Branded ‘enemies of the people’ by the media and falsely accused of taking sides in Brexit by Conservative ministers, the judiciary is under threat - as is democracy
Critics of the prime minister tend to deride him as inconsistent; a popularity obsessed, anthropomorphised Groucho Marx quote for whom fidelity to principle can never trump fidelity to self-interest. But in Boris Johnson
’s defence, there is one belief to which he has remained steadfast over the past 12 months: his determination to control the independent judiciary.
His interest in the justice system was trailed in his final Telegraph columns last summer, in which he filed falsehood-strewn clickbait railing against our “crook-coddling criminal justice system” and vowing to “root out the leftist culture of so much of the criminal justice establishment”.
However, since entering Downing Street he has found himself moved, both by experience and by the counsel of that ubiquitous Unnamed Downing Street Source, to train his attentions more broadly.
The problem with our justice system, it has been decreed, is the judiciary. Cue the anonymous and self-aggrandising media briefing that the PM’s chief adviser Dominic Cummings “wants to get the judges sorted”.
The course was set at the beginning of Johnson’s premiership when he unlawfully prorogued parliament and then sent out pliant ministers to spread misinformation about the judges who had dared point this out, from the business minister Kwasi Kwarteng telling the BBC that “many people … are saying that the judges are biased” to Johnson’s own response when asked about the supreme court decision, chuntering: “There are a lot of people who want to frustrate Brexit.”
It was back on 23 June 2016 that more than 17.4 million voters expressed their desire to leave the European Union in a referendum referred to by Prime Minister Theresa May in 2019 as “the biggest democratic exercise in our country’s history”.
Just over four months later three unelected judges apparently attempted to overturn the democratically expressed will of the British people.
Ruling on judicial review proceedings brought by Gina Miller, the high court judges held that the process for giving notification to leave the EU under article 50 of the Lisbon treaty legally required an act of parliament, and that the notice to withdraw could not be given by the government using its prerogative powers.
The front page of the Daily Mail the following day made a statement that echoed around the world. “ENEMIES OF THE PEOPLE” was emblazoned above photographs of the three judges involved.
A profile of each was provided on the Mail’s website: “One founded a EUROPEAN law group, another charged the taxpayer millions for advice and the third is an openly gay ex-Olympic fencer.”
The Telegraph opted for a similar front page: “Judges vs the people”. Sajid Javid, then communities secretary, told the BBC’s Question Time that “This is an attempt to frustrate the will of the British people and it is unacceptable.”
When May was asked whether she was concerned about the impact of the Mail’s headlines, she chided: “It is important that we have a free press.”
On 24 January 2017, the supreme court upheld the decision of the high court. As rage swirled on social media and Nigel Farage
accused the “establishment” of trying to “frustrate” Brexit, Iain Duncan Smith declared that the decision had created “real constitutional issues about who is supreme”.
As the future foreign secretary Dominic Raab soberly warned, an “unholy alliance of diehard Remain campaigners, a fund manager [and] an unelected judiciary” had “thwart[ed] the wishes of the British public”.
Where to start with the errors strewn throughout this reporting and commentary? On no possible interpretation of the judgments did either the high court or the supreme court “block Brexit”. They simply delineated how, as a matter of law, Brexit could be achieved – a route that the government duly followed and accomplished within two months.
Similarly, the courts were not “straying into political territory”. As the high court judgment clearly stated, all sides to the litigation, including the government, agreed that the case raised “a justiciable question which it is for the courts to decide”, and one which was “a pure question of law”.
But the reporting and commentary betrayed a fundamental misunderstanding of how our constitution actually works. Concepts that are merrily tossed around in political discourse as if commonly and widely understood – such as parliamentary sovereignty, the separation of powers and judicial independence: the cornerstones of our democracy – were on this occasion so poorly discussed that it suggested widespread unfamiliarity among the political class with the very basics of how our country operates.
On the last of those three concepts, judicial independence, there was an even graver problem. The reaction to this entire episode, by ministers, parliamentarians, media and the public, exemplified a sprawling global phenomenon in which the independence of the judiciary is under direct attack.
