Warning Shots
James Butler · The Press v. the Judges
The British papers are at it again: a ‘loaded foreign elite’ (the Sun) have triumphed in their court challenge to the prime minister’s plan to use the royal prerogative to trigger Article 50; the judges have been declared ‘Enemies of The People’ on the front page of the Mail (the Telegraph, with venerable caution, has merely decided that the judiciary are ‘at war’ with the people). The judges’ personal lives are probed for telling details: one has an interest in European law, another – imagine the Mail journalist’s delight – is an ‘openly gay’ former Olympic fencer, practically a textbook decadent cosmopolitan. The Express, ever aware that it’s poppy season, says we are in the gravest crisis since Churchill exhorted us to fight on the beaches.
These are warning shots, supposed to straighten the spine of any MP or judge considering putting further obstacles in the way of the Brexiteers: if these are the headlines over a relatively minor court case, just think what would be in store for anyone voting against a Brexit bill should it ever be moved in Parliament. Perhaps the papers will Photoshop targets on their enemies' foreheads next time. Out of fashion for some time, the idea of the popular will is in vogue again, with the newspapers claiming to know it and defend it, and politicians claiming justification by it; Sajid Javid, the communities secretary, tried on such unfamiliar Robespierrean accents on the BBC last night.
Social media are awash with comparisons to Nazi or Stalinist categories of popular enemy, and though febrile headlines on their own aren’t sufficient grounds for those comparisons, they are indices of an ailing democratic culture. The recurrent paranoia about a ‘foreign elite’ is bad enough – it’s a mere hop and skip away from older and more familiar conspiracy theories – but subtler and more insidious is the relentless personalisation of the judges and the papers’ impatience with judicial checks on executive power or deliberative process. Personalisation says that it is inconceivable that a judge might carry out his judgments without thinking of private benefit or preference; invocation of the popular will implies that Parliamentary checks or deliberation can only frustrate it. The cynicism is corrosive of the very possibility of disinterest.
A commonplace of left-wing criticism of liberal democracy is that its formal equalities are accompanied by systemic inequalities which bias and warp its institutions; liberalism poorly conceals a horror and disdain for actual democratic practice. Certainly, some people are fantasising that this ruling will permit politicians to ignore the referendum entirely, citing Burkean cliché in their defence. This is the mirror image of the headline-writers' anti-deliberative fantasy of a sovereign executive cutting through the tangle of Parliament or judicial check. Both fantasies are equally unlikely, both are founded in a contempt for democracy either as mass participation or deliberation, and both feed, from different sides, the resentment of a sizeable portion of the country who feel the whole thing’s a stitch-up.
It is possible to criticise judges for bad judgments, or the judiciary as a class for the narrowness of its make-up, or to criticise a democratic system as imperfect or incomplete. But that isn’t what’s happening here. Writing about the role of newspaper coverage in influencing the political mood, Chris Leslie adapts the notion of ‘metarepresentations’ – a psychological term referring to the capacity to conceive of other people as thinking beings, and consequently reflect on what they are thinking – to describe the press construction of an impression of consensus. In this case, the papers claim to know the popular will with such clarity that they can represent what everyone else is thinking; in suggesting that a gaggle of elites is at war with the people, they keep open the suspicion and division on which the passion and promise of the Brexit vote rested.
It was not so long ago that some of these papers printed pages of impostured shock and grief when a pro-immigration MP was murdered, the same papers which print lie upon lie about migrants and defame those who refuse to accede to their xenophobia. Thomas Mair, charged with Jo Cox's murder, entered his name in court as ‘death to traitors, freedom for Britain’. Perhaps he should have considered a career as a headline-writer.
Comments
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4 November 2016
at
10:49pm
streetsj
says:
If the Supreme Court overrules the High Court, could the Plaintiffs appeal to the European Court? Or is it clear that this is a matter for the UK courts only?
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5 November 2016
at
10:14am
jwb1953
says:
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streetsj
My rights as a European citizen are being curtailed by a mob. This should not be just a matter for the U.K. Courts.
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5 November 2016
at
3:07pm
cwritesstuff
says:
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streetsj
It doesn't relate to EU law, so it stops at the SC.
