A dangerous moment

The right wing response to yesterday’s High Court judgment regarding Article 50 has been over the top. I was going to say predictably over the top. But I’m not sure I would have predicted that it would have been quite so recklessly vitriolic. The Daily Mail’s front page declaring the three High Court judges to be “Enemies of the People” is surely Exhibit A. But the usual suspects – the Express, the Sun, the Telegraph – all pursue similar lines of attack. The fact that their arguments are either constitutionally illiterate or utterly hypocritical seems almost beside the point. The papers are vilifying the judges for something they did not do. They are accused of ‘stopping Brexit’ but they have done no such thing. They have been asked to pass judgment on a point of procedure. Can the Government exercise prerogative power in this matter or does it need to go before Parliament? In deciding that Parliament needs to be given a say the judges have asserted its sovereignty.

Which, as many people have pointed out, was a key objective of the Leave campaign. So what, exactly, is the problem?

Of course, the rabid Right is worried that if the issue is put before Parliament then it will be hard for the Government to get Brexit through the system, or at least to get it through the system quickly. It has been suggested that today’s attacks on the judiciary are not specifically to try to curb ‘activist’ judges, as the case inevitably heads for the Supreme Court, but to signal to MPs, who have to answer to their electorate, the sort of treatment they can expect if they don’t support Brexit.

That may be true, although the Daily Mail is already taking aim at Supreme Court judges in an apparent bid to delegitimise any judgment they come to.  Similarly Nigel Farage reappeared yesterday to tweet that the High Court judgment led him to question the independence of the judiciary. Suzanne Evans called for the judges to be sacked for not following the will of the people.

You can anticipate that we might find ourselves in the absurd Trumpian situation where the Right declares the case to be rigged, unless the result comes out in their favour. And it would seem to me, though I am no constitutional expert, that there is a reasonable chance that it will eventually come out in their favour – various constitutional experts have noted that the problem is the Government argued the case badly in the High Court, rather than that it is a bad case (see here and embedded links).

Personally, I think, from a political perspective, it is entirely appropriate for such a momentous decision to be scrutinised by Parliament in advance of Article 50. To do otherwise would mean the Executive acting in an inappropriately high-handed manner. If the Courts decide that is also legally required then so much the better. But here’s the thing, if the case goes to the Supreme Court and yesterday’s decision is reversed then, once it has run out of legal road, we should respect that. If the Courts say the Executive can use prerogative power in this matter then they are entitled to. I might think that politically it would be storing up trouble because ultimately the decision would lack the sort of legitimacy that sustains our system of government, but it wouldn’t be constitutionally inappropriate.

There are many dispiriting dimensions to the current debate over Brexit. But one of the most troubling is the lack of constitutional literacy on display. That starts from the problems caused by too casually introducing a mechanism of direct democracy – the referendum itself – into a system of representative democracy. Many of those claiming, in the name of ‘democracy’, that this or that thing must now happen by their very arguments demonstrate they have an impoverished or erroneous notion of how the British system of democracy is supposed to work. But also, more recently, we have the pervasive failure to understand the constitutional role of the judiciary. Separation of powers, the rule of law, judicial independence are all seemingly alien notions. The claims that the ‘will of the people’ shouldn’t be frustrated by ‘unelected’ judges – as if elected judges were somehow desirable – is the sort of thing that would play well in a state undergoing an authoritarian coup, but should have no place in a democracy.

We are at a dangerous moment. We have prominent politicians questioning the role and independence of the judiciary. We have MPs questioning the High Court judgment on the basis that it failed to take account of statements in an election leaflet, as if such statements should override the content of the relevant legislation. We have vocal MPs talking in terms of ‘purging’ Remain MPs or packing the House of Lords with Leavers to ensure that any Brexit vote in Parliament is carried.

These moves have all the hallmarks of conceding that a Brexit vote cannot be won on the arguments. That may well be true: the negative economic consequences of Brexit become ever more apparent, while the claimed benefits appear increasingly illusory. But rather than place respect for Parliamentary sovereignty and democracy at the heart of the debate, the most zealous Brexiteers are happy to advocate gerrymandering to achieve their objective. The contradictions are almost too obvious to need highlighting. Arguments from concerns about the “undemocratic EU” and the need to restore Parliamentary sovereignty appear to be rationalisation rather than rationale, as Bent Flyvbjerg once put it.

More importantly, the debate has moved beyond populism to take on a more sinister tone. The response to yesterday’s judgement and to the incitement of the right wing press, at least online, has been to ratchet up the level of aggression from angry Leavers. The incidence of threats of violence and death threats against the protagonists has has been alarming.

Allowing the populists a largely free rein is doing great damage to the legitimacy of key institutions upon which the peaceful governance of our society rests. We might think of the UK as having a robust Parliamentary democracy and a stable constitution. The last few weeks and hours have shown, if nothing else, that it is more fragile than many might have thought. We are governed by consent. We must consent to be governed. A few disreputable demagogues and ideologues abetted a feral right wing press can rapidly undermine that consent. But without the end game being obvious. Once you’ve trashed the system and rendered the country ungovernable because trust in foundational social institutions has been shattered, what then?

A pressing question is how to neutralise these attacks on our system of Parliamentary democracy in the name of populist democracy? We find ourselves in a place where many of those who are most angry seem to have most difficulty accepting that it is possible to separate concerns about process from concerns about substance. This makes it hard for concerns from ‘the Establishment’ or ‘Remoaners’ about the dangers to democratic process and structures to gain any traction. These are the despised ‘elites’ conspiring to keep the UK in the EU so can safely be dismissed. The fireman tells you not to keep playing with that naked flame near that box of fireworks. But he would say that wouldn’t he?