We have all been fed accusations against lily-livered liberal judges prioritising the rights of illegal immigrants, money-grabbing compensation claimants and career criminals over the law-abiding British public.
But the “Enemies of the People” headline and associated commentary, personally attacking the individual judges, felt like a significant, emblematic moment; a sudden, choking realisation of how careless we have been in our treatment of our constitutional principles, and how close we might be creeping to doing irreparable damage to the framework of our democracy.
Johnson’s government charted a deliberately provocative course against the judiciary in September 2019, after the supreme court unanimously ruled that the prime minister had acted unlawfully in advising the Queen to prorogue parliament.
A brief reminder of those inconvenient facts: Johnson advised the Queen to prorogue parliament for an unprecedented five weeks in the run-up to “Brexit Day”, briefing in the press that this had nothing to do with stifling parliamentary scrutiny of his plans to force a “no deal” exit from the EU, and was instead all to do with preparing a Queen’s Speech.
He then refused to sign a witness statement confirming this on oath, or indeed to offer any reason to the courts for the prorogation. The supreme court ruled that proroguing parliament, and thereby preventing MPs from holding the government to account, with “no reason, let alone a good reason” was unlawful.
The supreme court’s unanimous judgment, delivered by Lady Hale, was damning for the government. Parliamentary sovereignty and parliamentary accountability, the foundational principles of our constitution, could be undermined if the government was able to prorogue parliament without any legal limit. There must, therefore, in order to maintain parliamentary sovereignty, be some legal limit on the power to prorogue.
As with the Miller decision, three years earlier, the ruling was quickly, falsely, reframed as the judges taking sides on Brexit. Leader of the House of Commons Jacob Rees-Mogg denounced the judges as having effected “a constitutional coup”.
In truth, while a judgment of enormous significance, the decision simply involved the application of established principles of common law to a novel situation. The government’s response, rather than apologising for having given the Queen unlawful advice, was to attack the judges who pointed this out.
Since the turn of the year, there has been a series of high-profile court decisions in which judicial reviews have confirmed that the government has acted unlawfully.
In February, the court of appeal ruled against the Home Office when it attempted to deport 25 convicted Jamaican nationals, having detained them in conditions where they could not access legal advice. Cummings’s response was to demand “urgent action on the farce that judicial review has become”.
Last month, the court of appeal ruled that British-born Shamima Begum ought to be permitted to return to the UK from a Syrian refugee camp to appeal against the Home Office’s decision to deprive her of her British citizenship, the Home Office’s own lawyers having accepted that she could not otherwise possibly have a “fair and effective” hearing.
Johnson told the Sunday Telegraph that the solution to such pesky judicial interference might be to deprive Begum and those like her of legal aid. Having pondered whether “judicial review does indeed go too far”, he declared it “odd and perverse” that as a nation we allow those whose lives are seriously affected by executive fiat to have access to legal redress.
It is with such high regard for our fundamental constitutional principles that the government has just announced the composition of the commission on the constitution, rights and democracy, following through on its 2019 manifesto commitment to hold a constitutional review to “restore trust in democracy” by ensuring that judicial review “is not abused to conduct politics by another means”.
The problem, of course, is that “conducting politics by other means” is a misrepresentation of the purpose and operation of judicial review. Public authorities must act within the law.
If they do not, judicial review exists as the corrective. Judicial review is not, as politicians would have the public believe, a tool by which judges overrule a political decision that they disagree with. The questions that the courts decide are those are of lawfulness, applying common law principles developed over centuries.
Politicians being frustrated by the courts is the sign of a healthy constitution. You would not know it from the government’s narrative, but the overwhelming majority of applications for judicial review are resolved in the government’s favour; the charge of judges abusing trust in democracy is just a complaint that the courts are not conferring on Johnson a 100% win rate.
And the key point, often marginalised and forgotten, is this: we live in a parliamentary democracy. The courts are required to follow the law passed by parliament. If parliament believes that the courts have misunderstood the effect of the law, or misinterpreted it, parliament can - at any time it has not been arbitrarily and unlawfully prorogued - legislate to make its intentions clear.
