In the wake of the dramatic Article 50 judgment various Brexiteers have been venting their feelings.
On the front page of today’s Telegraph Nigel Farage fulminates against “unelected judges” and the “rich elite” that took the Article 50 case to court. Ian Duncan Smith accuses the judges of an “enormity” which “takes judicial activism to a new level.” Jacob Rees-Mogg says they have caused an “unnecessary constitutional clash.” Daniel Hannan compares Remainers to Western Communists who backed the Molotov-Ribbentrop pact: “they have gone from deriding parliamentary supremacy as a Victorian hang-up to posing as its defenders.” In a thundering editorial the Telegraph declared:
“The Court cannot simply pretend that the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote …..”
And these contributions have been mild compared to others. “Enemies of the people!” screamed the front page of the Daily Mail, an absurd and inflammatory headline that could have graced a 1923 Izvestia story about social parasites and Menshevik counter-revolutionaries in Leninist Russia; while Suzanne Evans, supposedly the more moderate of the UKIP leadership candidates appeared to call for the dismissal of the Lord Chief Justice.
It is not uncommon for aggrieved litigants to hurl abuse at judges who have given judgments that they don’t like. The wise judge will generally sigh indulgently, refuse to be drawn into any further argument and wait for the storm to die down. Being unpopular is all part of the job.
But this is different. The people doing the accusing are not hot-blooded aggrieved litigants. They are, in the main, politicians and journalists who should know better than to undermine the independence of the judiciary.
The confidence that judges can decide cases on the basis of law and evidence, without (as the judicial oath puts it) “fear or favour,” is an essential attribute of any functioning democracy.
Calling for their dismissal because you disagree with their decision is to descend some way down a slippery slope that leads to autocracy: once judges fear for their livelihoods if they rule against the state, the government will have acquired the ability to exert improper pressure in any case in which it has an interest.
What “enormity” – I assume that Mr Duncan-Smith uses the word correctly to mean a “terrible sin” – have the judges committed to justify this vitriol? What outrageous judicial activism necessitates their dismissal? How have they brought about a constitutional crisis?
The answer is that they were asked to rule, and so they duly ruled, on a point of constitutional law to which the answer was not immediately clear. Unfortunately, when judges are asked a question of law they cannot say “we are very sorry, we would like to be able to help you but the answer to your question has political ramifications so we are afraid we can’t answer it, try your local Citizens Advice Bureau.” They have to decide cases that litigants put in front of them, even if whatever answer they give is bound to be immediately denounced as “political interference” by the losing side. Had the court ruled in the Government’s favour that decision could – and probably would – have been condemned as a craven dereliction of their duty to restrain the ambit of the Royal Prerogative within its proper boundaries.
The main populist thrust of the attack on the judges has been that they are “out of touch with public opinion,” and in particular that they made their decision without reference to the referendum result. It is a spectacularly bad point. Government lawyers – undoubtedly correctly – accepted that the judges were under a duty to ignore the referendum result. “Public opinion” however it is judged, can play no part in deciding what the law is.
Amidst all this there is one person who is under a statutory duty to“uphold the independence of the judiciary. But where has the Lord Chancellor, Liz Truss, been? If she has been out in the radio and TV stations supporting the judges against these attacks on their integrity and independence, then I certainly haven’t noticed it. That’s a bit feeble, really; she’s not doing her job. Especially when just the day before the Daily Mail had kindly agreed to print an article by Ms Truss on her prison reform plans.
The British Constitution rests on a number of pillars: parliamentary sovereignty is one and the independence of the judiciary is another. Those Brexiteers who are now attacking the judiciary fought the referendum on a platform of returning lost sovereignty to Parliament, and repatriating lost powers from European judges. They do not seem to appreciate the irony that they are now agitating – in language that is as intemperate as it is ignorant – for the restricting of that very sovereignty and the emasculation of the British judiciary.
Thank goodness our judges will pay them no attention whatever.