The world has generally gone fairly topsy-turvy over the past year or two. And now, in the latest bizarre twist, the UK’s left-leaning activists and liberal intellectuals have suddenly become the biggest cheerleaders for the British judiciary.
Yes, these paragons of the legal establishment – predominantly white, aged, privately educated, Oxbridge alumni – are now apparently the champions of the people who should be cheered from the rooftops.
Social media is awash with people defending the Brexit judges and despairing at anyone who doesn’t ‘understand’ their High Court judgment earlier in the week. How can we be so ignorant? Aren’t British people familiar with their own constitution?
Of course, I found the various tabloid headlines lurid, objectionable and disturbing. The judges were merely doing their job and don’t deserve to be pilloried or exposed to abuse. I was even more disturbed by the rape and death threats received by Gina Miller, the figurehead of the group bringing the Article 50 case. None of this should be happening and shows a complete debasement of our political life.
But I’m afraid there are a few home truths that we need address.
It may come as a shock, but I’m afraid there ain’t no such thing as the British constitution. Not one which someone has bothered to write down anyway. (We share this rare distinction with a couple of countries in the Commonwealth and with Israel. But in most places around the world, from Argentina to Zaire, people have got their collective backsides into gear and actually set pen to paper.)
Of course, we claim to have a constitution which is ‘unwritten’ and when you talk to some lawyers and politicians about this, you almost feel they smugly believe this to be a superior arrangement. It means that what passes for our constitution is actually a series of conventions and precedents.
This kind of gentlemen’s agreement is great in the good times, but becomes rather exposed when the country is divided in two and you’ve decided to extract yourself from the world’s largest trading bloc.
Written constitutions are constantly debated and interpreted and amended around the world. And, believe it or not, unwritten ones are too. It’s just that we don’t have the luxury of those pesky written-down clauses. I would argue that the constitutional settlement in the UK is in constant flux – most notably in recent decades with the devolution of power to Scotland, Wales, Northern Ireland and London. It is permanent work in progress.
In this Brexit case, the High Court was effectively trying to decide on the respective power of the executive and the legislature in relation to the most significant political event of my lifetime. This is way too important an issue to be decided at this level, which is why the justices granted leave to appeal their decision directly to the Supreme Court, skipping the usual route of the Court of Appeal. (Gina Miller’s plea that the case should go no further is completely indefensible. It’s like saying we’d be happy to play the FA Cup Final at Fratton Park.)
When the Supreme Court does deliberate, it will bring together every member of the panel. This is unprecedented, but reflects the seriousness of what’s at stake.
Which brings me to my second and perhaps more controversial point. I suspect the Supreme Court will take a more political view of the issue. When I have made this point online, I have been decried as some kind of fool. Judges interfering in politics? Impossible! Judges merely interpret the law.
What’s very odd is that 30 years ago, the political interference of the judiciary was a huge issue in liberal and left-wing circles. J A G Griffith’s Politics of the Judiciary was compulsory reading in Sixth Forms and universities. And some of you may remember Tony Benn’s five questions to ask of the powerful:
What power have you got?
Where did you get it from?
In whose interests do you exercise it?
To whom are you accountable?
And how can we get rid of you?
The left always believed that the judges came from a privileged and elite background and exercised power in the interests of the establishment. In the UK, it is clear the judiciary is not accountable to the public and cannot be removed by any democratic levers.
The 1980s produced a number of judgments which many liberals and left-wingers found objectionable. Some related to industrial disputes, although the most notorious was probably Lord Denning’s ruling against Ken Livingstone’s Fares Fair policy at the Greater London Council, subsequently upheld by the Law Lords.
The argument back then was not always about judges pursuing overt political agendas. It was a recognition that they are unelected and tend to come from very particular social backgrounds. This means that we should always be prepared to ask questions.
So although judges should never be denounced in vitriolic language as ‘enemies of the people’, any free society should allow people to question and criticise their judgments. And although no one should be thought less qualified to deliberate on a case because they are ‘an openly gay ex-Olympic fencer', it might be perfectly legitimate to consider their wider social, educational and career backgrounds when interpreting their decisions.
What’s interesting is that in the United States, there is an explicit acknowledgement that judges are political and will be asked to take political decisions. At lower levels, members of the judiciary will often be elected. And when it comes to the Supreme Court, each appointment is weighed in terms of political significance. As a vacancy becomes free, the incumbent President will nominate someone in his or her image, but the nominee is scrutinised at hearings by the Senate.
This, in my view, is a much healthier system than exists in the UK, where we ask judges to make political decisions but pretend that they don’t.
So, back to the Supreme Court next month.
You’d think with all the glib memes circulating, there was no need for qualified judges, as everything could be decided on Twitter. In actual fact, it’s a very complex case.
Yes, there is the issue of Parliamentary sovereignty and the lack of any explicit authority for the government to use its Royal Prerogative to invoke Article 50. But there is also the question of whether Article 50 is irrevocable or not. And behind that, there is a much bigger question: how far should the unelected judiciary intervene in this debate between the elected politicians representing the executive and the legislature?
And that’s the political conundrum.
If the Supreme Court upholds the decision of the High Court, it will be accused – however erroneously – of delaying or blocking Brexit, or giving licence to those who seek to do this. The referendum in June was not legally binding, but it was presented by both sides as a momentous decision rather than a straw poll. Any reasonable person, having listened to the debate, would believe they were making an important choice which was going to be enacted.
The Supreme Court might end up precipitating the collapse of the May government or the calling of a new general election. I would personally be surprised if they felt the long-term credibility and impartiality of the judiciary was best served in this way. So my hunch is that they might pull back from the brink. Politics, you see.