This insulation of much of Brexit belief from reason is one of the most troubling aspects of the situation. If the arguments of many of those who understand the constitutional dangers are dismissed ad hominem then how do we extricate ourselves from this mess, without it descending into violence? The current febrile atmosphere hardly seems well suited to conducting a seminar in Constitutional Theory 101.

The voices of moderate leavers needs a signal boost. There are thoughtful Leavers – such as Jesse Norman or Iain Martin – who have noted that the High Court was just doing its job – fulfilling its constitutional role. And it shouldn’t be criticised for that. They can see the dangers of attacking foundational social institutions as the zealots currently do. History furnishes a range of examples of where that road can take you. And none of those examples are very pretty. But there are too few measured and constitutional enlightened voices among the Leavers. At least among those willing to stick their head above the parapet.

Finally, the lack of Government condemnation of some of the more lurid comment on the High Court judgment is troubling. As well as respecting the judgment, the Government needs to strongly endorse the legitimacy of the role the courts are fulfilling, even when – especially when – it doesn’t go the Government’s way. Sadly it shows all the signs of doing the opposite.

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6 replies »

  1. Thoughts:

    I suspect the Supreme Court will reverse it, even if only because they’d prefer not to be involved in politics. (I think there are strong grounds to reject SH’s chain of logic as sophistry of “I pulled the trigger, but it was the impact of the bullet that killed him, M’lud” variety – but the reality is that the whole mess is not actually written clearly.)

    As for our fragile democracy, the reality is that very few of the Leave side are interested in preserving constitutional protections. With perpetual Tory government looking like our future, they quite like the idea of more power. Indeed, for most of the Leaver elite, the whole point of Brexit is to repatriate powers from Europe into the hands of the Brexit elite.

    Very often their biggest complaints (c.f. issues about deporting terrorists) are about having to go through due process. “Sovereignty” was all about more ministerial power, more statutory instruments, more ability for ministers to exercise decision making without interference from the courts.

  2. Indeed. I guess I start from the idea that we should take people at their word and work from there to see if their position is coherent/sincere. When I said that we were dealing with rationalisation rather than rationale I was alluding to this being a power grab and the whole ‘sovereignty’ thing being a bit of a smokescreen. But I don’t disagree with your rather more direct version! But then we are talking about the architects of this farrago, who I imagine are fully aware of what they’re trying to do. The silence of the Lord Chancellor (thus far) in the face of the media and MP attack on the courts speaks volumes. I guess my main interest is in stepping back from the immediate and understanding the longer term consequences. And hopefully doing a little to galvanise those who do care about constitutional protections into some form of action – and maybe also a few who didn’t realise they should care about constitutional protections!

    • Fair play to galvanising action! I’ll probably cheer up once (if) the US election passes without catastrophe… (my wife is from the USA, so it’s more than just a passing issue.)

      In the constitutional vein, I think what’s interesting is really the gov’t should win the Art.50 case but what would be best for the country is for the prerogative to be limited. The whole prerogative (and indeed rising abuse of statutory instruments) issue highlights that we’re actually seeing the symptoms/realising that our constitutional arrangements really aren’t fit for purpose…

  3. Pretty much spot on. I was struck by the UKIP tweet which sounded very like the Republican right in America and even used the phrase ‘activist judges’ – could have been Ted Cruz. The ramping up of the rhetoric by the tabloids with all of its post-truth disregard of evidence, facts or indeed basic reality is also part of the cross Atlantic drift. Will there be a mean reversion? What are the conditions required to make this happen?

    • Alas, over the years, a lot of money has been chiseled out of far-right donors in the USA specifically for the project of creating a culture war in the UK. Really hard to reverse.

  4. Hi Alex: thanks for posting. At first I was embarrassed by the redtops’ scurrilous attacks: whatever will our neighbours think? It’s enough bother trying to get non-anglosaxons to take seriously anything at all about tabloids as it is without having to to stave off the inevitable collective Gallic shrug of, ha!, what do you expect from subjects of Her Gracious Majesty who don’t even know they’ve got a constitution, sort of thing. (My own favourite vox pop was a lady interviewed on the radio who objected to what she saw as judges stopping Brexit because of “some hairdresser”.) Then I wondered to myself, who do you think you are kidding, Mr Editor, if you think old High Court Masters are going to be got on the run by this sort of thing? (Incidentally, the Daily Mail editor, on evening telly, displayed a rather Ratneresque contempt for his own organ, dismissing the interviewer’s querying of the the front page with a response to the effect of, “how do I know? I didn’t write it”.) Maybe the tabloids themselves felt provoked by the muscular 3-0 judgment, though that of course is their problem and no excuse. Subsequently, letters to the higher-FOG-scoring press from a number of senior lawyers have tended to express objection to the lilylivered lack of defence of the judges from the member of the executive whose job description includes that function, as much as, or more than, to any objection to perceived attempts to intimidate the judiciary. There’s constitutional blogging-à-go-go, some of the posts rather meaty, over on https://ukconstitutionallaw.org/blog/ if you’re interested. A lot more water will undoubtedly pass under the bridge between now and the appeal, by which time perhaps more sections of the press and public may have grasped that there’s also rather a lot of it separating the supreme courts in the US and UK. But there’s the small matter of the results of certain recent US elections for the public to digest before any real debate about judicial review or constitutional review can probably usefully be had.