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5 November 2016
at
3:10pm
Mgogorman
says:
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streetsj
The ECJ rules on compliance with the EU treaties. Art 50 says application to leave must be in accordance with national constitutional arrangements. So if Supreme Court rules in favour of the government that would mean that the constitutional requirements have been met, and therefore no scope for reference to the ECJ.
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5 November 2016
at
8:50pm
streetsj
says:
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Mgogorman
Thank you. All.
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7 November 2016
at
5:38pm
patrick hutchinson
says:
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jwb1953
Countersign! Our rights have been denied and our constitution subverted!
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7 November 2016
at
5:52pm
patrick hutchinson
says:
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cwritesstuff
The whole 'unwritten' British constitution is about the gradual imposition of the 'Rule of Law', i.e. the successful resistance to arbitrary power - be it mob power, or that of special interests disguised as such ! - by legal process implemented through Parliament as the real holder of sovereignty! If Parliament won't - or is too cowardly - to defend the rights of the people against the rabble-rousers manipulating the mob, why not have recours to the judgment of a higher instance which has retained the strength and the will to defend such principles - at least as long as we are still Europeans!
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7 November 2016
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6:03pm
John Macaskill
says:
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streetsj
In fact there could be a reference to the ECJ. In the Divisional Court all the parties agreed that once a notice is given under Article 50 the notice cannot be withdrawn (paragraph 10 of the judgement). This was a crucial matter of common ground and it is by no means a matter that could not be challenged. The construction of Article 50 (including whether or not a notice once given can be withdrawn) is a matter that can only be decided by the ECJ and it is not inconceivable that the Supreme Court does not accept the common ground of the parties and asks the ECJ for a ruling on the point.
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7 November 2016
at
8:36pm
streetsj
says:
@
John Macaskill
Ditoo
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7 November 2016
at
11:53pm
Gilles Ivain
says:
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streetsj
It would be the sweetest form of irony if they could.
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5 November 2016
at
8:01am
IPFreely
says:
That's what you get when you don't have a written constitution.
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5 November 2016
at
3:10pm
cwritesstuff
says:
@
IPFreely
Because when one has a written constitution, everything is automatically clear? Is that why slavery was previously permitted under the US constitution, then was not? Why abortion wasn't permitted, then was?
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7 November 2016
at
10:43am
Rikkeh
says:
@
cwritesstuff
Although I don't agree with him, Carl Gardner is a sensible lawyer who disagrees with the Court and argues well here: https://www.headoflegal.com/2016/11/04/why-the-high-court-got-the-law-wrong-about-brexit/
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7 November 2016
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5:52pm
John Cowan
says:
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cwritesstuff
Slavery was permitted under (though not authorized by) the U.S. Constitution until the passing of an official amendment to prohibit it. Abortion was permitted (tacitly) under the laws of every State at the time the Constitution was established. State laws were passed to prohibit it, and they held until the federal Supreme Court established that such laws contravened the U.S. Constitution.
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5 November 2016
at
10:58am
rm1
says:
Everything you say about the conduct of the papers is justified, but the "will of the people" is known following June 23rd as such any attempt to circumvent it aggravates the crisis of democracy in the UK.
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5 November 2016
at
3:12pm
cwritesstuff
says:
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rm1
Is it? I think the "will of the people" by a bare majority was to exit the EU at a certain point in time. It wasn't for a "hard Brexit" or a "soft Brexit" or anything else. It was silent on that. It was also based on lies relating to immigrants and extra £350mm a week which never existed.
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7 November 2016
at
10:45am
Rikkeh
says:
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rm1
The thing is, we're a "liberal democracy".
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7 November 2016
at
6:00pm
patrick hutchinson
says:
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cwritesstuff
Absolutely agree! There is no other valid patriotism than 'constitutional Patriotism' (Habermas) and that means to lay down your life for the defense, not of a territoy, an ethnic group or a flag, but for your rights and your laws born of due process!
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6 November 2016
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5:34pm
riskaverse
says:
There has been much comment on this judgment and the aftermath, and like every other lofty appraisal I've seen, the writer has mashed up the two things, so that it becomes hard to disentangle the ridiculous language of the tabloid headlines from the implications of the judgment itself.
