Sadly, politicians have been trying to turn the public against judges for a very long time.
First published in September 2019.
Alongside his attacks on Parliament’s ‘moral authority’ on Wednesday, Attorney General Geoffrey Cox gave a subtle defence of the rule of law: robust disagreement with judgments was one thing, he said, but an attack on judicial motives and independence was another. Even Boris Johnson preceded his criticism of the Miller/Cherry decision (Miller 2) by saying he had the ‘highest respect for our judiciary and the independence of our courts’.
Subtlety was never going to be the tone that won on the day, however, and these fine distinctions were overwhelmed by much louder and generalised attacks on the judiciary. Cox agreed that he would ‘look again at judicial appointments’ in the wake of Miller 2. Indeed, the right-wing chorus calling for reform of the ‘remainer’ Supreme Court and its power to express constitutional principles grew stronger all day: from Jacob Rees Mogg branding the judgement a ‘constitutional coup’ to the menacing threats of Desmond Swayne calling for abolition of the Supreme Court and a return to the ‘status quo ante’.
'We should have a commitment to abolish the Supreme Court'— ITV News Politics (@ITVNewsPolitics) September 25, 2019
Tory MP Desmond Swayne tells ITV News the Supreme Court 'well overstepped the mark' in its prorogation judgement and says he wants rid of it https://t.co/LP6RS7IrJZ pic.twitter.com/iSKjAgxyCI
These voices echoed Leave EU’s branding of the ‘elitist Remainer logic at the top of our judiciary’. In short, the noise on the right is now relentlessly focused on neutering the power of the judiciary, with leavers persisting in calling judicial review of executive action a ‘European invention’. This echoes the Daily Mail’s response to Miller 1 casting Supreme Court judges as the ‘enemies of the people’.
Brexiter trashing of independent domestic institutions - judiciary, parliament, civil service - tells against any sincere belief in "taking back control"— David Allen Green (@davidallengreen) September 25, 2019
Instead, it is populist nationalist authoritarianism
Arbitrary government on the back of "the will of the people"
Of course, without the Supreme Court’s insistence that Parliament had a meaningful role in the process of leaving the EU in Miller 1, hard Brexiters would have had less chance to bring down Theresa May’s deal. But hard Brexiter populists doggedly ignore this point. Their failure to acknowledge this irony, is not a case of legal amnesia however. Attacks on constitutional institutions, be it Parliament or the Supreme Court, is now a firmly embedded strategy of ‘populist nationalist authoritarianism’ (in David Allen Green’s words) in the UK and beyond.
Politicians and the courts
Most liberal constitutionalists link these assaults to Brexit, voicing growing anxiety at this populist danger. But the sad truth is that attacks of this kind on the judiciary are not new. Remember Catgate? When Theresa May blamed a local court for blocking the deportation of a Bolivian citizen over his pet cat? Remember the rabble that rose despite the then Minister of Justice, Kenneth Clarke, correcting the misrepresentation? The story exposed how little respect the right of the Tory party had then for the rule of law, and how readily they twisted judgments to further their own political agenda. It taught us also about the right-wing press. Despite clear criticism of May’s mendacious account of the judgment, the Daily Mail continued to defend her view that the cat saved the day.
Why wouldn’t it? The tabloid press, and the Daily Telegraph, had been peddling their alternative accounts of human rights cases with determination since the Human Rights Act came into force. The examples are numerous. After Abu Qatada was decided, Theresa May stood up in Parliament during and after the debacle and attacked the decisions using them as a basis to rubbish the European Court of Human Rights ‘interpretation of human rights’, and for repealing the Human Rights Act. She was led by the tabloid press on this for years. Prior to this, May had declared herself and the government ‘disappointed and appalled’ by a Supreme Court decision that granted review rights to persons placed on the sex offender’s register. She was dutifully following the tabloid response to the judgment. Given all this, it is small wonder that May turned her attack on ‘left wing lawyers’ at the Tory party conference soon after becoming PM. She was speaking out what she had been thinking for years, now with permission to junk political correctness, and her party supporters (fed on a diet of tabloid law reports) loved her for it.
Attacks on the rule of law go back further than May, and beyond the executive realm. A sizeable proportion of Parliament defied the UK’s clear treaty obligations in response to the 2006 Hirst decision on prisoner voting. The rule of law was mentioned by the Attorney General, Dominic Grieve, in that debate. He told them that the UK government was bound by its international obligations, and even suggested that the Government would be behaving ‘tyranically’ in not following a judicial decision against the Crown. His measured plea didn’t move Parliament much, which proudly rejected the legitimacy of the decision and refused its implementation for more than a decade, much to popular approval.
So it is welcome that after the Miller 2 decision last Tuesday, a sizeable cross section of the UK stood up for the rule of law, and protested against assaults on the independence of Supreme Court judges. Such a widespread response is understandable. This time, the rights holders aren’t marginalised minorities such as criminals, terrorist suspects, sex offenders or immigrants. This time, the court has ruled that a prime minister cannot simply suspend the democratically elected chamber of the national parliament as and when they like. Certainly, the attacks on the independence of the Supreme Court’s latest prorogation decision matters to all voters, as it is also an attack on everyone’s rights to political representation in a parliamentary democracy.
But has this push back come too late? Can the tide still be turned after years of mute public and political response? And is it possible to undo two decades of politicians and tabloid media refusing to engage honestly with the substance of judicial decisions with which they disagree?
To resist the erosion of the rule of law we have to understand the challenge with crystal clarity. Populism takes hold precisely where it successfully engages ‘the people’ in a narrative that contests the rule of law ideal. It builds this narrative by peddling inflammatory and mendacious accounts of judicial reasoning and questions judicial independence. That is precisely because populism’s constitutional project needs judges to make way for authoritarian power underpinned by popular sovereignty (see inter alia Blokker, Ginsburg and Huq).
And this populist strategy is working. Hard Brexiters in the UK are watching and learning from Poland, Hungary, Turkey, Russia and the US (to name a few), that successful attacks on the legitimacy of the judiciary can serve their authoritarian ends. They can see that this success is closely interweaved with the decline of the public’s devotion to the rule of law. In this pursuit too, UK populists are supported by apologist Professors in constructing what Thomas Poole so aptly names ‘the Executive Power Project’.
So to be clear, the discussion of Miller 2 represents a much larger challenge. The fight for liberal democracy, to stem the tide of authoritarianism, critically depends on establishing a defence of the rule of law which has a real purchase on the public imagination. This narrative must be capable of persuading the broader public, and non-experts, of the essential value of constitutionalism. If we are unsuccessful in establishing this counter-narrative, liberal democracy as a whole is in grave danger.
When fascism comes it will be wrapped in posh accents from pompous, entitled, over-educated caricatures chuckling at their own law-breaking.— Anna Turley MP (@annaturley) September 25, 2019
Last night, Anna Turley MP tweeted: ‘when fascism comes it will be wrapped in posh accents from pompous, entitled, over-educated caricatures chuckling at their own law-breaking’. As someone who has observed right wing coverage of human rights judgments over the last twenty years, it is hard to shake the feeling that this tipping point is very close indeed.🔷
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