Sunday, November 06, 2016

Calm Down Dears! Of Judges and Journalists

I think all sides of the Article 50 debate could usefully count up to ten and calm down. In particular, those aspiring UKIP and other politicians who called for sacking of judges raised legitimate questions about their own judgement, while those on the other side of the debate who suggested a few OTT newspaper headlines were a serious threat to the independence of the judiciary were also over-reacting.

I seem to have a rather unique perspective on the "article 50" row - as far as I'm concerned

* the government's position on article 50 may or not be right in law  but was certainly perfectly reasonable and equally certainly was not an assault on parliament:

* the three judges who ruled that they need to seek parliamentary approval may or may not be right but were simply doing their job, a job vital to a free society, and

* the journalists who attacked that decision may have gone a bit over the top - some of then certainly did - but they too were doing their job, which is equally vital to a free society.

In defence of the government position on article 50

Let's take the government position first, and put it into context

1) The Conservative 2015 election manifesto promised to hold a referendum on whether to leave the EU and respect the result of that referendum.

2) Having been elected, the Conservatives put forward a bill in parliament, which was carried by a margin of six to one in the House of Commons and enacted as a law, to set up that referendum.

3) "Leave" won that referendum having polled more than 17 million votes, which is far more people that have ever voted for anything else in Britain, ever.

4) Given that context, and that negotiation of treaties and the conduct of foreign affairs have for centuries been in the hands of ministers, it is hardly surprising that the government thought it already had a mandate to implement the referendum decision by activating Article 50 of the Lisbon Treaty.

5) Comparisons of that opinion with Tudor monarchs, dictators, or in one case "Bolsheviks" when what  the government is trying to do is implement the decision of the electorate in a referendum set up by parliament are really rather unreasonable.

6) With 20:20 hindsight, it is a great pity that the Act of Parliament which set up the referendum did not also include a clause authorising ministers to activate article 50 in the event of a leave vote. I  am fairly sure that the only reason the proposers did not include such a clause is that it never occurred to them that the government might not already have that authority.

The historical fact that the powers under which the government thought it already had the right to trigger article 50 are based on the ancient "crown prerogative" is completely irrelevant to the political and legal merits of the case. Ministers have run foreign policy throughout the modern democratic era and almost all modern democratic states with republican constitutions such as France or the USA also provide for the executive rather than the legislative branch of  government to take the lead on foreign policy.

When I studied history, I don't recall learning that Henry VIII's proposal to "leave" the Church of Rome or his daughter Mary Tudor's reversal of that decision were put to the public in either a referendum or an election.

In fact Henry and Mary actually did in a sense "consult" parliament but the methods available to Conservative whips today were not exactly comparable to those used by Henry VIII and Mary Tudor to ensure that parliament gave the right answer when consulted.

A Lord Chancellor and former Speaker of the House of Commons was among the people Henry beheaded for not supporting his version of "leave" while an Archbishop of Canterbury was among about 300 people Mary burned alive for not supporting her project of forcing people back to Rome. In that context comparing the government's position on article 50 to that of "Tudor Monarchs" is more than a little ridiculous.

And as we shall see, there are very distinguished legal experts who think that the government is right and the High Court ruling does not in fact reflect the law.

In defence of the Judges

Judges are not appointed to do what is popular or what is convenient for the government. They are there to rule on what the law actually says. However annoying that can sometimes be, a free society is dependent on the rule of law.

I don't claim to be an expert on constitutional law. Some people who are experts on that subject think that the High Court ruling on article 50 was wrong, but they have also strongly disassociated themselves from personal attacks on the judges who made the decision. As Professor Adam Tonkins MSP wrote on his excellent "Notes from North Britain" blog here,

"For 25 years I have been among the first to criticise judicial rulings that trespass into terrain better left to politicians and Parliament. But this is no such case. The court has done nothing improper."

(He goes on, however to eplain why he disagrees with their ruling.)

Professor Tomkins and Lord Norton are among the experts in the law who disagree with the High Court ruling but also disagree with personal criticism of the judges who made it: Lord Norton wrote here in an excellent article called

"The High Court Judgement: Keep calm and carry on"

that in his opinion the High Court ruling is "flawed" but that

"If you believe (as I do) that the judgment is flawed, you should identify the flaws – not attack the judges." 

OTT personal attacks on the judges from some politicians. particularly some those emanating from UKIP representatives such as Nigel Farage and Suzanne Evans - who appeared to come very close to calling for the dismissal of the Lord Chief Justice say far more about the flaws of those politicians than they do about the judges.

There are countries where judges can be slung out of office for making rulings which annoy the government or a political party or faction. I would not want to live in any of those countries.

But, but, but and again but ...

In defence of the freedom of the press

However, neither would I want to live in a country where there is anyone in a position of power who the press is not allowed to criticise - and that includes the judges.  

Speaking during her current trade visit to India, Prime Minister Theresa May defended both the independence of the judiciary and the freedom of the press to robustly challenge anyone they disagree with, saying:

"I believe in and value the independence of our judiciary. I also value the freedom of our press.

"I think these both underpin our democracy and they are important."

"Of course the judges will look at the legal arguments. We've got as a Government strong legal arguments for our case.

"It's important that we have the independence of the judiciary. It's also important we have a free press."

To paraphrase an expression usually attributed to Voltaire,  I disagree with the tone of press attacks on the article 50 judges, with headlines like "Enemies of the People" referring to those judges and to little gems like the headline which appeared to make an issue of the sexuality of one of the three judges.

But I will also defend to the death the right of the press to challenge any ruling or decision by people in a position of power which they disagree with.


Jim said...

But I will also defend to the death the right of the press to challenge any ruling or decision by people in a position of power which they disagree with

Well, yes. Thats great. Though I think its best that the press wait until there is a ruling before they challenge it, don't you?

Sure by all means "today the High court ruled that to trigger article 50 requires a debate in parliament, but the government have appealed the decision, the hearing for the supreme court is set for 7th December"

something like that, say on page 4 or 5 of the paper?

Chris Whiteside said...

Surely the most useful time to say whether you think any decision or ruling is right or wrong, and why, is when it is being reviewed, or has been appealed to a higher court or authority.

Jim said...

That again is fine, but there is no need to pretty much hang draw and quarter the judges as has happened in the newspapers, over what amounts to little more than a referral.

Ok great, I dont think the supreme court should rule this way because............

I think it was the correct desision because...........

Its more the way its been presented and the assumption that its a final decision that is, im my view, rather unbecoming.

Jim said...

Even I with my "holier than thou" attitude here have stated an opinion, on this very blog. it is

I dont think the supreme court should rule this way because............Its basically the courts saying to the Executive they need to ask the permission of parliament, in order to obey an act of parliament.

Which makes no logical sense to me.