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7 November 2016
at
5:37pm
streetsj
says:
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riskaverse
Not quite sure I get you. Are you saying that Parliament will crush the life out of Brexit by impeding the Article 50 notification? Or are you saying that it will impose impossible negotiating terms on Terry May? The former sounds dangerous - it's not as if people are going to forget the referendum result; if the latter, I don't see how it will work. Once Art 50 is triggered we're out regardless. Imposing red lines is going to make no difference.
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7 November 2016
at
6:11pm
patrick hutchinson
says:
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streetsj
Whatever subtleties you may employ, to oppose the 'Sovereignty of the People' to the 'Sovereignty of Parliament', as Farage and co. are now doing,in terms of the British Constitution, opens up a 'highway to Hell', i.e. provides precedent for tyrannical opportunnism and arbitrary rule!
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7 November 2016
at
8:48pm
riskaverse
says:
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streetsj
I think they'll be hoping to do both, though much depends on how the government proceeds from here. The Remainers have two bites at the cherry. If A50 is impossible without parliamentary approval, IMO they will attempt to make such approval difficult, even impossible, by simply adding amendment upon amendment, and insisting on debate and votes on all of them.
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7 November 2016
at
9:20am
Graucho
says:
Not quite sure where this fanciful myth that the UK will be in the driving seat during article 50 negotiations came from, they won't. HMG will propose and the EU will dispose. If the EU politicians decide that their vision of a United States of Europe to outdo the Roman empire shall not be threatened in any way, then they will make Brexit as hard and as painful as they can and all the parliamentary scrutiny in the world will not change a jot or tittle.
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7 November 2016
at
2:06pm
SinisaMihajlovic
says:
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Graucho
Worthwhile points there. The thing that puzzles me is why the Government didnt just go ahead and do it in the first place, as soon as May was put in as PM.
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7 November 2016
at
2:07pm
SinisaMihajlovic
says:
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Graucho
Hmm. That was meant for the post above - yours doesnt have any worthwhile points, just recycled newspaper cliches.
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7 November 2016
at
6:40pm
I agree the EU won't necessarily negotiate well as a bloc, except I think this makes a good deal for the UK less likely.
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7 November 2016
at
8:43pm
streetsj
says:
@
thebears
The EU needs to be careful how it negotiates Brexit. If it attempts to make trade difficult that will have serious ramifications for real world people whose jobs are (partly) dependent on exporting to the UK. High and Mighty Eurocrats ( yes, you, Junckers) who continue to ignore the citizens, will stir up more unpleasant nationalism.
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8 November 2016
at
4:02pm
Graucho
says:
Well here's an even more devisive potential spanner in the works.
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8 November 2016
at
4:36pm
Joshua Eyre
says:
"Writing about the role of newspaper coverage in influencing the political mood, Chris Leslie adapts the notion of ‘metarepresentations’ – a psychological term referring to the capacity to conceive of other people as thinking beings, and consequently reflect on what they are thinking – to describe the press construction of an impression of consensus."
Read moreI guess you could say that this is what you get when you have an archaic power such as the prerogative, a Government trying to abuse it, and a Referendum Act that was pretty vague about what the effect of its referendum was.
Nothing to do with the nature of our Constitution - which seems to be operating pretty well. Parliament is sovereign, as it has always been; the judges have just reaffirmed this. No sensible lawyer thought that the Government would win this, and no lawyer I know (me included) understands how the SC can overrule the legal reasoning in the ex.p Miller judgment. It's solid.
I (a lawyer and who is occasionally sensible) and a lot of my peers thought the Government was probably going to win. However, the Government conceded so much during the trial itself that there was very little to their case once the tattered remains were dragged over the finish line.
Justiciability (wot won it for Northern Ireland), Irrevocability (although not dropping this may have meant a reference to the CJEU) and loss of rights (the killer blow for the Court) were all conceded when it's not clear that they needed to be.
It's important to realize that the States are neither fully sovereign nor mere subordinate parts of the Union: they are sovereign except insofar as they have relinquished certain rights (to coin money, for example) explicitly or implicitly named in the Constitution. The Union, by the same token, is not merely a confederation of States, but extends certain rights directly to the citizens of every State.
If Parliament votes against Brexit that might indeed be a "crisis of democracy". But they haven't. All the judges have done is leave the issue to our elected Parliament, rather than the whims of an unelected PM using a prerogative power that is the vestige of our monarchical past.
