The Guardian view on Brexit ruling: the response to the courts threatens to undermine the bedrock of a democratic society
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Version 0 of 1. The rule of law is the bedrock of a democratic society. It can check corruption and abuses of power. It permits individuals to order their lives. It allows private corporations, public bodies and the executive to regulate effectively their own activities. If the rule of law is to be upheld, it is vital that there should be an independent judiciary. This fact appears lost on Brexiter rabble-rousers. This voluble, influential political sect has unleashed gales of fury on the high court judges who ruled that only parliament has the authority to trigger article 50 of the Treaty on European Union, the legal route for Britain to leave the EU. Leading the charge are rightwing newspapers, which claim themselves to be champions of free speech and traditional British liberties. Yet since the Brexit vote they have sought to delegitimise their opponents’ views and silence them through intimidation. This morning these newspapers laced racial innuendo with accusations of treachery, casting themselves as representatives of the people against unelected “out of touch” judges and their “loaded foreign elite” remainer acolytes. This is rhetoric that goes beyond character assassination and rightwing posturing into something darker and more dangerous. Remember, we are only months away from the gunning down of a pro-remain MP in broad daylight. During the course of this case, the bench – headed by the lord chief justice – was compelled to remind the gallery that threats against the claimants would be taken as contempt of court. The hysterical, and frankly ludicrous, response to the ruling was to claim that the judges’ decision had sparked a crisis akin to that faced by Winston Churchill during world war two when he called on Britons to “fight them on the beaches”. This intolerance threatens to undermine political freedom and judicial independence. No court is infallible. One can dissent from judgments without trying, via newsprint and social media, to shatter a nation’s confidence in judges as impartial guardians of the rule of law. Judges don’t do opinions unless they are legal ones. Hence the need for politicians to speak up. So we ask: where is the prime minister in all this? Has she lost sight of the obvious – that the rule of law requires that the courts have jurisdiction to scrutinise the actions of government to ensure that they are lawful? Where, pray, is the lord chancellor, Liz Truss, who – as former office-bearer Charles Falconer notes – has a constitutional duty to defend the judges? The government will have its appeal heard in the supreme court next month. Unless ministers make clear their support for the judiciary, it looks as if the government is colluding to try to cow the highest courts in the land. The high court used Jacobean case law – “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm” – to spike the government case that ministers have a right to invoke article 50 under the royal prerogative. The citizen must be able to challenge the executive before an independent judiciary. Because it is the executive that exercises the power of the state and because it is the executive which is a frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected. By standing by, ministers are encouraging mobocracy to overwhelm the rule of law. |