Article 50 Case: Incompetence, lies and the importance of free speech

I may have been misunderstood. Not because of anything I said but because of how some people decided they knew what I'd said or because they knew what I really meant. The starting point was that, following the High Court decision about invoking Article 50 of the Lisbon Treaty, I was angry. Indeed, I was as angry as I had ever been about something political.

Now if people had noted what I said, they'd have spotted how my anger wasn't directed at those three judges (however much I might think their decision egregious) but rather at the Government. After all they'd proposed and got support for (overwhelming support as it happens) a proposal to have a referendum on our membership of the European Union - something that had been in the manifesto that government stood on in May 2015:

That’s why, after the election, we will negotiate a new settlement for Britain in Europe, and then ask the British people whether they want to stay in the EU on this reformed basis or leave. David Cameron has committed that he will only lead a government that offers an in-out referendum. We will hold that in-out referendum before the end of 2017 and respect the outcome.

So my expectation was that the result of the referendum (and whether you like it or not, we voted to leave) would be implemented. The Government even wrote to us all telling us just that:



All pretty unequivocal. It seems, however, that this isn't really the case, at least as far as those three judges are concerned. Not only was the Government incompetent in proposing a referendum bill that didn't do what it said in the manifesto, they then compounded this by issuing a false statement that this was so. Put simply the Government led by David Cameron was either incompetent or it lied (maybe even both). I feel entirely justified in being as angry with this as I was with Tony Blair's government when it sent young men to die in Iraq on the basis of what turns out to have been a lie. Just as subsequent enquiry revealed Blair's duplicity, the three judges last week revealed the incompetence (or lies or both) of David Cameron's government.

Although I may not be angry with the judges, I do have a great deal of sympathy for the many people - including those writing the front page headlines in some newspapers - who were explosively cross with the decision and those who made it. And I find the reaction of too many, especially lawyers clucking round their superiors, to these headlines deeply concerning. All this stuff about the headlines "intimidating" the judges (by writing in a newspaper - how spineless are they?) and wanting some sort of unspecified action from the Government to deal with the offending editors simply represents an attack on press freedom and free speech. Do we really think a headline in the Daily Mail is going to destroy the independence of the judiciary, however unpleasant and intemperate that headline might be?

The thing with free speech is that it's loud, messy and often pretty unpleasant (trust me on this - I get that same bile directed at me as those judges got). But no part of our state's institutions should be immune from robust criticism - even when that criticism is ill-informed or ignorant. It is disturbing that the Bar Council and a parade of "Important Legal People" think judges should be privileged by newspapers being punished in some way if they dare to criticise. The law - just like other institutions - needs broad public support. If the law's leadership is too thin skinned to make good decisions because a newspaper might have a go at those decision, then perhaps we need to get better leaders?

If the law is excluded from exposure to free speech because of 'judicial independence' then we have a problem. Law in all its forms - and the decisions lawyers and judges make - is central to our lives. If we're not permitted to challenge those laws, those lawyers and those judges then our liberty is compromised. The law becomes vainglorious, privileged and its practitioners untouchable. In a nation that values freedom and the idea of democracy, this cannot be so.

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