No Suzanne, just no

Ukip leadership hopeful Suzanne Evans has suggested judges should face the prospect of being sacked by MPs in the wake of the Article 50 case in the High Court.

She warned about judges increasingly intervening in political decisions and suggested the judiciary should face being grilled by a Commons select committee with the power to recommend sacking them.

Really, just no. That she doesn’t even guess why this is a bad idea is what makes it so terrible.

The judiciary under political control? Jeebus.

50 thoughts on “No Suzanne, just no”

  1. It is a terrible idea Tim. Much as I would like to see the 3 cunts on treason /sedition charges.

    However they already under political control. Just that it is informal control rather than the direct state type.

    They are members of the enemy class–well-off, middle/upper class, cultural Marxist, London Bubble scum. And leftist law dogs to boot.

    That is why an on-going Purge is essential for the next few decades at least. To ensure that CM scum don’t get into the system in the first place let alone have a chance to slime their way to the top.

  2. I thought they always were under political control, just the more subtle “if you want to chair a lucrative public enquiry, you won’t be making overt political judgements now, will you?” sort.

  3. So Much For Subtlety

    There was an unspoken agreement for the judges to leave the politics to the politicians. Ever since Coke tried to argue that the Common Law stood above Parliament and the Crown, the lawyers have accepted that it is their job to interpret the law narrowly and in line with the intent of Parliament.

    The very nasty politicking over Brexit – including open mockery of pro-Brexit politicians – means that the judges refused to abide by that agreement is out in the open. If they want a political role, if they want to be politicised judges, we will get a politicised process.

    The question is not whether this is a bad idea. It is. But it is one forced by the judges refusing to stick to their role. Given they insist on a political role, the question is how should the rest of us respond. This is probably the least bad option. Better than leaving them to do what they please.

  4. Well she has a point. Nobody elects the Judiciary, and they are accountable to no-one. Their interpretation of words can be novel. And they can be relied on to extend their jurisdiction whenever they get a chance.
    That said, what we do about it is problematic. We need to make sure that the Judiciary is independent of the government of the day and not dictated to on individual issues. How to retain that independence whilst making Judges accountable for their decisions is a question for a bigger brain than mine.

  5. Judges whose decisions are examined and second guessed by parliament and judges fired?
    There would be even less acceptance of any report or inquiry done by a judge in future then. If they know their job is on the line they may stick to government of the day policy – which can be a bad thing.

  6. I haven’t examined the judgment, so I have no firm view as to whether it is judicial activism-y, or it correctly applies the law.

    Can someone, SMFS perhaps, explain why it is the former?

  7. Bloke in North Dorset

    ” How to retain that independence whilst making Judges accountable for their decisions is a question for a bigger brain than mine.”

    The best defence is the appeals process, somewhere along the line they should arrive at the best answer, which is not necessarily the popular one.

    The more I think about and read around the more relaxed I am about the decision. Even if it’s not overturned it can’t be a bad thing if the judiciary is supporting Parliament against the executive and curtailing the executives’ power.

  8. ” Even if it’s not overturned it can’t be a bad thing if the judiciary is supporting Parliament against the executive and curtailing the executives’ power.”

    In a decent world yes.

    In a world where most of our “representatives” are members of the enemy class–well-off, middle/upper class, cultural Marxist, London Bubble scum– that isn’t as good an idea as it sounds.

  9. “Can someone, SMFS perhaps, explain why it is the former?”

    I despair of the vilification and I do not agree with the suggestion that the judges were entering into politics. They were careful to treat it as a decision on a point of law, which it was. (Aside: I thought one of them having been an Olympic fencer was quite engaging, even traditional.)

    I was surprised at first at the result, having read the transcript, admittedly fairly quickly, but Pannick is famously subtle and quick on his feet. I’m afraid the Govt side slipped up (and in one instance as noted in the reference below, not quick enough in the flesh). It wouldn’t surprise me if it’s overturned.

    Here’s one argument why:
    http://judicialpowerproject.org.uk/john-finnis-terminating-treaty-based-uk-rights-a-supplementary-note/

  10. Just because the Judges said that they were only ruling on a point of law, does not mean they were. The first question they should have asked, I think, is is this a proper matter for the Courts rather than Parliament to decide? The answer is surely obvious.

  11. No, I’d disagree. There really is a point of law. It probably wouldn’t even have got to court except that it involved the EU. Part of the difficulty is that the EU looks like a government, is structured like a government, acts like a government, and certainly aspires to be a government, but it’s really no more than a treaty organisation, like NATO or the UN. There’s no question May could wake up one morning and decide to withdraw from either of those without Parliamentary action. Obviously as with any Government (“Crown”) action, it’s always responsible first to Parliament and then to the electorate for its actions and the consequences, but it could be done.