This means that as well as "the will of the people", we have things like laws and rights which are sticky and hard to dislodge. There's been much less talk about the liberal (or rule of law half) of that label than there should have been.
For the record, many of us would join in the condemnation of the Mail et al, while still taking issue with the practicalities of the judgment (which were not dealt with by the court). Much humbug has been generated over this aspect. Strong opponents of Brexit have been lining up with silky reassurances that of course, the referendum result must be honoured, but all that's being asked for is the chance to scrutinise the deal being sought by the UK in the negotiations. Even Mr Butler says with near-convincing innocence: "...some people are fantasising that this ruling will permit politicians to ignore the referendum entirely." Hmmm.
Let's be realistic, and more important, honest here. It's quite clear that the insistence on having an "overview' (as one Labour MP cheerfully described it) will immediately become a serpentine list of demands and 'red lines', beyond which no approval will be given. We will have amendment after amendment, particularly in the Lords, where they can spend almost limitless time on these things when it suits them. Over in the Commons, we have a long list of fixers and canny operators like Messrs Salmond, Watson, McDonnell, (and many, many more) who are already rubbing their hands at the prospect of crushing the life out of Brexit through administrative gotchas and procedural technicalities. All of these twists and turns will no doubt be executed with shrugs of innocence ("we are merely doing our job to ensure that the British people get the best possible Brexit....")
It's disingenuous to pretend otherwise. If you disagree with me, all I can say is 'wait and see.' As it happens, I don't have a problem with the government's approach being discussed more widely within parliament, though how this can be done in an open chamber without attracting an immediate response from some European leader that "we will veto this", I can't see. Let there be behind-the-scenes consultations, but it is simply inconceivable that every stage of negotiations will have to undergo parliamentary debate and approval.
As the New Statesman, no less, opined a few weeks ago, a major problem with the parliamentary approval idea is that our EU partners will themselves be unwilling to accept these terms. Will they be prepared to spend two or more years arriving at an agreement with the UK negotiators, while knowing perfectly well that when it's taken back to the UK parliament, it will be rejected by MPs still saying "we must respect the verdict of the people, but, er, not just yet..."
Second, if, as many insist, ongoing progress (if any) has to be reported to the House, with any final deal ratifiable only after another vote, there has to be a temptation to send them back 'tae think again'. The risk with this however is that the EU talks will eventually time out, leaving the UK to default to WTO status -- almost certainly a worse deal than the EU proposal. The ensuing chaos would, however, give the Remain side some "I told you so" satisfaction.
The things you point out, I expect to happen. But this, in the sense of people squabbling over what exactly the terms and form of leaving should be, were i think deliberately left open to maximise the number of people voting leave. I heard some eloquent leavers who clearly knew their stuff - but most were pumped up on simplistic propaganda. So for me, it seemed inevitable that there would be a lot of disatisfaction at the eventual outcome.
Behind the scenes, there will be a scramble for favour from various affected parties, and loud denunciations in the press if the dont get what they want.
The Art. 50 negotiations are all about exiting - if no agreement is reached we stop paying and stop enjoying any benefits after two years regardless. Anything over and above that (such as a transition period - highly desirable in my view - or extension to the negotiations, or an early exit) would need qualified majority approval by the EU-27. We might get that even with some hold-outs, but a fragmented EU position isn't necessarily helpful.
The "what next" deal is critical to the UK, and will likely need unanimity (single market access or equivalent would; a CETA-style arrangement might, given this was conceded for CETA). This could prove fatal to agreement between the UK and EU as only one is needed to veto it. Such a veto could be based on something wholly unrelated to brexit itself.
There's no sign either of the UK's two "foreign offices" are on top of this in terms of capacity, skills, and least of all leadership. Bearing in mind they and our third foreign office will also be trying to conclude trade deals with everyone else in the world simultaneously. The government's political and economic need for deals (and relative inexperience negotiating them direct) also put us in a weak negotiating position.
http://www.bbc.co.uk/news/uk-scotland-37909299
"If the Supreme Court was to allow the Scottish government's intervention and ruled against the UK government, it could mean there would have to be a vote on Article 50 in Holyrood as well as in Westminster."
Can anyone point me in the direction of this Chris Leslie piece?