Thursday 12 September 2019

The intrusion of Britain's judges in politics is increasing and is to be deplored

Richard Ekins, Professor of Law at Oxford, is appalled by the Court of Sessions' decision yesterday and demolishes it in the Spectator.
"In addition to seeming internally inconsistent, the Court’s ruling appears to be grounded in a novel elevation of very general constitutional principles into actionable propositions of law. So the Court’s summary refers to parliamentary scrutiny of the executive being ‘a central pillar of the good governance pillar enshrined in the constitution’. But there is no such free-standing pillar. What is the source of law for the claim that ‘good governance’ is legally actionable? The Court might answer that it stems from the principles of democracy and the rule of law. But the courts do not have free licence to uphold ‘democracy’ writ large and, save in special circumstances, they uphold the rule of law by applying settled law, not by departing from settled law in the name of some abstract principle.
"Today’s decision by the Court of Session is a mistake. It forms part of a continuing, worrying trend for politically motivated litigation to secure some success in our courts, a trend which it is to be hoped the Supreme Court will bring to a halt."
Judges are impinging on political decisions. Many other decisions are delegated to committees of experts or taken over by committees of international organisations, whose decisions become international law and are treated as if they have an almost sacred status. 

Members of Parliament are no longer independent men and women allowed to do as they please, to have jobs in the real world, if they choose, and to saunter into the House to hear and make speeches and chat. Instead they became social workers and bureaucrats and they too sit on committees and make reports. 

Politics becomes reduced to facts and figures and these are things about which experts are best equipped to make judgements. People who are interested in conservative ideas like the nation or sovereignty seem in this world at best rustic hicks, not very bright, at worst charlatans or demagogues.


  1. Why should politics not be reduced to facts and figures? I am sure 1.5 million British citizens residents in Europe will prefer facts and figures to "No Deal Brexit" on 31.10.2019 when they contemplate uncertain future UK pension, uncertain health coverage and withdrawal of the right of free movement and mutual recognition of qualifications. Ideas have a place, but at the end of the day, it is how they are implemented which gives them value.

    1. From the early fifties on, politics in England became reduced to a branch of economics. Political ideas still mattered but they were expressed in the form of economic theory. Big issues were avoided carefully by politicians. America by contrast had real debates about real issues.

      Looking back we might have been better to have had referendums on hanging, divorce, abortion, immigration, the demolition of our Victorian cities, etc.

    2. Looking back we might have been better to have had referendums on hanging, divorce, abortion, immigration, the demolition of our Victorian cities, etc.

      The problem is that none of those things represented political defeats. They were cultural defeats. By the end of the 90s the Culture War was lost.

      The social conservative/cultural conservative side might have won referenda on all those issues forty years ago. Today they would lose on every one of those issues.

      There has been a cultural revolution, not a political revolution. It has not been a spontaneous cultural revolution. It has been carefully nurtured and carefully orchestrated.

      The last chance was the Thatcher era but Thatcher persuaded people that the only value that mattered to conservatives was money.

    3. I am afraid that I often don't agree with you but I agree with all that and especially your point that this cultural revolution was orchestrated from above. This is very true of feminism as well of course as mass immigration. For the record, I have always opposed hanging, though the issue does not interest me and I would not be angry or very unhappy were it brought back.

    4. The problem with the cultural revolution is that it's going to be very hard to reverse. It got going in a major organised way after the Second World War. It took the globalists half a century to win the culture war, and they've spent another quarter-century mopping up the last pockets of resistance.

      It's likely that it would take just as long to reverse the effect. Except that the globalists had access to unlimited funds, they had the support of the media and they had very significant elite support. They also had organisation, discipline and leadership. We have none of those things.

    5. 'Progressives, as distinct from socialists and social democrats, are more concerned with attitudinal leftism rather than its more mundane economic cousin. Policy is always broad, untroubled by detail and judged by how successfully it provokes the other side (considerations of impact and efficacy come later). Opponents are not just ideological opposites but cultural enemies too — those with the wrong tastes, instincts and assumptions — and drenching them in dehumanising, derisive language is de rigueur. Fellow progressives who express queasiness about personal attacks are scolded for their weakness: don’t you know these bastards deserve it?

      Because modern progressivism is a clique driven by fashion and ever-shifting yet fiercely asserted concepts of virtue, it cannot help but be snide and angry towards those who fail to conform — or fail to know there’s something they should be conforming to. 'All this is underpinned by the unshakeable conviction that they are the moral elect and those who dissent heartless reprobates with a near-demonic enthusiasm for injustice and cruelty.'
      Stephen Daisley, who admits to having voted in 2015 for Ed Miliband and chaos.

  2. Matthew Parris today in the Times:

    "The Court of Session in Edinburgh took it upon itself to discover the “true reason” for the prime minister’s decision and ruled that because this differed from what he said, the decision was unlawful.

    "This is a road the law cannot travel. In politics, a dirty old game, few decisions have a single “true reason”. People dissemble. Intentions are mixed and murky. I disagree with the suggestion that the government should now reveal its real thinking behind prorogation. This would concede the legal reasoning behind the Scottish claim that a prime minister’s motivation is a matter for the courts. It is not. I shouldn’t be at all surprised if Johnson “lied to the Queen”; he lies to lots of people. If the voters get saddled with a compulsive fibber as prime minister, the voters have a remedy. Chuck him out. The ballot box and not the judiciary is the way to do this."

  3. This is a very good article.