Glancing at the headlines of the Brexit press on 25 September 2019, one could have been forgiven for expecting a veritable flood of anti-juridicalism in their inside pages. Thus the Express demanded ‘Unlawful? What’s lawful about denying 17.4m Brexit?’; the Mail focussed on Johnson’s reaction with ‘Boris blasts: Who runs Britain’?
The Telegraph used the Johnson quote ‘Let’s be in no doubt: there are a lot of people who want to frustrate Brexit’, with the ensuing article appearing to put the Supreme Court judges among their number; and the Sun featured a large picture of Lady Hale under and alongside the headlines ‘Sun readers slam prorogue ruling’ and ‘Ooh, you are lawful … but we don’t like you’.
However, the ire of most of these papers was directed less at the judges than at MPs and Remainers such as Gina Miller. Their attitude could be summed up by the Express headline ‘Shocked … but we must respect the rule of law’ and by the Mail’s full-page editorial headed ‘The real political vandals are the out of touch MPs blocking Brexit. So when WILL they give us an election?’. This categorically states that ‘this paper fully accepts – and respects – the rule of law’ and notes that: ‘Erudite and impeccably neutral, Baroness Hale, the president, took great care to emphasise yesterday’s ruling was not about Brexit. Undoubtedly, she’s right’. Elsewhere in the Mail, perhaps most surprising of all is an admiring portrait of Lady Hale by, of all people, Andrew Pierce. This has been roundly criticised for its strapline referring to her as an ‘ex-barmaid’, but, taken in context, this looks to be an extremely ill-judged attempt to reflect the article’s praise for her non-establishment origins.
On two inside pages, a comment piece critical of the judgement by Richard Ekins, Head of the Judicial Power Project at the right-wing lobby group Policy Exchange, is balanced by a supportive article by the paper’s political columnist, Peter Oborne. The only anti-juridical note is sounded, unsurprisingly, by Richard Littlejohn’s column, which fulminated:
What the political class still don’t get is that Leave wasn’t just about freeing us from the shackles of an anti-democratic, bureaucratic foreign superstate. We were rejecting the whole rotten Establishment edifice — up to and including the self-regarding, self-important judicial class. Inside the Bubble this is being presented as a victory for parliamentary sovereignty, for justice and for democracy. Outside, where most of us live, we can see it for exactly what it really is: a disgraceful, but well-executed Remain stitch-up. They’re trying to drum into our thick heads that they know best and our votes are worthless. It isn’t justice, and it’s definitely not democracy.
Such sentiments entirely dominated the same day’s Sun, the only paper to engage in an out-and-out attack on the judges. The front page article cited above began:
Sun readers reacted with fury yesterday after the Supreme Court ruled Boris Johnson’s Parliament shutdown was unlawful … Many blasted the ‘unelected’ judges and hailed Boris’s battle to deliver Brexit. Dave Martin, of Sheffield, wrote: ‘The elite have shafted us again. It seems OK for the Remain side to establish new laws and Bills at short notice to stop our democratic vote to leave the EU’.
Inside, a double-page spread by the paper’s political editor, Tom Newton Dunn, headed ‘EU’re fault: Boris Johnson’s allies slam “constitutional coup” after judges’ Supreme Court ruling derails his Brexit plan’, contains quotes only from Brexiters, and also features one of those ‘rogues galleries’ more usually a hallmark of the Mail. Here, seemingly objective capsule descriptions of the ‘11 judges who defied the PM’ consist only of hyper-selective facts about them absolutely calculated to infuriate what the Sun takes to be its typical readers. Thus, for example, Lady Hale ‘previously backed an ECHR ruling over votes for prisoners’, and ‘ex-Guardian editor Alan Rusbridger, now Principal of Lady Margaret Hall, Oxford, announced Lady Hale would be joining Gary Lineker as a “visiting fellow”’. (Lineker is a particular Sun hate-figure as a BBC employee, Remainer and critic of phone-hacking). Lady Arden is ‘an “ad hoc” British judge at the European Court of Human Rights’ and ‘was named one of the “50 most powerful women in Britain” by the left-wing Guardian newspaper in 1997’. She is also ‘a member of the Permanent Court of Arbitration in The Hague’. Lord Reed was ‘a judge at the European Court of Human Rights in the 1990s. In 1999 he was on the ECHR panel that ruled the killers of James Bulger did not get a fair trial. In 2004 he sparked fury after sentencing a paedophile who raped a baby to just five years’ jail’. You get the picture.
