“Enemies of the People” v Independence of the Judiciary

The High Court’s decision on the triggering method for leaving the EU has caused a media storm. In fact, at the English bar there has been a debate going on for months as to what has to happen legally because there are respectable arguments either way. Certain newspapers have condemned the three man decision of the High Court with headlines such as “Enemies of the People” with biographical details given of the judges concerned. Several politicians clamour that attacking the independence of the judiciary is wrong and asking the government to stand up for the judges. For the public, listening to interviews on Newsnight, with commentators talking over each other, or some other poorly presented newscasts, it can be difficult to follow the competing arguments. Quite often there is a great deal of “dumbing down” with shades of grey presented as black and white truths.

The judges concerned are unlikely to be pleased with the coverage but they are robust individuals who will not be overly worried by a few headlines. Just as the newspapers will be pleased at having got attention, one cannot help thinking that politicians clamouring for support of the judges are enjoying their media attention too.

The reality is that the judiciary are, on the most part, from a selective background and do not reflect the great diversity of British society. Professor Griffiths wrote about this in his 1970s book called “The Politics of the Judiciary.” Even judges are aware of the potential problem. In an address delivered to the University of Cambridge Law Society on 18th November, 1920 Lord Justice Scrutton accepted: “The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgements as you would wish.

It was this concern about ensuring the diversity of the judiciary that led to criticism that it was “male, pale, and stale.” The rise of women and ethnic minorities in the judiciary has, for example, come quite late in the day. Even in 2004, Lord Falconer said that “a more diverse judiciary is essential if the public’s confidence in its judges is to be maintained and strengthened.”

In reading the judgement of the High Court, it is very difficult to see where the judges’ private views, personalities or background will have had any effect on the result in this case. Certain of the headlines are really pandering to bigotry and prejudice therefore. But it is right to say that in very exceptional cases that the background of the judge(s) hearing a case can play a part in a finely balanced decision. I recall being a law student and taught by a very good lecturer in this area called Dr Hungerford. She had a big pamphlet of materials entitled “Legal Method & Materials” (that I still have) and one of the topics that we discussed and learnt about was analysing historic cases where the selective background of the judiciary very likely did result in a particular judgement. It is fair to say that the majority of such cases we looked at were in the 19th and early 20th centuries. However, it is naive to believe that the judiciary are never affected by their own upbringing, education and beliefs. It’s just that I can’t see how it played out in this case.

So in the current media debate, it would be helpful to have a little more depth and insight in the arguments deployed and the coverage we are receiving. At the end of the day, the poor public is subject to manipulation from a variety of sources that have their own agenda.