Heroes of the People – The Politicisation of the Judiciary

Pete Wishart SNP MP could hardly contain his joy….

Screenshot 2019-09-12 09.36.11

He was of course referring to this:

Screenshot 2019-09-12 09.35.52

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.

image

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:

Screenshot 2019-09-12 12.12.36

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?

 

 

 

16 thoughts on “Heroes of the People – The Politicisation of the Judiciary

  1. Thanks for your balanced, well argued and passionate post on the issue David. It stands in marked contrast to the typically anti-Boris and anti-Brexit Broadcasting Corporation’s post by Laura Kuensberg this morning “Brexit: Is Boris Johnson profiting from Dividing?” that I woke up to. Happily I found rather more food for the mind and the heart from your post, as usual.

    1. Another question might well be,”Have the antiBrexiter politicians financial interests in Europe which risk being damaged by exiting the EU?

  2. While I welcome any slap in the face for Boris I think the point that the courts should not be deciding on political disagreements is a strong one (Sumptions recent Reith Lectures) and is a sad contamination from US political culture. The Brexit argument needs to be settled politically. But the Remain case is not anti democratic or elite technocracy. The country is evenly divided 48% of voters in the referendum supported remain and more might now, with more conviction. Many of us are sick of the plotting and gaming of all sides and fearful of the bully boy street fighters of the worst Brextremists. It seems to me there are 3 options.. a compromise deal supported by Parliament (failed already), a huge general election victory for Boris..(then God help us with the consequences) or a second referendum with a straight choice between no deal and remain, or possibly with a second preference vote on 3 options.

  3. When I voted for the first time, it was 1975 and we had been in the Common Market for two years. We had been told in 1973 that we were entering a market and it would be wonderful for trade. That is all we were told. We were not told we were entering an organisation with laws that would usurp the laws of the UK. We had not been told that the European Commission are not elected, they are appointed and they have the agenda, they propose the bills and the commission cannot be removed. Also the European Courts overule the British courts. We were not told that. We were deceived. As the years rolled by and we could see what was happening Edward Heath was on television and he was asked if he knew it would be like this. He said “YES”. I was so angry that the none of the political parties had layed out all the facts about how the Common Market was organised and run. Individual Mps, Such as Tony Benn, Teddy Taylor and Barbara Castle had opposed joining and it is very interesting to see Tony Benn on Youtube making arguments that the common market was undemocratic and going into details about why he thought that. If I had a tardis I would go back in time to stop my 19 year old self voting remain that day for I did not know what I was doing.

  4. Oh I was about to post the link to the article – Christopher Caldwell’s Why Hasn’t Brexit Happened? – brilliant piece. I keep telling my husband to read it as it explains so clearly why so many see themselves as Europeans which then dictates thoughts, actions etc.

    I have been watching the sorry decline in Westminster here from Spain and to say I am depressed about the whole thing is an understatment, so much that in fact I am taking a sabbatical from watching the news, Sky news (BBC comes and goes!) in particular. As a Scot I am also very embarrassed by the apalling behaviour of the SNP lot in Westminster. I cannot believe that Ian Blackford is a Christian in any shape or form, sorry!

    I have been saying for some years now that the UK is now falling off the cliff and yes I believe the Lord has withdrawn His hand from the land seen from it’s imploding, yes He does give a people what they crave…….so so sad.

    Another article about the judiciary on a different subject is Melanie Phillips article – https://www.melaniephillips.com/tearing-up-sexual-contract/

  5. This topic is nothing new. I have Griffith’s book, largely unread, but this blog article from 2011 quote the now Supreme Court judge Sumption:
    http://ukscblog.com/the-politics-of-the-judiciary/
    There is a clear distinction, now becoming more blurred (through postmodernism) between the 1) legal system and 2) interpretation of statute and 3) the “Rule of Law in the British Constitution compared to the EU system.
    I’m unsure, without engaging in a thesis level contribution, which is now beyond me, whether there should be some positive equalisation of class system appointments of the Judiciary.
    As a working class lad, who attended a State Grammar school, did a law degree and qualified as solicitor in a legal aid practice, in a system that relied heavily on legal aid working with people of low financial means, I did not encounter many who would or did qualify from within legal aid practitioners, whether barristers or solicitors, to high judicial ranks. Probably, the biggest differentiation was between those receiving state school education and private education. A friend who went to a different state grammar school, graduated from Oxford was excellent, independent, never really fitted into the barrister (largely public school) culture from which high Judicial office seems to be drawn.
    Apposite, to this present issue, however, is the number of leading remainers drawn from legal backgrounds: Grieve, Starmer, Blair, Ken Clarke, Lammy, Soubry, spring to mind. There will be others.
    Here is a Cambridge Uni. lecture by law Lord Bingham as he sets out his 8 principles enfolded in the Rule of Law Set out as slides:
    https://www.academia.edu/1749011/Lord_Binghams_Eight_Principles-_The_Rule_of_Law
    This is the sixth principle in summary:
    It is that “ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”. This is a fundamental and long-standing principle of public law, the basis of judicial review.

