As the Article 50 litigation reached the Supreme Court in early December, sections of the media were already sharpening their knives in preparation for the likely failure of the government’s appeal.
The target of this sharpening was the judiciary. The Daily Mail, for example, portrayed the Supreme Court Justices as ‘eleven unaccountable individuals‘. The paper published a short biography of each judge, ranking them on a scale of one to five for ‘Europhilia’, by which it meant their degree of perceived bias in favour of the respondents’ case.
The explanations for these rankings were frequently risible. Lord Carnwath is apparently a five-star Europhile; the clinching factor, if one were needed, his reputation as an ‘acclaimed viola player and lover of European culture‘. Lord Sumption, on the other hand, is a ‘Eurosceptic‘ because he was once mildly critical of the European Court of Human Rights, an institution which has nothing to do with the European Union. (That he is also a French speaking historian of the Hundred Years War, and owner of a – very lovely – château in Berbiguières in the Dordogne, passed curiously unremarked.)
However, to observe the absurdities of this kind of journalism is not only far too easy but also entirely beside the point. What matters is its mere existence, demonstrating as it does that elements of the media are seeking to recruit the judiciary as combatants in the socio-cultural war which is rapidly becoming the dominant theme of British politics.
For anyone interested in judicial independence and the rule of law, this is an unwelcome turn of events.
The Media Reaction to the Divisional Court Judgment
These pre-emptive strikes against the Supreme Court were of a piece with the reaction of the same sections of the media to the Divisional Court judgment in the same case.
In the real world, that judgment came as no surprise. It was predictable and predicted. The Court decided that Parliament must legislate before the UK could issue an Article 50 notice and so trigger its exit from the EU. This was an orthodox legal conclusion on an impeccably orthodox legal ground – under the constitution, Parliament is sovereign. In consequence the judgment was noteworthy, but it tore up no trees. (See my case commentary: A Bad Day for a Hard Brexit).
However, in the world as viewed through the lens of three tabloids (the Daily Express, the Mail, and The Sun) and one broadsheet newspaper (the Daily Telegraph) the case was a fit subject for outrage. All four adopted variations on the Telegraph’s ‘judges versus the people‘ headline, an approach taken to characteristic excess by the Mail. In this view, the Court’s careful and measured legal conclusions were in fact a political act – an attempt to frustrate the result of the EU referendum.
To sustain this presentation of events, these newspapers had to be able to assume, just as they sought also to promote, a high degree of ignorance on the part of their readership.
In the febrile, post-truth environment of contemporary politics, inaccuracy is plainly no hindrance to a narrative, and ignorance a positive help. Nonetheless, ironies abounded. In this tabloid view of reality, the royal prerogative, that fading relic of medieval autocracy, had to be presented as a popular instrument of government. Meanwhile, the sovereignty of Parliament – just six months ago front and centre of the Leave campaign – must now be dismissed as the refuge of anti-democratic elites.
Thus the very newspapers which most stridently preach a message of law and order find themselves undermining it by casually trashing the judicial system on which it depends.
To be fair, many Leave voters will have been surprised, and with some justification, to find that the result of the EU referendum was not binding. Parliament could have made it so in the EU Referendum Act 2015, as it had for previous referendums, but chose a different tack. At its simplest, the judgment in Miller merely says that the matter needs to go back to Westminster in order to fill this legislative gap. But it is quite reasonable to ask why there was any gap at all.
Nonetheless, in the list of those who might stand to be criticised for this state of affairs – David Cameron, his cabinet, or the generality of MPs who passed the Act – the judiciary do not feature at all. Their role was not to create the current situation, but merely to declare it for what it is.
The Role of the Lord Chancellor
The political views of judges have been a legitimate subject for critique ever since J.A.G. Griffith first published The Politics of the Judiciary in 1977. But there is a world of difference between careful academic analysis and the kind of headlines in the popular press which declare judges ‘Enemies of the People‘.
By convention, the judges do not respond on their own behalf to attacks in the media. So whose responsibility is it to speak for them?
The answer to this question can be found in the Constitutional Reform Act 2005. While all Ministers of the Crown have a duty to ‘uphold the continued independence of the judiciary‘ (section 3(1)), particular responsibility falls on the Lord Chancellor, who must have regard to ‘the need to defend that independence‘ and ‘the need for the judiciary to have the support necessary to enable them to exercise their functions‘ (section 3(6)). In addition, the Lord Chancellor alone swears an oath of office in which he or she promises to ‘respect the rule of law [and] defend the independence of the judiciary‘ (section 17).
When faced with the headlines which followed the Divisional Court judgment, these duties required the Lord Chancellor to make a public statement in defence of the independence of the senior judges who sat on the case and who had, on any fair-minded analysis, reached a wholly apolitical judgment. However, this did not happen for two reasons.
First, the statutory duties, though clear enough in purpose and intent, would in practice be impossible to enforce as requirements to take any specific action. The law can only go so far in relation to a Lord Chancellor who does not take his or her oath seriously. The statute points in the right direction, but it has no teeth.