    Perhaps had the Constitution succeeded, the EU might have created a different relationship to the UK, but as it is, it relies on a collection of treaties (on the “international plane” as they put it). Because of that appearance, however, it seems to have become natural to assume it’s somehow a special part of the UK’s constitution proper.

  12. As a counter-example of something that really is a part of the constitution, compare Blair’s waking up one morning and deciding (to hide the mess of a reshuffle) to abolish the Lord Chancellor. Not so fast: that required primary legislation (you’d have thought he’d have known that, since he read Jurisprudence).

  13. “you’d have thought he’d have known that, since he read Jurisprudence”: oh come now. It is a truth universally acknowledged that Blair is dim and ignorant.

    And I don’t mean “dim” in the silly sense of the chumps who decry all politicians as dim. Gordon Brown isn’t dim; William Hague isn’t dim; Phoney Tony is dim.

  14. Everybody must be answerable to the law, EVEN THE GOVERNMENT.
    As a Leave voter I welcomed the judges verdict – they are re-enforcing what the referendum was all about. They are say, yes, the UK Parliament *IS* supreme, it’s unconstitutional for it to be subserviant to foreign princes, so Parliament must get on with the process of an orderly withdrawl.

  15. This reminds me of the situation in the US.

    Want to abolish the 2nd Amendment? Get the right judges on the Supreme Court.

    This over reach into politics by the judiciary is just another example of law makers beyond the reach of the vote – a l EU…

  16. The Inimitable Steve

    Eh. They need to be under *some* sort of control. Dunno about the specifics of Ms Evans’ proposal, but her goal has merit.

    Judges are not supposed to be an unaccountable priestly caste. They’re supposed to work for us.

  17. Anyway, back for a moment to the original post. I’ve spent enough time in the US where judges are elected to decide it’s a terrible idea. Jacques Ellul in “The Technological Society” (“La Technique”) discusses why technical functions like legal interpretation mix badly with politics, but also why the Americans felt obliged to go that route given their situation after the revolution. Notably, federal judges in the US (eg, Supreme Court) are appointed, although confirmation by the Senate is inevitably political.

  18. That she doesn’t even guess why this is a bad idea is what makes it so terrible.

    She’s just one of so many rank amateurs in the rabble that is UKIP.

  19. Robert Bork said of the majority judgment in Roe vs Wade that it contains no legal reasoning. I found this claim surprising so in an idle moment, I read it. Turns out, he is right. Interesting ‘judgment’, for sure, but not a juridical one. That’s an extreme example of judicial activism.

    Another, slightly less egregious in that it does contain legal reasoning but ends up making stuff up, is Lord Justice Laws’ ruling in the metric martyr case (he called the stuff he made up, ‘constitutional statutes’, which, having made them up, he then elevated to a status above that of other Acts, because to do otherwise would have been to give way to Thoburn’s otherwise unassailable case and caused a massive headache).

    Judicial activism is real. Nor is it problematic to suggest it stems from ruling caste norms, even norms which require no orders from on higher – precisely because they are readily understood and obeyed. And sometimes, mundanely, judges become arms of the state because they are enjoined to save the court service money.

    But I do think that if an allegation of judicial activism is to be made, you need to be in a position to say why you think the judge got the law wrong in the first place.

    I’ve been a Brexiter since the Danish referendum in ’92. I don’t welcome this development. I’ve no doubt at all that if the ruling class can stitch us up, it will. But until I find the time to read the judgment, and remind myself of how the law in this area has developed, I’ll suspend my own judgment. Unless one of you lot can explain why they got it wrong in Miller’s case.

  20. “Unless one of you lot can explain why they got it wrong in Miller’s case.”

    Have a look at the link I posted above (and the pdf file[s] it links to in turn).

  21. A little detail about the case was interesting. During it, some notes briefing MPs on the Referendum Act as they considered it were introduced to suggest it was “advisory”. I noticed that it specifically said that it was “advisory for the Government” (ie, the Government would take it into account when deciding subsequent policy). There was no suggestion in the “advisory” briefing notes that there would be (or not be) Parliamentary involvement before any action was taken. It was advisory to the Government, not to the political system (eg, including Parliament). It meant only that the Government had the option to disregard the result, or indeed to choose the implementation method. Subsequently, the Government bound itself in the famous leaflet to implement the voter’s decision. Obviously, a Government “implementing” a decision would use whatever means was appropriate. In this case, notifying Article 50. The legal question being decided was (as I understand it) ultimately whether that required preliminary Parliamentary approval (in some form) or whether it could be done at the Government’s convenience using the Crown prerogative.

