November 4, 2016

Brexiteers’ contempt for judicial independence

Brexiteers’ contempt for judicial independence

The Tory Party is nothing if it does not respect, defend and fight for an independent judiciary, says Peter Bingle.

The feigned outrage by the right-wing media and pro-Brexit politicians does them no credit. Headlines such as ‘The judges versus the people’ are not only preposterous, they undermine the very arguments used by Brexiteers during the campaign on returning power to the British Parliament and upholding the Rule of Law.

In Iolanthe WS Gilbert poked fun at the judiciary yet his views and observations are just as relevant now as they were in 1880s. As the Lord Chancellor sings in his famous patter song: ‘The law is the true embodiment of everything that’s excellent. It has no kind of fault or flaw and I, my Lords, embody the law.’

So it must surely be the case that – as the judiciary in the form of three of our most senior judges is harangued by the media and politicians – the Lord Chancellor Liz Truss is touring every radio and television studio defending the judgment and upholding the Rule of Law. Her silence is deafening and shocking. In Gilbertian terms she is more Mad Margaret in Ruddigore than a Lord Chancellor of distinction.

The Tory Party is nothing if it does not respect, defend and fight for an independent judiciary. It is worth pointing out that the judgment had nothing to do with the argument about leaving or remaining in the EU. It was centred purely on a point of law, namely whether under our constitutional settlement the government had to consult both Houses of Parliament rather than use the Royal Prerogative over the triggering of Article 50. On this occasion the government lost the argument. Perhaps they will fare better at the Supreme Court where this case was always destined to end up.

Imagine if the government wins the day at the Supreme Court. Will the same editors and politicians who are now baying for blood suddenly discover a fondness and respect for an independent judiciary? This is dangerous stuff and we simply can’t adopt a pick and choose approach to legal judgments. We either support the Rule of Law or we embrace anarchy.

One of the Brexiteers’ main fears of Parliament being involved in the triggering of Article 50 is the likely sceptical attitude of the House of Lords in which the government does not have a majority. Sorry but that is how democracy works and with a hopeless Labour Opposition in the House of Commons it is no bad thing for the government’s case to come under detailed scrutiny.

Again, WS Gilbert was being very perceptive when one of his characters Lord Mountararat in Iolanthe stated: ‘The House of Peers throughout the war did nothing in particular and did it very well …’ Tories and newspaper editors need to refrain from attacking the House of Lords simply because it is doing its job.

We are not yet in a constitutional crisis and if wiser heads prevail we never will be. If the hotheads get their way, however, such a crisis may eventually engulf us. A general election then becomes inevitable.

At times like it is a national tragedy that we no longer have a great political figure such as Lord Hailsham as Lord Chancellor. He truly was the embodiment of the law. Is Liz Truss?

2.92 avg. rating (59% score) - 25 votes
Peter Bingle
Peter Bingle
Peter is the Founder of Terrapin Communications. With a career in politics and communications that has spanned almost four decades, he is one of the country's leading public affairs practitioners. His career has seen him advise many top companies, including McDonald’s, HSBC, L’Oreal, Permira, Motorola, Camelot, Rolls Royce & Kellogg's.
  • Grammar Grub

    My local newsagent says that if you lose a football match, you don’t expect have another go.

  • digitaurus

    The SNP will have a block (not sure how many after the boundary changes?). And perhaps UKIP will sort itself out.

    The ANC is one example of a party dominating parliament in a genuinely democratic country. But I agree – politics abhors a vacuum.

  • polidorisghost

    If the Labour Party does go the way of the Liberals then I guess The Conservatives will have to split: A parliament with just one party would be a contradiction in terms wouldn’t it? After all, only a madman can argue with himself for any length of time.

  • Dr Evil

    It’s called freedom of speech and having a free press. Judges and their pronouncements can be criticised or ridiculed and often were and are. “Who are these beatles?” Also remember the judge who gave a convicted rapist a mere fine as the woman involved had been asking for it? Major bust up from loads of feminist and other groups on a far bigger scale attacking him compared to last Thursday and Friday. It was hyperbole in the press, nothing more.

  • digitaurus

    Well, does it or doesn’t it? I thought you were just complaining that this is what was going on. Welcome to politics.

