Tuesday 17 September 2019

Are British courts still politically neutral?

The broadcaster David Dimbleby covered the results of the referendum and tried not to show how badly he took it. Today he is covering the Supreme Court hearing to decide whether Her Majesty’s Government acted in bad faith when they advised the Queen  to prorogue Parliament. He said:
“I lived through Suez, the miners’ strike, I lived through the poll tax debate and the trouble then. I lived through the Iraq demonstrations — I’ve never seen the country so divided as this. The next six weeks are clearly critical. I’ve never known the country so seriously riven by argument.”
But the Court has no window into men's souls, to quote the first Queen Elizabeth. Is lying to a Queen, though a very bad thing to do, illegal? And can the mixed motives of ministers, or anyone else, be pinned down and dissected satisfactorily? 

The answer to the latter question is obvious.

Former Supreme Court Justice Lord Sumption, whose judgment seems to have been coloured by his strongly Remain views, which I suspect he shares with almost all the
higher judiciary, told BBC Newsnight last night:

“My own view is that the orthodox opinion is the one held by the English courts [which dismissed the Miller case at first instance]. But one has to accept that if you behave outrageously and defy the political culture upon which our constitution depends [the Government did not], a lot of judges are going to be tempted to push the limits. And the trouble is Boris Johnson has taken a hammer and sickle to our political culture in a way that is profoundly provocative to people who believe that there ought to be solutions consistent with our traditions.”

He is right that the Scottish judgment looks utterly badly decided and as if it were decided for political reasons. He is saying that the Supreme Court, will be tempted to bend the law for political reasons and if they find for Miss Miller and Sir John Major this will be the explanation

If the Supreme Court does rule for the plaintiffs and against the Government, the public will never again believe judges are politically neutral. Judges in the USA and many European countries are known to be politically motivated (think of the progressive judges ruling against Donald Trump's immigration orders on specious grounds, think of Spanish judge Baltasar Garzon issuing a warrant for Pinochet's arrest, think of left-wing  Italian judges). British judges have never hitherto been thought to be partisan although they have become very socially liberal.


  1. But the Court has no window into men's souls, to quote the first Queen Elizabeth. Is lying to a Queen, though a very bad thing to do, illegal?

    I suspect that the first Queen Elizabeth would have taken a fairly dim view of it. The miscreant might well have found himself keeping an appointment with a guy with a large axe.

    But those were more enlightened days.

  2. Evelyn Waugh said 'In a more civilised age Hans King would have been burnt' and meant it. When I see the state of the Church today Waugh has my sympathy.

    1. When I see the state of the Church today Waugh has my sympathy.

      If the Catholics started burning heretics today they'd be kept busy.

      I think you can make a good argument that liberal democracy has failed because politicians do not face any meaningful consequences for failure. The idiots who blundered their way into the First World War got off scot free. Asquith got a peerage for making a major contribution to the destruction of western civilisation.

      Had men like Asquith faced some genuine consequences for their folly it might have done a great deal to counteract the destructive mood of postwar disillusionment.

      So maybe it would be wise to hang a politician from time to time. To encourage the others.

    2. Yes there would be a lot of heretics burnt at the stake. Lots of Catholic professors and left-wing nuns.

  3. Many international contracts contain a clause directing disputes to English courts in recognition of their apolitical and uncorruptible character. One imagines that if the Supreme Court begins to consider political arguments in reaching decisions this perception of English courts will begin to change, at great cost to the UK as a financial center.