A love Supreme

Dear readers,

I have been away far, far too long (not that anyone will have noticed, I’m sure – my address to “readers” is a self-delusion I allow myself). Rest assured that in the meantime I have been forming strong likes and dislikes of things which have cropped up in my everyday life: Poetic Licence gin (like), Strictly Come Dancing (dislike), home-made raspberry vodka (like), Tom Ford (dislike). So I have been keeping busy. But the time has come to vent again, in hopefully as accessible a way as possible.

Today I want to turn to a slightly more serious topic than usual (though I am fully aware that whether the “No brown in town” rule is still valid is a very weighty matter). Anyone who pays even scant attention to the news will have at least become aware of the proceedings this week in the Supreme Court. The excellent Rupert Myers, a lawyer as well as a journalist, has been tweeting wittily from the west side of Parliament Square (@RupertMyers), and the story has led the news bulletins. This is a good thing, because the Government’s case before the Justices and the arguments against it are important and deserve public attention.

However, there has, I think, been rather more heat than light. This was summed up for me by the wackily-dressed protestors (on both sides) outside the Supreme Court, including the loathesome Cornelius “Neil” Horan, who was nearly killed at the 2003 British Grand Prix. Mr Horan, incidentally, believes that Nigel Farage was sent by Jesus to withdraw the UK from the European Union and thereby fulfill a biblical prophecy. My reading of the Bible is far from expert, I freely admit, but I don’t recall any references to the EU in my boyhood Scripture classes. Of course, it may simply be that Mr Horan is a loon. But I digress.

I’d be willing to bet that the man (or woman) in the street, that much-quoted authority, will be aware of the proceedings in the Supreme Court but his or her interest will end about there. Several innocent bystanders have been assailed by television journalists only to reveal that they think the case is about whether the UK can, should or will leave the European Union. It isn’t.

As more observant readers will be perfectly aware, the issue at stake is whether the UK Government has the power to invoke Article 50 of the Treaty of Lisbon to begin the two-year process of the United Kingdom giving up its membership of the EU by using existing powers under the Royal Prerogative, or whether it requires an Act of Parliament to do so. Now, that’s not a simple concept or one which can be made immediately sexy. But it is important. In constitutional terms, it’s about as important as it gets, which is why the Attorney-General himself and the Treasury Devil, the Government’s senior lawyer, have been deployed to make HMG’s case, and why the opponents of the Royal Prerogative argument (who won in the High Court) have engaged the services of one of the Bar’s brightest and most brilliant silks, Lord Pannick QC, to put the arguments against.

(I haven’t been following every minute of the case, so I didn’t see the Attorney-General’s opening statement, but it did make me wonder if we should all – but the Government especially – have cause to regret the recent trend for appointing rather undistinguished lawyers as Attorneys-General. Of course here I make an exception for Dominic Grieve QC, the previous AG, who was brilliant. I have no animus against Jeremy Wright, and am sure he’s a serviceable workaday barrister, but there was no suggestion in his pre-House of Commons career that he was destined for the top, and I think I’m right in saying he only took silk when he became AG. The hard work in court will no doubt be done by James Eadie QC, the Treasury Devil, but you wonder if the appointment of a more successful and experienced lawyer to the post of chief law officer, someone like Lord Goldsmith or the late Peter Rawlinson, might have served the Government better. But, again, I digress. It’s my thing.)

So suddenly the Supreme Court is in the public eye, and so, to their varying levels of discomfort, are the Justices. Ten men and one woman (the court, like its US counterpart, currently has a vacancy), nine of them Oxbridge-educated and all of them white, are going to decide a momentous point of constitutional law and politics. The legal question before the Court may be a narrow and technical one, but its implications are huge. Lady Hale, the Deputy President of the Supreme Court, remarked to a Malaysian audience, rather unwisely, in my view, that she wasn’t sure that even primary legislation was sufficient authority for the UK to withdraw from the EU. I paraphrase her, probably unfairly, but that is how her remarks were reported. I think she would have done well to refrain from comment, and she was, in the most discreet, diplomatic and judicial way, reprimanded by her boss, Lord Neuberger.