A double-page spread consists of two articles and an editorial. This last, headed ‘Political judges must face scrutiny after doing the bidding of braying Remainers’, calls Johnson the ‘victim’ of a ‘staggering legal coup’ and argues that ‘in one unprecedented act of constitutional vandalism, 11 judges became an unelected political entity, granting themselves immense power to overrule our Government and Queen’. It also adds that ‘if these judges are to be politically active, they must prepare for the scrutiny and even the elections that go with it’.
One of the articles is headed ‘Supreme folly: Sun readers slam the Supreme Court’s ruling as they send in floods of messages of support for Boris Johnson’, twenty of which are quoted. To take just a couple of typical example:
‘Unelected judges make a decision that is an anti-democratic OUTRAGE – I’m ashamed to be British’, and ‘Now that unelected judges can override government procedures this country as a democracy is well and truly finished’.
The other article is by Times columnist Quentin Letts. Headed ‘Judges blew their hallowed status with the Supreme Court ruling and will now be fair game for public scrutiny’, this argues that the verdict
could make life immeasurably hotter for judges and senior lawyers in Britain. From now on, their political leanings, their family and professional backgrounds, their social media records and all those juicy perks they enjoy at their Inns of Court are going to be fair game for public scrutiny … Your honours, welcome to the boxing ring. Don’t forget to insert your gum shields.
Presumably as an example of the kind of ‘scrutiny’ that judges should expect in future, Letts describes Lady Hale as a ‘beady-eyed old nanny goat’ and a ‘quintessential liberal blue-stocking’ who has ‘just been given a cushy position at an Oxford college run by Alan Rusbridger, former editor of the left-wing Guardian newspaper’.
Letts claims that ‘in the past, senior members of the judiciary were generally left alone by the media and politicians’, although attacks on judges for being too ‘liberal’ or obsessed with human rights have long been a mainstay of right-wing newspapers, not least the Mail, for whom Letts used to write vituperative columns. These attacks reached their apogee in the ‘Enemies of the People’ episode, hostile reaction to which may perhaps have tempered coverage of the Supreme Court decision in this case, with the notable exception of the Sun.
However, should other papers be tempted to rally to the Sun’s war cry, they should surely bear in mind what the lord chief justice, Lord Thomas, told the House of Lords constitution select committee in March 2017, namely that: ‘In the wake of the Article 50 case, the circuit judges were very concerned and wrote to the Lord Chancellor because litigants in person were coming and saying, “You’re an enemy of the people”’. He also stated that:
Criticism is very healthy. If you have got something wrong, fine, but there is a difference between criticism and abuse, which I do not think is understood. It is not understood either how absolutely essential it is that we are protected, because we have to act, as our oath requires us, without fear or favour, affection or ill will. It is clear in relation to the first part of the Article 50 case that the claimant had been subjected to quite a considerable number of threats, and it is the only time in the whole of my judicial career that I have had to ask the police to give us a measure of advice and protection in relation to the emotions that were being stirred up. It is very wrong that judges should feel it. I have done a number of cases involving al-Qaeda. I dealt with the airline bombers’ plot and some other very serious cases, and I have never had that problem before.
In today’s increasingly fraught public realm, Lord Thomas’s sombre warning takes on even greater and more urgent resonance.
