which has just agreed to hand its powers over to a foreign power and, in seeking to overturn the result of the largest democratic vote in UK history, is refusing to grant the British people the right to elect own government (at least until that government is bound and limited to their will).

In the old British constitutional system, which Brexiteers want to uphold and restore, courts had very little role in reviewing British legislation. In the EU system everything is ultimately decided by courts. All EU member nations must submit to European law and the European human rights court. But judicial and technocratic activism combined mean the courts can determine almost anything. A written right to home privacy and security, provided for in one of the European charters, for example, can enable a court to disallow more or less any measure at all it doesn’t like. As Caldwell shrewdly observes, once politics is “judicialised” all politicians become “mere talkers”.

It is difficult to see how democracy, in any meaningful sense, can survive the politicisation of the judiciary.

Brexit – Bercow’s Coup and Britain’s Destruction

 

Greg Sheridan’s Article –

Brexiteers fighting for liberty and the people’s will

The whole Brexit imbroglio is much more important than just its immediate consequences for Britain, epic as these will be. For Brexit in key ways represents a version of the clash of forces playing out in some measure in every main Western democracy.

 

Brexit is first about national sovereignty, but it is also about a profound clash of philosophies of society. It embodies a deep, instinctual, irreconcilable opposition about how societies should run, what is the source of democratic legitimacy and what are the ends of civic purpose. The clash is between two conflicting world views. One is a postmodern, undemocratic, technocrat state in the service of what a German author calls the Therapeutic Caliphate, or what we might less exaltedly call the left-liberal crack-up, a la the EU, which has as its purpose the eradication of national identity and the transformation of human nature. The other is a civic vision that recognises the universal quality of humanity but puts the nation-state at the heart of democratic and civic loyalty, and which honours traditional sources of wisdom and authority, and traditional forms of democracy.

The finest essay written on Brexit anywhere is Christopher Caldwell’s Why Hasn’t Brexit Happened?, in the August Claremont Review of Books. Caldwell is one of the most brilliant political analysts writing today. His decade-old book, Reflections on the Revolution in Europe (riffing off Edmund Burke’s Reflections on the Revolution in France), remains the most piercing analysis of the crisis of identity and purpose in contemporary Europe.

In his Claremont essay, Cald­well argues that Remainers faithfully represent the modern European constitutional tradition. This is a tradition that empowers a technocratic elite, built on documents with plenty of abstract nouns that inevitably give great legislative power to judges. The pincer movement of bureaucracy, ruling-class ideological uniformity and judicial activism restricts the space for normal democratic decision-making.

He writes: “These shift power from electorates and parliaments to managers of information, inside government and out. From thousand-year-old constitutional ideas to five-year-old ones, from habeas corpus to gender identity. Because it was Britain that did most to construct the ideal of liberty which is now being challenged, Brexit clarifies the constitutional stakes for the world as nothing else.”

Caldwell lays a brilliant sociological insight across his political analysis. In the old British constitutional system, which Brexiteers want to uphold and restore, courts had very little role in reviewing British legislation. In the EU system everything is ultimately decided by courts. All EU member nations must submit to European law and the European human rights court. But judicial and technocratic activism combined mean the courts can determine almost anything. A written right to home privacy and security, provided for in one of the European charters, for example, can enable a court to disallow more or less any measure at all it doesn’t like. As Caldwell shrewdly observes, once politics is “judicialised” all politicians become “mere talkers”.

However, he also makes the devastating observation that judicialising politics actually represents an enormous transfer of power from the poor to the rich. The judiciary is drawn from an extremely narrow band of society, typically from successful lawyers who are generally by birth and education, and then professionally, among the tiniest sliver of the wealthiest people in the society, and generally hold all the approved opinions. Parliaments, on the other hand, represent all kinds of people and have all kinds of people in them — rich and poor, smart and dumb, traditional and iconoclastic, conservative and radical.

Similarly, as Caldwell shows, removing the hereditary peers from the House of Lords but keeping it undemocratic has made it arguably less representative than when it was just composed of hereditary lords. These always contained among their number eccentrics and cranks, the relatively impoverished as well as the relatively rich. The Lords, he argues, is now less diverse and more class-bound than in its old incarnation. Now it is appointed. And it comprises “activist foundation heads, rights barristers, think-tank directors, in-the-tank journalists, and political henchmen”. Caldwell doesn’t make this point but it might have more diverse racial backgrounds than before but it has narrower ideological constraints and, as he says, a possibly narrower class range.

For Caldwell argues that Remain is essentially synonymous with ruling class and that Brexit represented an assault on the prerogatives of this ruling class. This class has infinitely more weapons, and almost infinitely more skilled information managers and bureaucratic insiders, to mount its battles than the amiable but unfocused democratic majority that voted for Brexit.

So, Caldwell says, the British establishment’s reaction to Brexit has been “all-out administrative, judicial, economic, media, political and parliamentary war. The battle against Brexit is being fought, Europe-wide, with all the weaponry a cornered elite has at its disposal. It has proved sufficient so far.”

EU insider elites are extremely good at what they do: augment their own power and administer their own policy directives. Indeed in some ways the EU is a peculiarly efficient administrative state because it developed before any society existed that it was supposed to rule or even serve; that is to say, before a political entity named Europe existed. Therefore it could develop seamless bureaucratic mechanisms and defences of its power without any of the normal interference a real society would give it, without having to make any concessions for a real society’s traditions or even to deal with one pragmatically. Then it could impose this technocratic state on the different nations of Europe.

Of course, beyond the insider elite, this hasn’t been very good for those who live in Europe. Caldwell argues: “In most member countries the EU was being blamed for stagnating economies, dizzying inequality and out-of-control immigration.” It’s important to note Boris Johnson, like Donald Trump, explicitly wants an Australian-style immigration system, where the government controls who comes into the country and can choose skilled immigrants, while also of course, certainly in Johnson’s case, having a humanitarian intake.

But the EU being blamed for rising inequality is one of Cald­well’s most enthralling insights. The fact so many working-class and poorer areas voted for Brexit is used by Remainers, with fabulous class condescension, to show what an ill-judged, foolish decision it was, for the great unwashed could not possibly know what is actually in their best interests.

Yet, as Caldwell demonstrates, the type and model of governance the EU promotes pervasively diminishes all the traditional and real measures of democratic input and accountability. It privileges the affluent technocratic elite with all its neurotic virtue signalling and tells the common man his life embodies no wisdom and not much value.

This Brexit revolution is a liberty-seeking missile. Will it find its target?