The Daily Mail, of course, piled in with predictable views and predictable (lack of) subtlety, dubbing Their Lordships “enemies of Britain” and painting them as out-of-touch members of a liberal metropolitan elite who would stop at nothing to thwart the clearly-expressed will of (51.8 % of) the British people. (Actually, it’s less than that, since it’s 51.8 % of those who voted on a turnout of 72.2%.) On a simplistic level – and, let’s face it, the Daily Mail doesn’t have any other levels: it is a bungalow on the housing development of British journalism – it is very easy to make the Supreme Court Justices look like caricatures. Ten out of eleven are male, all are white, nine, as I said above, went to Oxbridge, and the other two studied at Durham and Queen’s University Belfast, hardly ex-polytechnics offering courses in dramaturgy and golf course management. The Justices are not “representative” of the people, though they are probably quite representative of the senior judiciary (although Lord Sumption was promoted to the Supreme Court directly from the Bar and has never been a full-time judge until now; he has written an excellent history of the Hundred Years’ War, though).

A recent article in the Spectator by Professor Richard Ekins of St John’s College, Oxford, analysed the Justices and gave brief pen-portraits of them, concentrating especially on their attitudes towards judicial activism and the interplay between Parliament and the courts. This is the first time that all the Justices have heard a single case, a decision taken so that there can be no accusations of a biased panel. It’s inevitable, then, that their past decisions and, to some extent, backgrounds, will come under intense public scrutiny. We’re entitled to look at what American policemen would call their rap sheets (NYPD Blue was a documentary, right?).

This is all fair enough. Greater public interest in and engagement with the judicial system is A Good Thing, on balance, and some of the Justices and their defenders have been a little too delicate when the spotlight of attention has swung over them. But this is not the United States. Our Supreme Court is not, thank goodness, deeply politicized in the way that SCOTUS is, nor is the nomination of Justices the bitter and partisan business which it is in America. (The nomination to fill the current vacancy in Washington is going to be fascinating: The Donald has tacked to the right on a lot of moral, ethical and religious issues to win the presidency but his track record is rather more liberal. That said, a Republican-controlled Congress is going to want some red meat, and a strongly conservative new Justice will be towards the top of their list of demands.)

Of course, what we are witnessing is uncharted territory for all concerned. The Supreme Court only started its work in 2009, when the Constitutional Reform Act 2005 transferred the judicial functions of the House of Lords to the new body, and never has it been under so much intense scrutiny. Who, six months ago, could have named more than one or two of the Justices? Even the splendid Lord Phillips of Worth Matravers, the Armani jeans-wearing, boat-driving first President of the Court, was hardly a household name even though he’d been a senior judge since the mid-1990s. Lady Hale of Richmond is notable for the fact that she’s the only woman on the Court, and wears a funny little bonnet when the Justices get together in their gowns. But really, who had ever heard of Lord Mance? Or Lord Carnwath? Or Lord Hodge? Lord Neuberger of Abbotsbury, the current President, is largely notable outside the legal profession as the brother-in-law of Rabbi Julia Neuberger.

So what are we to make of all this? It’s an interesting spectacle, and I think it’ll be a while until television is screening live feeds from the Supreme Court again. If it makes even a few people think a bit more about the separation of powers, that’s got to be good. (Though it’s frightening how ingrained ignorance on such matters is; in a previous life I was scolded by a Member of Parliament for not doing what he wanted on the grounds that I, as a clerk to a select committee, worked “for the Government”. Well, not quite, sir. Let me explain things to you. Suffice to say that the MP in question is no longer in the House.) But there are Big Things at stake here. As I said earlier, the actual point of law on which the Supreme Court is deliberating is a narrow and technical one. But its implications are huge. What should the public make of referendums if they are dismissed – all right, that’s a loaded word – by senior judges as “advisory” and having no force in law? The judiciary can now consider what Parliament meant when it passed laws (so-called “legislative intent”), but should they also, in this case, be considering what “the public” meant when they voted narrowly to leave the European Union? What, for that matter, did the public mean? How can anyone tell? It reminds me of the possibly apocryphal story of Prince Metternich, on being told of Talleyrand’s death in 1838: “I wonder what he meant by that?”