Like the Sun’s editorial, Letts also argues that ‘there will also, surely, be demands for Supreme Court judges in future to be subjected to the sort of public confirmation hearings that have long soured American judicial appointments’. This, again, takes us back to the ‘Enemies of the People’ furore, in which, on 5 December 2016, the Mail decried ‘the secretive and opaque’ manner in which Supreme Court judges are selected, comparing it unfavourably with the public selection of their US equivalents, a process in which it is ‘considered absolutely crucial and fundamental to the national interest that the people they govern are made familiar with every possible detail about who they are, and what motivates them’.
The Telegraph’s coverage was quite remarkably opinion-heavy, even by the standards of the UK national press. Indeed, the 25 September edition of the paper trumpets above the masthead: ‘The best comments and analysis’ and carries pictures of Philip Johnston, Alison Pearson, Camilla Tominey, Liam Fox, Janet Daley, and Ambrose Evans-Pritchard. The paper states that it carries ‘reports’ on pages 2-7, ‘comments and analysis’ on page 18, and ‘editorial comment’ on page 19. But pages 2-7 also contain three comment pieces, by Harry de Quetteville (‘Intervention by courts in affairs of politics leaves us on a slippery slope’), Evans-Pritchard (‘This is a bittersweet moment for our free and democratic country’), and Liam Fox (‘To understand the anger of voters, get out of the Westminster bubble’). Overall the comments are quite well balanced, although taking into account the paper’s coverage as a whole, it’s hard to avoid the conclusion that its own view is summed up by its assistant editor, Philip Johnston, in his judgement that:
Constitutionally, the court’s decision is seminal. It marks the most brazen encroachment of the judiciary onto territory once considered untouchable Crown prerogative … The failure of a single Supreme Court judge to stand up for long-established constitutional principles is shocking.
In the following day’s edition, Johnston, in a column headed ‘From the rule of law to the rule of lawyers’, also takes up the point broached above about appointments to the Supreme Court, arguing that its ‘transformation into a fully fledged constitutional court’ means that ‘questions of whether judges should be subject to greater scrutiny as happens in America will inevitably be raised’. And this is a subject explored at some length in the same day’s paper in an article headed ‘Appoint Supreme Court justices as the US does and question them about politics, says Cox’, with the strapline: ‘Attorney General insists MPs will have to examine constitutional arrangements in light of judges’ ruling’.
This is based on a reply by the Attorney General, Geoffrey Cox, to the Conservative MP John Stevenson, who, during the previous day’s raucous debate, had asked him whether be believed that ‘the appointment of Supreme Court judges should receive the formal approval of Parliament’. The Attorney General responded:
I understand my hon. Friend’s question and say to him, quite frankly, that I think it is a matter which this House may need to reflect upon in the coming months and years, depending on the status of our constitutional arrangements … I do think that we are going to have to look again at our constitutional arrangements, and we should see if we can find some common ground. We need to have a proper consideration of these matters. As we leave the European Union, a great gap opens up, whereby we take away from legal integration all this European Union law, and we need to think about the implications. I therefore agree that there may very well need to be parliamentary scrutiny of judicial appointments in some manner. I have to say that I am not enthusiastic about that, but I understand why my hon. Friend asks.
However, although the article does note Cox’s lack of enthusiasm, it’s also notable that it goes quite some way beyond what he actually said in this or any other part of the debate, not only stating that ‘Supreme Court judges could be appointed by politicians’ but adding that:
Parliament’s involvement could see judges questioned on their political affiliations, including which way they voted in the EU referendum, before they are appointed. There was also speculation that the reforms would lead to a written constitution, the scrapping of the Human Rights Act, and reverting to the old system of law Lords to replace the Supreme Court.
There is, in fact, much to be said for making judicial appointments of all kinds far more open and democratically accountable, as they are in Germany, for example. However, Germany, unlike Britain, is fortunate enough to have a press that is, for the most part, democratically responsible. Anything which enabled British newspapers with long and dishonourable records of anti-juridicalism, hostility to human rights and an addiction to penal populism to influence appointments to the courts, and thus those courts’ decisions, would be absolutely fraught with danger.