    My COMMENT: Although this has been most frequently used to kerb the Executive, it would be be interesting to see the arguments used in the present cases, especially, whether it is argued that Parliament in the Commons and Lords have “acted in good faith for the purposes conferred upon them.” I’d suggest the principle is a two edged sword, cutting both ways.

    However there is a transcript – 35 pages- and audio recording, which is far better (The lecture was subsequently expanded into a book) :
    https://www.cpl.law.cam.ac.uk/sir-david-williams-lectures/rt-hon-lord-bingham-cornhill-kg-rule-law
    My last point is that I wouldn’t rely on newspaper reports to determine the true judgement of the Courts.

  6. Law( written and established without prejudice) when focused on what is an absolute, immutable and timeless truth will always be good law. It will counter all arguments and will satisfy every generation. Bad law requires updating because it attempts to reflect opinion rather than truth. The “Ten Commandments” as we call them, were far broader than ten, and covered every aspect of life. Were people willing to read them in their totality they would find the statement, “Thus says (unchangeably) the Lord”,reliable and trustworthy guidance. They are as comprehensively good today as when given to Moses was given them all these centuries ago. What we are in danger of calling law today is as shifting as sand and just as useless for building on. We require law to be principled and applied with absolute integrity and without favour. Justice to be justice must be JUST and that in its fullest meaning.

  7. We need a Constitution rather than set of gentleman’s agreements. Meanwhile, it is important to know that even the PM is not above the law, nor is he above scrutiny for his actions. If he refuses (for example) to prevent lawful scrutiny by the elected parliament, then it is essential that there is a remedy for this. Trying to repopulate parliament with more friendly faces, whilst he exits EU as an executive act is not easy to undo.
    Our “Institutions” need to be protected. This must be the function of the ‘neutral’ judiciary. Other governments in the past have had to subject their political decisions and actions to the judiciary. And have had judgements against them which have forced them to reverse decisions.
    It’s difficult, however, for judges – or anyone else – to be certain about “motivation”. Strong evidence would surely be needed.

    1. ‘populating parliament’ is what the electorate do – not the PM. MPs are elected not appointed. And the parliament is not interested in scrutiny – they want to stop Brexit…by hook or by crook..

      1. “Repopulating parliament was Boris’s aim”. Of course, it would be via a General Election.
        You think ‘parliament is not interested in scrutiny’. That is your prejudiced assumption, to which you are entitled but which maligns many MPs who have worked long hours to probe and understand the effects of a major change in the workings of our social and economic framework, in order to seek safe-guards. That is their job. I know personally some who are doing this.
        The main point I’m making is that it is difficult to know what motivates politicians or judges or even you and me. Polarised, prejudiced blanket statements such as ‘parliament is not interested in scrutiny’ contribute nothing to the debate.

      2. There are individual MPs who want to scrutinise…I’m talking about parliament as a whole. You shall know them by their actions. Their aim is to prevent Brexit and I think they will succeed….

  8. Maybe, just maybe, there ought to be a “class action” on behalf of those who voted leave, for a Judicial Review of the Legislature, Commons and Lords, and an order of mandamus under the Constitutional Rule of law, having not acted in good faith to enact leave
    An individual has already taken a case to the Supreme Court, it being judicially accepted she had locus standi, so there ought to be no grounds to argue that there would not be a right of audience, before the Court, again under the Rule of law.
    It would be interesting to find out whether the Court would accept there if a prima facie case to be argued in a full session, or whether it would be dismissed as a mere political matter, outwith the Courts jurisdiction.

  9. I thought that the judges’ job was to interpret the law. (Silly me!) If that is the case then:
    What LAW were these judges refering to in their judgement?
    What gives a Scottish court the right to make a ruling on a UK matter?
    If all 129 MSPs decided that the UK Government should do X, Y and Z nobody would pay the least bit of attention, especially the Westminster MPs. So why should the UK Govermnment pay the slightest bit of attention, on a UK matter, to a Scottish court? Surely the powers of a Scottish court do not extend beyond the boundaries of Scotland?

  10. The term ” UK Supreme Court” may suffice until the higher European Court’s commissars , masquerading as judges, are evicted from legal jurisdiction post – Brexit.

    Then, and only then, will the superlative legal nomenclature have true meaning.

  11. The politicisation of the justiciary is of long – standing.

    The 18th Century draconian Scots Judge, Lord Braxfield, eager to sentence a political Dissenter , listened impatiently to the accused’s advocate plea in mitigation, a peroration which included the words ” You will remember, my lord, that our dear Jesus was also a Dissenter”.

    Braxfield’s riposte : ” Aye weel , ye ken what happened tae him.”

Leave a Reply to Bos Menzies Cancel reply

Your email address will not be published. Required fields are marked *