  • digitaurus

    Or just vote for someone else. The political tectonic plates are shifting. Perhaps the Labour party will go the way of the Liberals. Possibly the Conservatives will split into two parties.

  • The Banana

    There will be rebels of course, but I wouldn’t be surprised if Corbyn’s party line was to abstain. Assuming most Labour MPs do – and they are the most at r isk of being UKIPped – then that will be sufficient even with a lot of Tory and Labour rebels.

  • Lamia

    Years ago I would have yawned at your suggestions. Now I think they deserve to be taken seriously. I’m sorry it has come to this, but that’s nothing compared to how angry as I am about the way the establishment has behaved over the past six months.

    Yesterday in the pub, a thoroughly law-abiding, patriotic older lady asked me, “Do you know anything about making bombs?” She wasn’t really serious, but not long ago she would have found such talk even as a joke disgusting. There is a cold fury growing in England among Leave voters. They won’t be tricked, they won’t be hectored, and they won’t put up with these games for much longer.

  • Lamia

    I think there will now come pressure for reform of the unelected Lords and indeed for a written constitution. For decades, centuries even, the public have accepted these discrepancies as charming anomalies – but that was on the understanding that when it came to the crunch the establishment could be trusted to play fair by the people. I truly regret that we can no longer trust them to do that. I think they had better now co-operate and show a little humility. If they don’t, then they will bring down something terrible, not just upon the country, but especially upon themselves.

  • Lamia

    I agree with this point. I am not particularly exercised about this particular decision by the Judges. Under different circumstances, I don’t think it would be a big deal. It has become a big deal simply because so many of the establishment since June 24th have been quite blatant about the fact that they want to – by whatever means – overturn the result of the referendum. The establishment are out to stitch us up. Not all of them, but many or most of them. So now, over half of the country trusts none of them.

    That has resulted – quite understandably – to Leave supporters being hyper-sensitive about anything that could look even faintly like obstruction or deception on the road to Brexit – even if it is not meant as such.

    These judges were possibly (possibly not) just doing their job impartially. Once it would have reasonable to expect everyone to give them the benefit of the doubt. But it is no longer reasonable to expect this. And the fault for that lies entirely with the Nick Cleggs, Owen Smiths, Anna Soubrys et al. By setting themselves so unashamedly and contemptuously against the people, in a way not seen in this country for about a hundred and fifty years, they have grievously – possibly fatally – damaged public trust in and tolerance for the ruling class.

    I hope that you are correct and that a majority of MPs will decide that they cannot obstruct the democratic vote and will vote to approve Article 50. For some this may be down to them being intrinsically reasonable. For others it may be down to them now becoming scared for their own safety. Well, it should never have come to the latter, but if they have had to be scared into being democrats, the fault for that lies with many (not all) on the side of the Remainer establishment. It ought to have come to them naturally.

    When Anna Soubry – to name just one – talks of the country having lost its mind, she ought to take a look in the mirror. This started with people like her.

  • polidorisghost

    “Haha. Of course – that’s the way parliament has always behaved.”

    Is it really?
    Then it’s time we threw them into the Thames and told them to swim for it.

  • ratcatcher11

    Parliament is not yet supreme, Brussels is or have you not noticed that we have not left the EU?

  • ratcatcher11

    Ask Jim he will tell you.

  • ratcatcher11

    No it does not because if it did then violent change would be legitimized.

  • ratcatcher11

    Yes, but once we have left the EU otherwise in Law Parliament obeys Brussels. Your argument is thus false.

  • ratcatcher11

    The majority of British voters voted for Brexit and to begin negotiations Article 50 has to be invoked, but three judges say that Parliament must decide whether Article 50 is invoked after a referendum which Leave won. That’s is why this judgement is simply judicial interference in the political process and must stop because Parliament has also already voted to abide by the referendum result. Make your case if you wish but people see this as the establishment trying to prevent a democratic decision from being enacted.

  • digitaurus

    Well, it’s a bit of a mixed bag – perhaps Boris Johnson being the most mixed bag of the lot. Perhaps we need an early election to clear out this lot and bring in a group that more accurately reflect the views of the 52?

