When I was at university a book was published entitled “The Politics of the Judiciary” by JAG Griffith. It was immediately recognised as a classic work and indeed a new and revised 5th Edition was published in 2010. I though the book was brilliant because it played directly to my prejudices about the judiciary as being a part of the repressive apparatus of the state. Indeed the book does look at where the judiciary are drawn from and it is pretty clear they come from the upper echelons of the British class system.
A more balanced reading however reveals a complex story about the relationship between the judiciary and politics and particularly between the judiciary and the government of the day. At times judges appear to have acted as tribunes of the people, defending the little man against the might of the state, and at others intent on implementing the repressive spirit of legislation rather than simply the literal meaning of its letter.
What Mr Griffith’s book does is describe in a measured and authoritative way how the law and politics collide. It is an excellent rebuttal of the notion that judges somehow live in Olympian detachment from the affairs of mankind and bring to their deliberations minds free from all prejudice. This is a good thing. Judges, like all members of society are fallible and have all manner of irrational assumptions about the way the world works just like everyone else.
Because of this there are many ways in which the judiciary could be reformed to ensure a wider range of backgrounds and experiences are represented in its ranks, so that the frameworks of reference through which the job of interpreting and developing the law is widened. There are many organisations working at this and some progress has been made. That progress is painfully slow, for example, here we are, well into the 21st Century, and out of 106 High Court Judges in England and Wales, 22 are women. Mind it wasn’t until 1919 that women were allowed to enter the legal profession at all!
All of this is by way of introduction to the main issue. I hope to have indicated that I have moved from a position of seeing judges as lackeys of the bourgeoise state to a slightly more balanced view. One which recognises the legal system is not perfect, however also recognises that society needs an authoritative way of arbitrating the meaning of laws. The English legal system is the way we have all implicitly agreed that should be done. We might not always like the outcome and we may work to overturn the outcome in various ways through the democratic process. However, it is the basis of the rule of law that the judges interpret what the law says.
The judges have not said that Brexit does not mean Brexit. They have simply said that a law which was created by parliament cannot be revoked by plebiscite. Mrs May may be hopping mad that the court has not simply told her what she wants to hear but as Prime Minister she should have led the political condemnation of the attacks on the judiciary by the press. The Secretary of State for Justice and Lord Chancellor, Liz Truss, simply had her Department issue a statement which an A Level British Constitution student could have written. Of all people, serving politicians, should support the institutions of liberal democracy not collude in their undermining. And to be clear there is a huge difference between reforming and undermining.
In truth Mrs May should actually be thanking the judges for clarifying the issue now. We are already in one almighty mess created mainly by her party but what would it look like if Article 50 was exercised and then challenged in the courts? We are already destined to spend years trying to negotiate ourselves to a position which will probably be worse than we were in pre June. That aside, what would it be like, and what would it do to the credibility of our political system, if every step of the processes were bedevilled by questions of legality.
I am opposed to Brexit, indeed I hope we can still avoid exit from Europe. However, if the supreme court decides the court of appeal was wrong and Mrs May’s approach to the process is legal I will not be casting the judges as enemies of the people. Democracy is currently under threat, the rule of law is a key part of democracy. Those who suggest the judges are getting in the way of the people are undermining the rule of law. If they were to get their way the road is open the kind of demagoguery we are getting from the United States now with threats to use the legal system to put opponents in prison.
The legal system is imperfect, it does favour the status quo and it is implemented in the main by people from a very small part of society which enjoys many of the benefits of that status quo. But it is what we have at the moment to maintain the rule of law. We undermine its authority and legitimacy at our peril. It is those that collude in this which are the real enemies of the state.