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Continued attacks on judicial independence out of order

by Sam Ashworth-Hayes | 05.12.2016

December can throw all the cold, clear mornings it likes our way; politics is as heated and rowdy as it’s been all year. The latest target for the right-wing press is the judiciary, and the concept of judicial independence.

“Don’t defy the people, judges told”, reads Telegraph’s headline today. Inside, an editorial says it’s “regrettable” that judges chose to rule on the Article 50 case in the first place, instead of waving it away as “essentially a political matter”. On Saturday, the paper defended the string of articles focusing on judges’ (tenuous) “links to Europe”, and implied the Supreme Court may end up making a decision based on personal political views, rather than sound legal analysis. The Daily Mail, meanwhile, is standing by its “enemies of the people” headline, and doubling down on its criticism of “this unelected court”.

Controversial and politically sensitive court cases are not a new phenomenon, but this level of ferocity from the press feels new. It’s not just the press coverage that’s unusual – the government’s response has certainly been out of the ordinary. The justice minister is maintaining a studied silence, rather than defending the judiciary, and the Attorney General’s arguments – or at least, those parts of them telling judges “they must not defy the ‘will of the electorate’” – are being briefed to a sympathetic press.

Plans – reported in the Telegraph – for Supreme Court judges to be “forced to make public” information about their political beliefs, and those of their families, would be more at home in something from the Kremlin than Whitehall.

In this atmosphere, as the Telegraph quite rightly says, the free press should scrutinise the powerful. But that doesn’t just mean rooting through the bins outside judges houses. It includes the media treating their responsibilities seriously, upholding the fabric of society rather than seeking to unravel it when politically expedient.

People who would call themselves conservatives are finding the ideas of Robespierre rather more to their liking than those of Burke. Having campaigned for the right for British judges to rule on British laws, they now feel they shouldn’t be ruling at all. Why? Because they think they might not get their way this time.

This time, they argue, the will of the people must take precedence. The people, imbued with the wisdom of crowds, have spoken. But the wisdom of crowds is not legal fact and can’t be treated as such. For the sake of justice, the rule of law must stand above the rule of the mob. Which is, when you get right down to it, what the Telegraph and the Mail seem to be getting at, with their pointed references to the ballot box mandate for Brexit.

They have the scent in their nostrils, and they are in full flight. Anything that could delay, nuance or impede Brexit must be flattened. We must go tumbling on towards the finish line, with no time to reflect or doubt or think again. This, in itself, should give us pause for thought. If the people have spoken and their will is clear, any second vote would go their way. Any parliamentary vote would, in time, do so too – so long as it did actually reflect what the people want.

Edited by Geert Linnebank

One Response to “Continued attacks on judicial independence out of order”

  • You can immediately tell when people are using bogus arguments when they use the dread phrase ‘A “has links to” B’. The latest Daily Mail piece, on the 11 Supreme Court judges, is full of this kind of rubbish. They might have well have said “Some of them have even visited Europe!”.