  • digitaurus

    True. But Parliament frequently changes its collective mind and/or ignores the majority views of the populace (pace capital punishment for decades). That’s how a representative democracy works in practice.

  • getahead

    And parliament’s wishes are to retain the status quo of being subservient to Brussels?

  • getahead

    Parliament previously made clear that the decision about whether to leave the EU was to be settled by the referendum. Parliament having decided to hold the referendum, and the public having participated fully in it, the result should be respected and not undone.

  • getahead

    “Brexiteers’ contempt for judicial independence.”
    Shouldn’t that read “Judiciary’s contempt for the people of the United Kingdom.”

  • Bugle

    I hate ad hominem arguments, but this guy is a complete idiot.

  • The Banana

    I think having had the kick up the arse the referendum provided, it will concentrate minds in Parliament. It’s a shame it took this long though.

    I think if Parliament just chose to ignore the referendum result, THEN there might be trouble, if only a complete loss of faith of what’s left of the system. But I don’t think they will do that… the noises being made by the party leaders are reassuring. The UK hasn’t had a revolution for 400 years for a reason.

  • digitaurus

    Understood. Would you agree that proposing sortition for the Upper House has a (outside) chance of success while the more radical proposal is just going to be rejected out of hand?

  • digitaurus

    I agree

  • The Banana

    I actually don’t disagree with the judiciary’s decision ,and am confident that Parliament will deliver Brexit. Corbyn has already said he will not oppose the will of the people, and May’s position is crystal clear. If need be there’ll be another election with manifesto promises on Brexit.

  • The Banana

    I imagine the Executive would come from both upper and lower houses (as is the case now, actually), but the lower house would be the source of legislation.

    If you are going to have elected professional politicians and lay members, then surely the professionals should be the revisers not the other way around.

    It’s sort of how ancient Athens worked, the chancellorship was elected in Athens, but the popular assembly had all the real power.

  • digitaurus

    Tower Bridge would be much more festive and, frankly, good for tourism (we could do with the foreign exchange!! lol). If you’re assaulting parliament then maybe a scalpel is going to be a better tool than a pitchfork as there are quite a few card-carrying Brexiteers in amongst the Turncoats.

  • digitaurus

    Interesting. As a minor point, I think that the elected House should be tied to constituencies as (i) it makes sense in a representative democracy to have an elected person being accountable to a coherent community of people, and (ii) by all accounts the constituency work undertaken by (conscientious) MPs is very valuable. Of course your suggestion has much more fundamental impact – if the Lower House was subject to sortition, I am assuming this would be the source of the Executive? This leads to a very different model of representative democracy to that developed in the Western world to date (are there any examples of this model?).

  • digitaurus

    But the Brexiteers are running the asylum now. Who will you be spearing with your pitchfork (harder than it looks, incidentally)? The Foreign Secretary? The PM? The Minister for Brexit? The Minister for Trade (or whatever)? The Secretary of State for the Environment? I guess a bit of selective pitchforking might work – Amber Rudd must be looking nervously at passing peasants (pitchforks again).

  • digitaurus

    Gina Miller and her elitist chums have just sought recourse to the law of the land. This legal interpretation may be overturned by the Supreme Court. So far so boringly normal. If the Supreme Court upholds the ruling then I guess you can campaign to have the law changed in some way, though it seems to me the underlying principle is not a disaster and would likely be a check on executive power that you might be keen to see at some point in the future. Failing that, if your parliamentary representatives are not to your liking then campaigning for an immediate general election is a natural next step. We do live in a representative democracy, after all, and 17 million people just voted to give parliament absolute sovereignty. The House of Lords is in a hell of a mess, particularly from your perspective as it is stuffed full of elitist chums (and always has been). Perhaps it is now time for those on the right of the political spectrum to put their shoulder to the wheel and push through reform of the House of Lords.

  • The Banana

    Sortition, an excellent idea. I would go further and say that the Lower House should be selected by sortition while the advisory Upper House is elected.

