Brexit, Public Protest And The Judiciary

uk-supreme-court

No, criticising legal rulings is not fascism

Right now the internet is bubbling with a lot of nonsense about the role of the British judiciary as relates to Brexit, and though I have my head full of US election news ahead of tomorrow night’s Semi-Partisan live blog, there are a couple of pieces of egregious stupidity which need slapping down.

Today, of course, Nigel Farage made headlines by announcing his intention to lead a march of 100,000 people on the Supreme Court in an effort to demonstrate the public’s supposed strength of feeling about ramming Brexit through without any Parliamentary scrutiny.

From the Telegraph:

Nigel Farage is planning to lead a 100,000-strong march to the Supreme Court to coincide with the start of the Government’s attempt to stop peers and MPs delaying Brexit.

The march, organised by the anti-European Union campaign Leave.EU, will end with a rally in Parliament Square within sight of the court building where judges will be hearing the appeal.

The campaign group is planning to “crowd fund” £100,000 from its supporters to pay for barristers to represent Leave supporters in the court action.

This will mean that the anti-EU supporters will have their own barristers in the legal action, who can challenge claims made by Remain supporters and even the Government.

[..] A spokesman for the organisers said that Mr Farage and Leave.EU millionaire backers Arron Banks and Richard Tice had “secured support from thousands of Leave voters” for the march and legal action.

The march will most likely take place on December 5, which is expected to be the first day of the hearing. The Supreme Court has cleared four days for the hearing which will be streamed live on the internet.

As this blog recently laid out, I am fairly relaxed about the High Court case and the coming appeal to the Supreme Court. If David Cameron’s utterly useless government had a) planned the referendum properly, and b) considered the possibility of Leave winning then all of this might have been spelled out clearly at the time of the referendum, as it should have been.

That being said, MPs are aware of the hellfire which would rightly rain down on them if they seriously attempted to subvert the referendum result; if they now want to give their cosmetic blessing to a high-level instruction to the government to invoke Article 50 then they are welcome to go ahead.

Of course, some people inevitably then take it too far. UKIP leadership candidate Suzanne Evans quickly took to the airwaves making incoherent comments about the need to exercise “democratic controls” (whatever that means) over the judiciary.

From the BBC:

Ms Evans told BBC Radio 4’s Today programme there were likely to be “protests and demonstrations”, but added that these would be peaceful.

She added: “I have a concern that Article 50 is not intended to facilitate nation states leaving the European Union. I think it’s there to frustrate them.”

Ms Evans said she thought the legal process could “water down Brexit”.

She added: “I think it’s amusing that the very same people who say it’s all about parliamentary sovereignty have, for the last 48 years, been trying to undermine parliamentary sovereignty”.

Ms Evans said: “I think there’s a debate to be had about whether or not judges are subject to some kind of democratic control.”

She did not want to undermine “their judicial independence”, but added: “I suppose that in this case, we have had a situation where we have judges committed to stay in the European Union…

“I’m questioning the legitimacy of this particular case. We know that the legal profession threw a collective hissy fit when we voted to leave.”

This is just incoherent garbage. “Democratic controls” could mean anything from moving towards a system where many judges are elected (as in many American states) toward some kind of constitutional fix to prevent judges from ruling to delay or impede the government from carrying out the instructions from this or any future referenda.

At no point does Suzanne Evans articulate what kind of controls she has in mind, which naturally plays into the hands of tremulous Remainers who are lightning-quick to portray any intemperate or ill-considered language from Brexiteers as a sign of the oncoming fascist apocalypse wrought by Brexit.

From the Huffington Post:

Her comments were branded “irresponsible”. by Labour’s shadow Brexit secretary Keir Starmer. “Some of us have worked in countries where judges do as governments tell them and we know that is highly corrosive of the rule of law and democracy,” he told Today.

Starmer said the High Court had simply “upheld the rule of law” by deciding the prime minister did not have the power to trigger Article 50 without a parliamentary vote. “It’s a slippery slope,” he said of Evans’ comments. “Principle is really important here. The rule of law really matters. It underpins this country.”

However Evans said she had not been talking about judges being subject to elections, but instead “pre-appointment and confirmation hearings” and “scrutiny by select committees”.

Typically, hysterical and bitter Remoaners like Coke Zero Conservative Anna Soubry led the way with her cries of “fascism!”:

However, many pro-EU commentators, in their sudden high-minded support for the independence of the judiciary, seem to be suggesting that any form of protest directed at judges or the courts is absolutely unacceptable and fascistic, whatever the reason.

LBC’s notoriously and stridently europhile presenter James O’Brien ripped into the protest, essentially declaring that it is wrong to protest legal decisions and rulings:

Today James gave his reaction to the march and it’s safe to say he wasn’t impressed: “We’re post-truth now…what’s Mr Farage doing? Having a little march to the Supreme Court to complain about British judges enacting British laws in British courts.

“Truly we are down the rabbit hole!”

James continued: “He says to remind people what they voted for. I appreciate your core support is a little bit flaky pal, but I don’t think anyone’s forgotten what they voted for.

“It’s quite incredible. Yet we’re all still standing alongside, going: ‘Oh, I wonder why this is happening.’

“I’m not wondering why this is happening. I know why this is happening. Same reason it’s happened throughout history. You take angry people who feel like they’re not getting a fair deal, give them a false target for their fury and just sit back and watch the whole place burn down.”

Presumably O’Brien feels similarly sickened when crowds of people assemble in front of the United States Supreme Court to protest in favour of socially progressive outcomes, like striking down the Defence of Marriage Act (DOMA). Except we all know that O’Brien would have no problem with such protests. Demonstrating about legal cases is abhorrent and intimidating when Nasty Brexiteers do it, with their thuggish and populist ways, but absolutely fine when the people march under a rainbow flag or advocate for a progressive cause.

