Lawfare Supreme Court Lady Hale

Lawfare — politics is now waged through the Courts

There is one enduring feature of all functional democracies – that of balance. Over-mighty monarchs, barons, presidents or workers’ councils do not make for happy societies. If the definition of a gentleman is ‘a man who knows how to play the bagpipes, but doesn’t’, then there is a similar note of restraint about all societies whose constitutional and social settlements make for happy members, be they citizens or subjects. Rulers having the power, but being constrained either by personal integrity or institutional levers of control, rarely or lightly exercised, is a difficult trick to pull off. You might think that extant examples would be treasured. Apparently not.

For centuries, people have looked to the USA and the UK as exemplars of how nations should conduct their affairs. Whisper it if you dare, but the cradle of such happy constitutional settlements is Merry England. We have just seen that legacy being dismantled on both sides of the Atlantic.

In Britain we are in a complete mess because a parliament that repeatedly and unambiguously insisted that it would “respect the will of the people” in the EU Referendum has now brought out the sub-clauses to the the necessary experiment of giving direct democracy to the people. The UK joined the European Economic Community, but there was a latent agenda to become a technocratic United States of Europe. When the people finally learned that their birthrights had been traded for a mess of Brussels pottage, they became truculent, so we had to have a referendum.

When that did not go the way the establishment wished, the secret sub-clauses came out from under the table. The EU Referendum was apparently only “advisory”; it was not binding if “the people did not know what they voted for” (they did), or the campaign was “conducted illegally” (it wasn’t), or “nobody voted for ‘No Deal'” (they did).

There is one country with a fine record of peace and contented citizenry which has a long and distinguished record in incorporating referendums into their structures of governance, and that is Switzerland. Part of the secret of their success is the unexceptional proposition that the ruling structures support the people’s choices.

We might do well to follow that simple principle. In the UK our Supreme Court has validated a power-grab over the Executive by the Legislature, and there are excitable calls for the Prime Minister to resign. It is said he lied because his reading of constitutional theory and his arguments to the Supreme Court were not upheld by all 11 Judges. If that is the yardstick by which people should be held in contempt of Court and Parliament we are going to have to build more prisons. Every day, legal argument is presented and fails. Sometimes justice is done, sometimes it is not, but a balanced approach requires an acceptance that people are entitled to put their case.

In this instance the matter was wholly unprecedented in the UK. There was no statute: the Supreme Court Judges were not clarifying or interpreting the law. We were in uncharted territory: the Judges were creating new law, plain and simple. They could have held differently, as did the High Court when initially asked. Their reasons for not doing so can be speculated upon in future years: no doubt past and future decisions, lectures, writings and interviews will shed light for the historians. We are now stuck with their decision, but do not fall for the notion that this was anything other than the Supreme Court wading into the political arena. Some will say it was necessary, but the whole story will validate a central proposition of the American Realist School of Jurisprudence, that if you want to predict a decision, don’t study the Law – study the Judges.

If we are heading into troubled waters in the UK, the USA had problems brewing with moves to impeach President Trump. They will not succeed, of course: the political numbers exist in the Lower House but not in the Senate. Yet that is not what the game is about.

On both sides of the Atlantic we are seeing what is being described as ‘Lawfare’ – politics waged through the Courts by those who can afford to do so. Central to the motivation is the quest for confidential political data using the mechanisms of discovery. This is where that central issue of balance returns. The challenger gets to keep his private strategy discussions secret, while those under judicial attack must reveal all.

In the USA this has reached a strong degree of malpractice. Hillary Clinton destroyed vast amounts of data, and her staff and other officials were offered immunities. Investigations were closed down and the judicial system has simply not been up to addressing such abuses. In the UK we are not yet at those levels of bias in the politicisation of judicial process, but complacency would be imprudent.

What we are seeing is a Remain Establishment using judicial processes and seeking disclosures from a weak Executive attempting to implement the will of the people as expressed in the only democratic instrument offered, all the while keeping the character of their own machinations and collaborations with the EU a closely-guarded secret. This is not a fair fight, and one suspects the British people will not like it.

The EU has no significant mechanisms for holding its Executive to account, which is a primary democratic reason for Brexit. Prime Minister Boris Johnson is being hobbled by a Legislature that fears the people’s judgement. This will mean we have a dreadful few months in prospect, and how it all resolves will depend on the people’s stomach for a fight to protect their historic rights and liberties. These include a proper balance of powers: MPs fulfilling their promises to the electorate, and everybody respecting not only court decisions but the outcomes of democratic processes.

Only a General Election can restore balance and legitimacy in these most divisive of times.