  • The Banana

    Leave is pretty straightforward. What is there to scrutinise? I think the elites have to realise that for decades they have lied on this subject, and that their democratic legitimacy is therefore suspect. We’ve had too many broken promises, too make fake eurosceptics, too many referenda that didn’t happen, being bounced into the Lisbon Treaty… the list is endless really. Why else was there a demand for a referendum? If Parliament was truly representative of the people there would be no need of such things. But people knew all along that we’d only get out of the EU if we went over Parliaments head, to the people directly.

    The Brexiteers assume the future will be like the past, and that we will be stitched up. Again. But this time the brexiteers have the moral authority of a popular referendum behind them. It’s going to be pitchfork time if Brexit is not delivered.

  • digitaurus

    Haha. Of course – that’s the way parliament has always behaved.

  • Dr Evil

    No, it is for the massive march on parliament that these are being readied for. Plus of course an axe for the heads. We have to decorate London bridge once again.

  • macukguy

    What about the contempt Gina Millar and her elitist chums have for the democratic vote of 17 million people.

  • PrivatEdukashun

    Yes and parliament voted to have a referendum and abide by the decision…..but parliament thought that the result would be to stay…..they were wrong, the people spoke and made their will clear…LEAVE the EU, and now the slimy bastards in parliament are trying to ignore the will of the people…as usual.

  • digitaurus

    I don’t know. How many times?

  • digitaurus

    Very true.

  • digitaurus

    We live in curious times when members of the right wing of the Conservative party (and others of similarly robust view) are proposing to man the barricades. I thought the idea was to restore the sovereignty of parliament and place our trust in our august and ancient instruments of authority, but within a couple of months we’re “tearing the whole lot down” because three judges came to a view on one rather obscure constitutional point – a judgment which looks pretty likely to be overturned at the Supreme Court, incidentally.

  • digitaurus

    Be careful. We’re not used to carrying implements like that these days. I’m afraid you’re more likely to burn yourself with the torch and put your own eye out with the pitchfork (nasty things) than to cause any member of the judiciary any harm.

  • digitaurus

    What happened to the good old days when crusty old white male judges could be relied upon to be both “sound” and appropriately right wing in their views? Things have become very dark indeed.

  • digitaurus

    Good point. Presumably this is the argument that the government will be bringing to the Supreme Court?

  • digitaurus

    While you are lying back, I suggest you try thinking of England.

  • digitaurus

    Your wishes were to restore the supremacy of parliament weren’t they?

  • digitaurus

    Or, alternatively, might not. Go on, you decide.

  • digitaurus

    Yes, all these women are getting terribly uppity these days. If we’re not careful we will end up have several of the world’s most powerful nations headed by them. Oh, no, wait …

  • digitaurus

    Good point. Reform seems to have been something of a sticking point. I advocate a national system of random selection, along the same lines as Jury Service. Selected peers would be appropriately paid (say at the level which leads about 95% to accept the job) and serve 8 year terms, after which they get to keep the title. Have 12.5% selected every year. This would avoid ‘capture’ by the political parties which is the inevitable fate of an elected second chamber and would have many of the merits of the jury system.

  • digitaurus

    If your selfie had been a little lower we might have been treated to your boobies, alas not in any dress (fancy or otherwise).

  • digitaurus

    Thank you for an excellent article. It seems to me that the judges made a perfectly sensible judgment which might (or might not) be overturned by the Supreme Court based on careful, considered and independent examination and interpretation of the law of our land. I can only wish that people on both ends of the political spectrum could learn to be more respectful of the opinions of other people, particularly when they are just trying to do their jobs. Personally I don’t blame Liz Truss for donning a tin hat and keeping her head down. We are living in a period perilously close to mob rule.

  • Terry Howard

    Rubbish comments. Bingle’s right for once. One of the strengths of our democracy is an independent judiciary. The finer points of our constitution may not be universally understood but it carries on nonetheless. The High Court judgement referred back to legal principles established over 400 years ago. Imagine that! What strength. And even then, people died in a war to establish those rights. The courts interpret law, Parliament makes law. Parliament is sovereign. It is now for Parliament to enact the people’s expressed will. If you don’t like the way they do it, vote for someone else next time. If you don’t like our system, act to legitimately change it. If that’s not good enough for you, maybe Britain is not for you?

  • Snoffle Gronch

    Bunkum.

    This week saw a gaggle of metropolitan snowflakes indulging their personal opinions.