But some of the most thin-skinned people of all are those within the legal profession, who apparently feel under assault by Brexiteers and parts of the media in the wake of the High Court decision.

From the Guardian:

The justice secretary, Liz Truss, is embroiled in an extraordinary row with the country’s barristers, after she was accused by the Bar Council of not fulfilling her role as “the conscience of the government”.

Truss has failed to condemn vitriolic attacks on the three judges who last week ruled that parliament must be given a vote before Britain triggers article 50, launching the Brexit process.

Chantal-Aimée Doerries QC, the chairman of the Bar, the representative body for barristers in England and Wales, told the Observer that the cabinet minister had a duty to uphold the rule of law. “[Her job] is sometimes called the conscience of the government and one would expect her to speak out on something like this,” she said.

The high court ruling on Thursday, which the government has said it will appeal, unleashed a torrent of personal abuse directed at the judiciary, with one prominent cabinet member claiming the judges’ decision was “unacceptable”.

Under huge pressure to defend the independence of Britain’s judges, Truss – who is also lord chancellor – issued a terse statement on Saturday, observing: “The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.”

What more do these wobbly-lipped victims want? The High Court made a decision, and various citizens together with certain press outlets exercised their free speech rights to criticise that decision in loud and forceful terms. Did anybody attempt to physically or mentally coerce the judges who made the ruling? No. Has anybody hatched a plan to neuter the judiciary’s ability to rule in future such cases? No. So what, exactly, does the Bar Council want? Apparently they want to be exempt from criticism. And to elevate the judiciary into such an exalted position would be truly frightening and totalitarian.

If the Bar Council, assorted other members of the judiciary and a coterie of Remainers expect Liz Truss to stop the Big Bad Scary Media from uttering opinions about the validity of legal decisions or the motivations of the people who make them then they really have taken leave of their senses, as well as any conception of the role of a free press in a democracy.

All in all, many Remainers seem to be taking leave of their senses. Those people who never gave the judiciary a second thought but who are now lionising it simply because they delivered a verdict which seems to frustrate some Brexiteers need to realise that the judiciary is not always high-minded and impartial.

The BBC reports that Lord Judge, the former Lord Chief Justice, opined that the Supreme Court should not overturn the High Court’s ruling because to do so might be *perceived* as a victory for the demonstrators:

The justice system could be undermined if a ruling that only Parliament can trigger Brexit is overturned, a former lord chief justice has said.

Lord Judge said it would be seen as a victory for pro-Brexit demonstrators should the Supreme Court reverse last week’s controversial High Court ruling.

[..] Lord Judge, who was the most senior judge in England and Wales between 2008 and 2013 and who is now a crossbench peer, told BBC Newsnight that people were entitled to protest but he was concerned about the impact the case might have on the legal system.

“People can march as much as they like,” he said.

“I don’t think it makes any difference to the judicial decision but it does make a difference to public order.

“Let’s say for the sake of argument the Supreme Court decides the High Court was wrong, it will undoubtedly be conveyed as a victory for the demonstrators.

“It won’t be but that’s what will be conveyed. And if that is conveyed, you’ve undermined the administration of justice.”

In other words, the head of the judiciary from 2008 to 2013 thinks that the Supreme Court should make a decision not based on the law, but rather on a desire to signal to unruly Brexiteers that judges cannot be pushed around. Even if there are found to be legal grounds for overturning the lower court’s decision, Lord Judge believes that the Supreme Court should allow error to go uncorrected in order to put the people in their proper place.

And yet criticising these people or displaying the slightest scepticism about their motivations and objectivity is apparently tantamount to fascism.

Give me a break.

 

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2 thoughts on “Brexit, Public Protest And The Judiciary

  1. David Metcalfe (@TraumaDataDoc) November 8, 2016 / 12:22 AM

    “The BBC reports that Lord Judge, the former Lord Chief Justice, opined that the Supreme Court should not overturn the High Court’s ruling because to do so might be *perceived* as a victory for the demonstrators”.

    The article did *not* report Lord Judge as saying that the Supreme Court should reject the appeal because of the protest, which would have been an appalling thing for him to say. He simply appears to regret that there might now be a public perception that the court was influenced should they uphold the appeal. In fact, the article couldn’t be clearer when it quotes Lord Judge as saying “I don’t think it [the protest] makes any difference to the judicial decision”.

    It is possible to support freedom of the press and still regret headlines that label judges as “enemies of the people”, calls for political control of the judiciary, and a letter published in The Telegraph calling for judges to be hanged.

    Like

    • Samuel Hooper November 8, 2016 / 12:45 AM

      That is an incredibly generous interpretation of his words, in my opinion. As you point out, Judge says that marching does not “make any difference to the judicial decision but it does make a difference to public order”. So he is saying that the demonstrators will not influence the verdict. But saying that the Supreme Court overturning the High Court’s decision would convey a message that “undermines the administration of justice” is about as clear a call for SCOTUK not to make that decision as I think one could possibly make without explicitly coming out and saying so. It’s the kind of heavy-handed, barely concealed coded advice that establishment figures love to ladle out while still maintaining a sliver of plausible deniability if someone calls them out.

      Regretting headlines is fine. There have been some awful headlines throughout this wretched referendum campaign and its aftermath. But the Bar Council and others went further and seemed to demand some special protection from the government against criticism from newspaper and private citizens, which is absolutely unacceptable and one of the foundations of tyranny. Criticism, both legitimate and illegitimate, moderate and strident, is the lifeblood of democracy. To call for an exemption from that, as the Bar Council have done, makes me wonder about the mindset of the judiciary in general.

      Like

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