  22. So if parliament do debate the issue before deciding, will they want to announce to the other side exactly what we require and have up our sleeves?

  23. @TIS, particultaly an unaccountable priestly class that, when it gets a bit of vilification, demands ‘protection’ from the Chancellor like a bratty kid demanding Mummy protect it from the bullies it had wound up earlier….

  24. The usual interpretation of Parliament’s sovereignty over the executive is that Parliament represent the people, and really it is the people who possess that sovereignty. Parliament hold it in temporary trust, because it’s not practical to have a referendum on every issue. The objections to the decision are about Parliament usurping the people’s power, not the executive usurping Parliament.

    The problem is that that’s not the way the law is written. Because for most decisions Parliament represents the people, the law is worded so as to require Parliament’s approval. That a referendum supersedes Parliament might accord better with constitutional principles, but the letter of the law doesn’t say that, so they instead invented this dodge of using the Royal Prerogative to bypass Parliament.

    Not totally unreasonable, given the situation. The problem is the precedent it sets is not specifically linked to there having been a referendum. If the executive can use the Royal Prerogative, then they can use it anyway. There’s no rule concerning its use saying “only if there’s been a referendum”. It’s a cheat to achieve the right result, but it’s still a cheat, and it’s not a wall we really want to weaken.

    The right answer (in the long run) is therefore to rewrite the law so that a referendum result can stand in place of and supersede Parliament’s representation of the people. The courts can only interpret the law as written. It’s for Parliament to write it in such a way that the courts can’t misinterpret it.

    In the meantime, though, they’ve got a problem. I suspect they’ll wind up having to go through Parliament, but they can probably do it in such a way as to make blocking it politically unacceptable – tantamount to admitting that MPs don’t represent the electorate, undercutting Parliament’s legitimacy. Public anger would help make that point.

  25. So Much For Subtlety

    Edward Lud – “I haven’t examined the judgment, so I have no firm view as to whether it is judicial activism-y, or it correctly applies the law.”

    That misses the point. The issue is not whether this one judgement is right or not. Personally I believe in the primacy of Parliament and think it is right to consult it. The issue is whether the judges can be trusted not to abuse their office to “legislate” things they think we need even though we will not vote for them.

    And no they cannot.

  26. CHF, thanks, had a brief look earlier but it rapidly became clear to me that it requires careful reading and probably re-reading … so I’ll have to find the time.

    SMFS, believe it or not, judges get the law right all the time. Sometimes they get it wrong. And sometimes they get it wrong for reasons with which you and I both would disapprove.

    But it seems to me you are contradicting yourself. If the primacy of parliament is ‘right’ and you think parliament should be consulted, then on what basis do you conclude that this case shows judges cannot be trusted?

    And, what, all of them? Stephen Sedley and Jonathan Sumption, for example, are politically oceans apart …

    TiS, I am not sure it is right to say that judges work for us. In theory, they work to administer and uphold the law, much of which is nowadays made by parliament. In theory parliament represents us, so judges are theoretically administering and upholding parliament’s theoretical enactment of our wishes. The trouble with your observation, as I see it, is that it is a gloss on this theoretical circle of life, rather than a link in it: assuming the judges correctly administer and uphold what parliament has enacted, then they are at one with our wishes. But what if what parliament has legislated for, when correctly administered and upheld, turns out to be at odds with what we voted for? That’s a parliamentary drafting problem, solved by voting for new parliamentarians, not a juridical problem.

    And if I stopped typing so much, I might find time to read CHF’s link …

  27. Um parliament can do what ever it wants. If it opposes Brexit it does not need a court to force the gvt to ask it. It can force the government.

  28. Spot on, Hallowed Be – I’ve been pointing this out to guffawing Remoaners (Ha ha, you wanted Parliament to be sovereign – well now it is!) since the High Court decision. Parliament can remove the Executive any time it likes, there’d probably need to be a General Election, though.

    But I’m less sanguine that Parliament won’t dare oppose the will of the people. Listen to what the shiny-faced buffoon Clegg is saying. And don’t forget he’s got hundreds of nodding donkeys in the Lords on £300 a day (a quid pro quo for his ‘selfless’ efforts in coalition) on his team.

  29. @NiV

    Despite the media interpretation and commentary, the decision isn’t really about Parl. supremacy/sovereignty.