    Judicial incompetence, arrogance and lack of accountability have been a scandal for years. In future judges should not be able to sit without a jury – it’s the jury system that defends our liberties, not some boobies in fancy dress.

  • Friends! Like Peter Bingle and most of the Progressive Left, I naturally support Our Judges over the rabble! (Or do I? You decide. Some people appear to take everything I write at face value. Not always wise…)

    My latest Blog, “Thank Goodness For Our High Court Judges, Eh, Friends! It’s People Like Them Who Have, Literally, Made This Country – Which Thatcher Totally Destroyed – What It Is Today!” is now literally available, literally here:

    https://supportourjeremy.wordpress.com/2016/11/04/thank-goodness-for-our-high-court-judges-eh-friends-its-people-like-them-who-have-literally-made-this-country-which-thatcher-totally-destroyed-what-it-is-today/

  • Speedy

    The entire establishment is run by and for the benefit of upper middle-class bien-pensants. Time to tear the whole lot down and start again.

  • Jenny Wren

    No it isn’t

  • Malcolm

    How does an overly large, unelected House of Lords translate into, “that’s how democracy works”? An unelected Upper House is exactly how democracy in the UK doesn’t work. Why does nobody seem to have the courage to admit that it is anachronistic to have this left-over from history still part of a supposedly modern legislature? There should be no place in a 21c democracy for unelected individuals passing laws on the rest of us.

  • Lamia

    Not real liberals in the Lockeian sense. Just anti-democratic elitists who have appropriated the word ‘liberal’.

  • Lamia

    Well said. If anarchy is on the horizon, it is because the Remainers are trying to overturn democracy.

  • Lamia

    This is dangerous stuff and we simple can’t adopt a pick and choose approach to legal judgments. We either support the Rule of Law or we embrace anarchy.

    That is rich – stinking rich, one might say – coming after months of the Remain side fighting tooth and nail to reject the result of a democratic vote by the people.

    It is no surprise that many people are now extremely suspicious of the establishment following its almost unanimous campaign against democracy. It has let the mask slip, and the face behind it is very ugly indeed.

    We don’t trust you and your elite friends anymore, Bingle. And for that you have no one to blame but yourselves.

  • ale bro

    Parliament should have enacted a referendum bill to confront the constitutional problems head on, rather than relying on the half baked solution we have now.

  • Dr Evil

    This legal challenge should have been chucked out as simply vexatious. MPs agreed to abide by the decision of the referendum by I think a margin of 6 to 1. There was no need for this wretched woman’s challenge, nor the hairdresser, the plumber nor the ex pats.

  • Dr Evil

    If Cameron was so certain about winning the referendum he really should have made the result legally binding and not advisory. Those judges noted the status of the referendum yesterday in their judgement. They said they were examining and looking at the law. I expect this was the letter of the law and not the intent of the law.

  • Trojan

    The independence of the judiciary was shown to be compromised in the court ruling which might as well have been dictated to them by unelected bureaucrats in Brussels

  • Demon Teddy Bear

    This is drivel. There is no room for judicial involvement *at all*. We voted. We expect our wishes to be carried out. Anything else is oligarchy.

  • gelert

    It’s judicial activism – so beloved of liberals, aka progressives.

  • gelert

    Swales is a Blair crony.

  • Stephen John Turner

    Three ‘judges’, all with pro-EU credentials, ignore the will of the people and a 1-.4 million strong democratic mandate, but of course we are supposed to just lie back and accept it? No. Brexiteer patience with Remoaners is now at an end. This was a malicious misinterpretation of the law, and once it is overturned, we must look at judicial reform and make these so-called judges answerable for their actions.

  • Take Back The Streets

    Fair enough but it was a propaganda sheet and not an act of parliament. This is due to Government incompetence through not wording the act properly and not making any preparation for a leave vote.

  • Lancastrian Oik

    Not true.

    The terms were quite clear, and the Parliamentary vote in favour of holding a referendum was 6:1 for.

  • Take Back The Streets

    My take on it is that we are in uncharted constitutional territory. Parliament passed an act for the referendum. In UK, referenda have no constitutional significance and are, in theory, advisory (at best). However, for Parliament to invoke a referendum and then ignore the result would be nonsensical. In particular, the Government information for the referendum said that it would implement the people’s decision.