Doubtless the two camps will have their own fiercely held certainties. The Government will say, and has said, that the people have spoken and we must abide by their wishes. After all, our beloved leader tells us tirelessly that “Brexit means Brexit”, a phrase I feel I am going to come to hate as much as Lord Reid’s description of the Home Office as “not fit for purpose”. Remainers will argue that Parliament is sovereign and must have a voice, that the Government cannot change the law by use of the Royal Prerogative. Both have a point. We shall see in January which way the Supreme Court has jumped. At least, in the phrase of all good competitions, the judges’ decision is final.

One of the interesting questions, for those of a certain bent, is whether this is a blip or a trend. Is this a one-off, after which the Supreme Court can sink back into its stately and oft-ignored routine work? (It rules in anywhere from 50-odd to 80-odd cases a year; the last judgement, in November, was on R (on the application of Rutherford and another) v Secretary of State for Work and Pensions. I doubt it flew off the shelves, though two of the seven Justices hearing the case dissented, so perhaps there were some fireworks to be seen through a glass, darkly.)

Or, if one can start a sentence with the word “or”, is this a trend? Is the Supreme Court, settling into its still-new role, going to become a force to be reckoned with, a watchdog of the constitution (“You mean it is Mr Balfour’s poodle!” – DLG) and a hotbed of judicial activism? Some instinctive reactionaries like me shuddered at the constitutional reforms of the Blair/Brown Government – it was like watching Edward Scissorhands perform a vasectomy – but we do now, for better or worse, have the holy trinity of the separation of powers between executive, legislature and judiciary, even if the executive is part of the legislature and dependent on it for its existence. There are much cleverer people than me who will dwell on these matters at great length and with great erudition. All I will say is: watch this space.

I cannot leave the matter without some remarks on judicial apparel. I am, it will surprise no-one to know, deeply traditionalist in such matters. I can see the argument for discarding formal court attire in cases involving children, who might be intimidated by wigs and gowns (as a child, I myself would have been as happy as a pig in the proverbial). But I feel strongly that “work clothes”, whether worn by judges, barristers, politicians or clerks in Parliament, are important. They are part of the persona. You are not Alf Bloggs, you are Mr Justice Bloggs and you are performing an important public role. When you put on the clothes, you put on the role. Of course, I am fighting a rearguard action here – I know that the tide of public opinion is against me. If the clerks at the Table in the House of Commons still wear wigs in ten years’ time, I will be (pleasantly) surprised.

As the Supreme Court was set up in the modish New Labour years, it was inevitable they would dispense with much of the ceremonial. The Justices wear lounge suits to hear cases, though I think in some cases the barristers still wear wigs and gowns. The one concession has been the black-and-gold gowns which the Justices don for special occasions. These are fine so far as they go – and, as observed above, Lady Hale of Richmond likes to accessorise hers with a Tudor bonnet – though they bear on the back the badge of the Supreme Court, which I think looks a bit tacky and smacks of footballers’ names and numbers on the back of their shirts. But they also look a bit odd worn over lounge suits or equivalent. At least successive Lord Chancellors since the role was recast by Blair have retained formal court dress for high and holy days. Mind you, the current occupant, Miss Truss, does look a bit like the principal boy in a pantomime when she wears knee breeches. But fair play to her for continuing to wear the traditional robes, even if the full-bottomed wig seems now to have gone the way of the dodo.

It could be worse. The Supreme Court Justices could wear ghastly zip-up gowns like their American counterparts – you just know they’re made of nylon – over their suits, though I have some time for Justice Ginsberg for adding a lace jabot to tidy up her garb a little. But ceremonial is something that Britain does so well. The Supreme Court could have looked so much better with Justices in gowns and traditional judicial clothing. A wig here and there wouldn’t go amiss.

Here endeth the lesson.