***Looking for a post about writing and getting published? Sorry! This post is on a different subject altogether. Normal service will be resumed soon. ***
Dear Lord Chancellor,
I’m Harry Bingham, a crime novelist and the eldest son of the late Lord Bingham. This blog is usually taken up with matters of interest only to writers, but on this occasion I’m grabbing the pulpit to talk about something bigger: the future of our democracy and constitution.
As you know, my father was, at different times, Master of the Rolls, Lord Chief Justice, and Senior Law Lord. An obituary in the Guardian kindly said he was ‘widely recognised as the greatest English judge since the second world war’. I’ve no doubt that you know and respect his record of achievement. I’ve no doubt that you know and respect his thoughts on the Rule of Law – indeed, you probably have his book on the subject on your shelves already.
And here’s the thing. Recently, a group of three very senior High Court judges were called upon to do their job. They were asked if this government is constitutionally obliged to allow Parliament a vote on invoking Article 50.
That’s a somewhat arcane technical matter, to do with the extent of Crown prerogative in matters where foreign treaties mesh with domestic law. It’s uncontroversial that Parliament needs to rule on the latter, while the government has more scope in relation to the former. How and where those boundaries lie is a matter for our judiciary – as they have been since the Glorious Revolution of 1688 (and, indeed, a good bit earlier, depending a bit on how you measure these things.)
So far, so uncontroversial.
And look, it may well be that you don’t agree with the ruling of those judges. It may be that you want the government’s appeal to succeed. It may be that you are concerned about the political fate of Article 50 and are worried that the judges’ ruling may complicate matters there.
So fine. Launch your appeal. Lay out your arguments. See who wins.
But that’s not the issue. The issue is this. These three judges were DOING THEIR JOB. They were honouring and upholding the rule of law. They may have been right. They may have been wrong. But they did their job to the maximum extent of their (considerable) abilities and with the rigour and impartiality that their job demands and requires.
And what happens?
The Mail calls these judges ‘enemies of the people’. It lays out, poisonously, personal details about these judges in a way that comes very close to direct intimidation. It also lies in saying that the judges ‘have “declared war on democracy” by defying 17.4m Brexit voters.’ Which is not the case. They haven’t ruled on Brexit. They weren’t asked to. That’s not their job. They were asked a question about the boundary of crown prerogative and they answered that.
And, well, the Mail is the Mail, but the Telegraph sets up the same (weirdly blue-tinted) judges in these terms: ‘The judges versus the people’, as though our judiciary were somehow reversing the recent referendum. (Which they’re not. And which they couldn’t. And which they certainly wouldn’t.) The URL for that Telegraph article includes the untruthful and somewhat threatening phrase, ‘The plot to stop Brexit.’ One of the most respected newspapers in the land is in effect, representing our judiciary as plotting against democracy itself.
Now the press is the press. We can’t always look to them for truth, or balance, or constitutional propriety. But we should, surely, be able to look to you.
You are the Lord Chancellor. Your judges – our judges – are being attacked in gross, untruthful, and personal terms for doing their job. For honouring our constitution. For assessing facts and arguments without fear or favour.
And what do you have to say about this? Nothing.
What does the Prime Minister have to say? Nothing.
Where is the defence of the judiciary? Of its independence and, indeed, its basic safety in going about its job?
But why them? This is your job and it is your Prime Minister’s job. And that duty is a sacred one: fail to support an independent judiciary and you are halfway to the kind of state that Donald Trump would build for himself. You are halfway to Putinism.
I don’t care what you think about Article 50, or Brexit, or whether those three judges were technically right or technically wrong. You need to defend them, to defend them loudly, and to defend them now. And shame on you for this delay.
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