    Although we have had referenda before, this is the first time that the result has gone against the wishes of parliament and government. Not only that, nobody anticipated a Leave vote and there was no preparation or thought put into what might happen if the vote did go that way.

  • Lancastrian Oik

    See Blackburn v A.G. [1971] where Blackburn sought a declaration that by signing the Treaty of Rome the Government would be surrendering forever a part of the sovereignty of the Crown in Parliament, and that by so doing it would be in breach of the law. There was an application to strike out the action. The application succeeded both at first instance and on appeal.

    Lord Denning set out the general principle in relation to treaties.

    “Mr Blackburn acknowledged the general principle, but he urged that this proposed treaty is in a category by itself, in that it diminishes the sovereignty of Parliament over the people of this country. I cannot accept the distinction. The general principle applies to this treaty as to any other.

    The treaty making power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting upon the advice of her Ministers.

    When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts”.

    I’d also like to point out to Mr. Bingle that Gordon Brown signed the Lisbon Treaty (thus exercising the prerogative) after reneging on the 2005 manifesto pledge to hold a plebiscite on the putative European Constitution which was Identical in every significant respect to the Treaty but had been rejected in 2005 by French and Dutch voters in their own referenda.

    The terms and conditions upon which the referendum was held were clear; so why cannot the courts apply the principle in “Blackburn” to the unmaking of a treaty?

    Because this was activism in jurisprudential fancy dress, that’s why.

  • Sir_Hugo_Baskerville

    The question was simple – Remain or Leave.
    There were no flavours of either option.

  • Sir_Hugo_Baskerville

    “One of the Brexiters’ main fears of Parliament being involved in the triggering of Article 50 is the likely sceptical attitude of the House of Lords in which the government does not have a majority. Sorry but that is how democracy works”
    Democracy?
    The unelected HoL blocking Brexit is “democracy”, but the 17.4 million votes to Leave the EU, the biggest vote for anything ever, can be ignored on the whim of three EUphile judicial activists posing as impartial judges?

  • Bogbrush

    There’s two options; drag this stupid argument on and on, maybe win but then hack everyone off or……

    Put a straightforward bill to the Commons asking for it to vote the Government right to invoke the Article. Make it a 2-line Whip for the Conservatives and make clear that it’s a Confidence matter so Opposition MPs who vote against can face their electorate on the matter if they wish. Tell the Lords that you have 1000 candidates ready to be enobled if they thwart it, and move on.

  • ale bro

    I can’t accept the faux outrage with the judiciary – the problem itself stems from the framing of the referendum question. It’s now clear that the question itself was clearly not sufficiently well defined or put in a legal framework that would allow the country to proceed with Brexit once the yes vote was delivered. So in my view this crisis has been caused by the government’s incompetence, not by the application of the rule of law.

  • Dr Evil

    Didn’t any of these three judges read Cameron’s 9 million quid propaganda sheet and what is said about the government, the government, honouring the outcome of the referendum? Not parliament, the government. I am going to get my pitchfork and flaming torch ready.

  • A real liberal

    Sometimes this sort of highfalutin psephological sophistry is engaging and can even be thought provoking and mildly entertaining. But not this time. What makes it different? 17.4 million votes is what makes it different. The largest number of UK voters ever to vote for the same thing (and don’t try the ‘but what did they vote for?’ nonsense). So keep your metropolitan, bien pensant self-indulgence for the Islington Bugle, Mr Bingle. This is a constitutional crisis; and idiots like you peacocking that it not will just make it worse.

  • brownowl

    The current House of Lords is certainly not “how democracy works”. It is, after Tony Blair’s ill-advised Constitutional vandalism with its unintended consequences, stuffed to the gunwales with useless cronies at all levels. Just look at the shower David Cameron recently ennobled just to try to boost his numbers. How can 104 Lib Dems Lords be representative or democratic?

  • Tommein

    How many times have we seen the greedy lawyer stood next to his smirking multi-millionaire client that has just been found not guilty on a technicality while everyone with half a brain can see that they are guilty.

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