But that’s not what this government wants. Led by a prime minister indulged by a lifetime of never being told no, and guided by a self-styled “disruptor” with no respect for truth or the rule of law, we have an executive which, perhaps uniquely, has no intention of deferring to the courts or to parliament, or being in any way bound by the law.
It is, in the scheme of things, trivial but nevertheless emblematic that when Cummings himself was challenged about breaking the law during lockdown, the government not only gaslighted the public about the facts, but enjoined Suella Braverman, the attorney general and superintendent of the Crown Prosecution Service responsible for prosecuting breaches of lockdown regulations, to abuse her office by offering a public opinion on Twitter vouchsafing the lawfulness of Cummings’ conduct.
This was around the time that Priti Patel
, the home secretary, irritated at judges having the audacity to rule against her in immigration detention bail hearings, sent a letter attempting to influence a senior immigration judge, and then, when the story was leaked, permitted her civil servants to lie about it on social media.
Institutions are expected to bend to the whim of the prime minister and his supplicants. The new commission is no different, which is why in Edward Faulks, the PM has appointed a chair who has not only written extensively about his own settled views on “the courts’ incursion into political territory”, but was a justice minister under Chris Grayling from 2013 to 2015 at a time when they were telling the Daily Mail that judicial review was a “promotional tool for left-wing campaigners” and legislating to restrict its use. Little surprise that he has also called for the repeal of the Human Rights Act, another awkward constraint on ministerial caprice.
Judges are tough critters, robust enough to deal with the rough-and-tumble of strong media criticism and the occasional politician stepping out of bounds. The reaction of Sir Terence Etherton to the “Enemies of the People” story is a case in point. JK Rowling tweeted:
“If the worst they can say about you is you’re an OPENLY GAY EX-OLYMPIC FENCER TOP JUDGE, you’ve basically won life.” Sir Terence and his husband had the tweet put on a mug.
However, judges are also human. And the cumulative effect of years of chipping away at the foundations is starting to show. In the immediate aftermath of the headline, the lord chief justice sought advice from the police for his protection – the first time in his career that he had needed to do so. More than half of all judges surveyed reported that they had feared for their personal safety.
Threats of hostage-taking, assault and death have become common. Some have been physically assaulted in court.
Not all of this can be attributed to media and political comment; judges are dealing with the most combustible elements of society and making decisions that can overturn people’s lives.
There is a heightened risk inherent in the job. But it would be the height of naivety to pretend that printed and tweeted words do not have consequences.
And it is not merely a British phenomenon. In the US not only has the supreme court divided along party lines since 2010, but President Trump makes unrestrained attacks on “so-called” judges and “Obama judges” who rule against his unlawful executive conduct.
While British people may laugh at the pantomime of Trump tweeting “See you in court!” at judges, here home secretaries are indulged in their threats to “fight” judges for their liberal treatment of “foreign criminals”. Trump’s rhetoric is ours.
If we lose judicial independence, we lose the rule of law. The day a judge makes a binding decision affecting the rights and liberties of one of us, not on the legal and factual merits, but with a nervous glance to the press and public galleries, or with a beady eye on political favour or punishment, is the day that the decay in our democracy turns terminal.
Judicial review is what protects us, the individual, from the overbearing might of the state. It exists to ensure that, however venal, corrupt or malign the politicians who govern us, we are treated equally and according to the law.
The government’s claims to be restoring trust in democracy by rolling back these checks and balances mask an audacious power grab, allowing them to govern unlawfully and without accountability.
Casting a glance across the world, we see the logical consequences taken to their grisly extremes. Every would-be authoritarian regime has the judiciary in its sights.
From the Polish Law and Justice party attempting to remove a third of its senior judges, to Turkish president Recep Tayyip Erdoğan dismissing a quarter of all judges following the failed military coup in 2016, to Hungary’s Viktor Orbán’s “climate of fear” leading to the removal of unfavoured judges and the installation of party loyalists.