Second, ever since Tony Blair thought that he could abolish the office by Prime Ministerial fiat in 2003, the role of the Lord Chancellor has been reduced to a shadow of its historic self.
For almost a millennium, to be Lord Chancellor was to hold one of the great offices of state. It was occupied at various times by some of the most resonant names in the whole of English history (Becket, Wolsey, More), leading jurists (Hardwicke, Camden, Halsbury) and senior political figures (Haldane, Birkenhead, Hailsham).
In its hollowed-out form following the Blair reforms, the office now functions as a largely ceremonial appendage to the resolutely mid-ranking cabinet position of Secretary of State for Justice. Consequently, it is a role given to mid-ranking politicians who are either trying to shin up, or avoid sliding down, the greasy pole. What was once a political destination is now a way station for the ambitious and the failed.
The current Lord Chancellor – the first female holder of the office – is Liz Truss, a minister perhaps best known for having unfeasibly strong views about imported cheese. She falls into the ambitious category of mid-ranking cabinet members. As such, when the judges of the Divisional Court began to attract the ire of the Brexit-supporting press, she was highly unlikely to stick her neck out in their defence. In the event, she said nothing at all.
When this silence started to speak loudly, it in turn drew criticism from those who have reason to be concerned about maintaining the rule of law – in particular, a resolution of the Bar Council which ‘regretted’ the Lord Chancellor’s failure to defend the judges. In response, someone in her department put out a vanilla three-line statement about judicial independence which made no mention of the media attacks. Truss herself continued to say nothing.
This state of affairs, accurately summed up by Lord Falconer of Thoroton (himself a former Lord Chancellor) in a letter to The Times, now ‘signals to the judges that they have lost their constitutional protector‘.
Culture Wars and the Judges
At its heart, the vote in favour of Brexit was driven by economics, in particular by the deep regional inequalities which scar the United Kingdom. These, as the Bank of England’s chief economist recently observed, just continue to get worse. The analogy with Donald J Trump’s electoral success in the blue collar communities of the rustbelt states of the US has been widely made and is valid.
But economic outcomes neither arise nor persist in a vacuum. They are shaped, tolerated, addressed, or ignored by those in power. So the story of Brexit is in fact a story about the concentration of power in the hands of a complacent metropolitan elite, which has turned a blind eye to the geographic fault lines steadily fracturing UK society. I wrote about this in London, the Centralisation of Power, and the Causes of Brexit.
In the words of Peter Hennessy, a respected historian of post-War British government, ‘The referendum was like a lightning flash which illuminated a landscape that had long been changing. The country is fragmenting…‘.
The political left tends to address these issues in terms of their underlying economics, still applying to the problem an essentially Marxian analysis. This is fair enough. But to provoke a movement for change on purely economic grounds requires an appeal to the very class consciousness and class organisation that were the first victims of de-industrialisation and now scarcely exist even in their former heartlands. In consequence, the left’s narrative often plays out as an exercise in mere nostalgia and wishful thinking, including among those who should be most sympathetic to it.
The political right, on the other hand, seems to have intuited that it is more effective not to grub around in the complex economic causes of our present discontents, but to attack the political elites who have allowed them to develop. The insight underlying this is that the institutions which hold power in the UK have a moral responsibility to all the citizens of the nation which they have manifestly failed to discharge.
And so the governing elites themselves (with some legitimacy) and anyone else who can be associated with them (more dangerously) – in short, anyone who embodies the Other to the parts of society which are the victims of globalisation – now become fair game in the demonology of right wing populism. In a world of identity politics, this mode of attack has a force and reach lacking in its leftist counterparts. It is the politics of the culture war.
This is the dynamic that underpins Brexit Britain, Donald Trump’s USA, Marine Le Pen’s France, Bepe Grillo’s Italy, and any number of politically fissile states in contemporary mainland Europe. For those who like historical parallels, it bears a passing resemblance with Weimar Germany; but comparisons with the 1930s generate far more heat than light and are in any event quite unnecessary – ours is a low, dishonest decade on its own unique terms.
It is a symbolic moment when the judiciary gets dragged unceremoniously into this battle. The problem is not only that judges are professionals doing an essential job and deserving of broad public support, but that ad hominem attacks on individual judges quickly become indistinguishable from institutional attacks on the judiciary as a whole, and these in turn lay the groundwork for an assault on the rule of law itself.
This is how economic grievances, long unaddressed, transmute into constitutional threats, and how the politics of socio-cultural conflict becomes rapidly corrosive of the institutions which an advanced society ought to value most highly. It is why the independence of the judiciary is (or is supposed to be) protected by statute. And it is why attacks on the judges should be seen as symptomatic of a very troubling shift in the language and terms of political discourse within the UK.
But if the response to the Article 50 media coverage yields one more insight, it is the lack of clear-thinking, far-sightedness and moral courage evident at even the highest levels of UK government. Confronted with a set of unprecedented challenges, political leadership of intelligence and vision is required. The current Lord Chancellor’s dispiriting non-response to the media attacks on the judiciary reveals a profound absence of these qualities.
In short, the situation calls for statespersons. We have politicians.
Public Law & Regulation 