    “the letter of the law doesn’t say that, so they instead invented this dodge of using the Royal Prerogative to bypass Parliament”

    It really wasn’t a dodge. It’s what would normally be done with regard to an international treaty. The link I posted uses the examples of double taxation treaties, because it’s clear cut and has some seriously valuable rights involved that are indeed removed by prerogative action (or action by the other party or parties). Parliament is involved in the ratification initially, but not when the treaty is terminated by either side for whatever reason, where it’s the Crown’s task without further reference to Parliament.

    The binding/advisory nature of the referendum only becomes relevant if it’s assumed that the prerogative cannot be used in this case for some special reason (or perhaps in general); in which case the Govt argues that it’s being used to carry out the decision of the referendum, but the claimants argued that the non-binding nature meant it wasn’t equivalent to Parliamentary authorisation.

  30. Sometimes we should remember to be grateful.

    The grey area is of the government’s making, not the Judges, and kicking it upstairs to the Supreme Court seems entirely sensible to me (this is effectively what the High Court did).

    In other words, a Constitution working pretty well.

    Meanwhile, here in the US, many would love to have the UK’s problems.

    A significant factor for many voters is the empty seat in the Supreme Court, and the likelihood of one or two more in the next 4 years (certainly in the next 8). The Catholic party line, for example, is Trump, and for this reason pretty much.

    This would suggest that the US SC system is broken beyond repair. Not so in the UK.

  31. Jack C – we are willing to let you all come home. You will have to learn to speak properly and spell correctly, have to learn a metric system and what pants really are. But willing to let you all come home back to the empire.

    And lets forget about that 200+ year old experiment in self rule over there. The locals can kick the immigrants out….

  32. ” It’s what would normally be done with regard to an international treaty. The link I posted uses the examples of double taxation treaties, because it’s clear cut and has some seriously valuable rights involved that are indeed removed by prerogative action (or action by the other party or parties).”

    Interesting. If I understand the distinction he’s making rightly, the executive can make or break treaties freely, they only come into effect in UK statute with Parliament’s agreement, but that agreement/statute is contingent on the treaty staying in effect. In other words, the legislation enacting EU membership remains in force, but because it is itself worded to make its requirements contingent on the existence of the treaty, ending the treaty automatically renders it inoperative.

    And he says the reason the courts came to the decision they did is that the government QC failed to make that argument. If so, that ought to be easily sorted out on appeal.

    OK. That sounds reasonable. I’ll watch to see what happens next with interest.

    Thanks for the correction.

  33. NiV – this is government we are discussing. If they can fumble the ball they will do so. Any UK government does.

  34. “NiV – this is government we are discussing. If they can fumble the ball they will do so. Any UK government does.”

    That’s generic to all humanity.

    The usual problem with government failure is that they’re immunised against failures. Private enterprises that make mistakes go bankrupt. Civil servants and politicians just get the taxpayer to bail them out, and carry on.

    It’s a mistake to think governments are especially prone to screw ups (a point which explains why government attempts to harness markets so often fail). All humans are fallible, and the majority of business start-ups fail too. What matters is that the failures should get culled, and that’s where government goes wrong.

  35. I had thought that if parliament had agreed the treaty previously which included terms for exiting that treaty then they have already voted on it so the executive could just operate under the treaty including termination without everything going back through parliament.

  36. So if government mess up a major chunk of the voters are annoyed with them. If they don’t mess up on this a major chunk of the voters are annoyed with them.
    And of course whatever is decided by people negotiating will never be enough for some people, MPs included, and plenty more get annoyed at government.

    I’m just wondering if our next government is going to be the DUP or Sinn Fein.

  37. @dearime

    William Hague struck me as highly intelligent

    Cameron was supposed to be highly intelligent but didn’t show it.

    Phoney Tony I never had an opinion on.

    Gordon Brown was intelligent enough to make things complicated but not clever enough to make them simple.

    Teresa May, it’s too early to say but the signs aren’t promising so far.

  38. When it becomes obvious that the judicial system has become rotten with political bias and that judgements no longer rely on the law but predictably favour just one party, what would you recommend be done?

  39. I’d just take a step back and look at the situation. Leave out the complexity for a second.

    We had a binary vote, got a result. Done.

    But…

    Now we are faffing about, losing millions a day (EU subs) due to pointless delays, and why?

    Because of three ridiculously-costumed middle/upper-class welfare scroungers* and an attention-seeker that’s a bit bored and needs some excitement in her life.

    That’s really not a good basis to run anything.

    *my term for much of the public sector is middle-class welfare.

  40. Teresa May, it’s too early to say but the signs aren’t promising so far.

    She read Geography at Oxford – that’s not usually a subject chosen by the brightest and best.

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