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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So whose law is it anyway?

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The Telegraph chose to feature the (not entirely unsurprising) revelation that the decisions of judges working in immigration courts often favour those appealing rather than the immigrations services. I’m with the gut of the nation here by thinking that the “family life” defence in human rights law is rather over-played - it seems the lawyers aren't.

However, the article led to a little twitter interchange that ended with:

And really, magistrates are useless (kept as a cost-saving measure) & juries are biased, unfair & easily mislead.

I can only conclude that the comment reflected a view that judge and lawyer led law is somehow fairer, more equal or more open.

So whose law is it then? If magistrates are useless and juries biased must we assume that judges are without fault and lawyers exemplars of human perfection. More importantly we arrive at the point where the law is placed beyond democratic control.  At the moment there is an idea that citizens have a role and duty in the administration of the law.

I have no issue with judicial independence but do not believe that lawyers (and wrongly all judges are now lawyers) are any more infallible than the Pope. Like all human’s they make mistakes and allow prejudice to cloud judgement. Worse – and this is the great lawyers failing – too many of their assumptions and arguments are founded entirely on appeal to authority rather than consideration of the facts. What Lord Justice Bigot said in 1875 is too often of greater significance to our judges than the facts and certainly than the application of common sense.

Was I asked an opinion as to the organisation of the law; it would start with wanting more democracy. The approval of judicial appointments by Parliament, more jury trials and a wider role for magistrates – for example in the family courts - and I would abolish the privileges of barristers. There would be no secret courts and no aspect of the administration of justice unwatched by representatives of the public. 

In the end, the law is not some deity to be served by a collection of bewigged priests and acolytes. The law is not something so occult as to be both frightening and intimidating to the ordinary citizen. Yet that is what we have – a collection of wealthy, powerful people polishing the temples of law, speaking a language understood by only a few and dismissing the concerns of the public as bigotry or ignorance.

If other aspects of life benefit from a healthy dose of openness and democracy, I see no reason why the law shouldn’t too. But we’re up against the “we know better than the public” view that prevails – here’s that tweeter, Matt, again:

'Modern' (post-Blackstone) common law is certainly not 'the people's law', and nor should it be.

Depressing.

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A thought on social mobility - and my Uncle Ray...

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My late uncle Ray was a judge - not a grand high court version of that beast but a more humble sort sitting in County Courts. But then I'm a Tory politician, you'd expect me to have at least one uncle sitting as a judge!

My uncle didn't go to university. Indeed he left school at fourteen and got a job in a solicitor's office doing odds and bits of jobs around the place. By dint of application and night school (not to mention working every hour god sent) Ray got to be a solicitor, then a partner and then a judge.

So Ray, from an ordinary working-class background in South London, ended up in the most bewigged of middle-class professions. All without spending time in and around the dreaming spires, redbrick halls or tatty '60s blocks of a university. And there are plenty of others of Ray's generation who took the same route - school, office job, night school or correspondence college and hard work.

So it rather galls me (someone who swanned from school to university without much thought) when people speak of university access as if it were the only means to resolve issues of social mobility. And I am struck by Alan Milburn's observation about the professions:

"The question posed by this report is whether the growth in professional employment is creating a social mobility dividend for our country - the short answer is not yet. In fact, the lack of progress on opening up the professions to a wider pool of talent risks squandering that enormous opportunity for social progress."

In times past plenty of lawyers, accountants and bankers learnt their skills while doing the job. It was a recognised and celebrated route to the top. For sure, the grand still paraded from Harrow to Oxford to a posh chambers in London but that was not the only route.

It is not just a matter of getting into university but persuading those professions - law, accountancy, nursing and so forth - that a vocational route is as valid for them as it is for quantity surveyors, marketing directors and bakers.

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Did you listen to what your mother said?

There’s that classic comment from Arthur Dent:

"You know," said Arthur, "it's at times like this, when I'm trapped in a Vogon airlock with a man from Betelgeuse, and about to die of asphyxiation in deep space that I really wish I'd listened to what my mother told me when I was young."

[Ford Prefect:] "Why, what did she tell you?

[Arthur:] "I don't know, I didn't listen."

And it seems that many of those debating sentencing policy weren’t listening to their mothers who, I’m pretty sure, will have said at some point:

“Two wrongs don’t make a right.”

Despite the efforts of all those mothers, this message didn’t sink in. Let me explain.

It is probably wrong that lots of wealthy folk, celebrities and such like who are guilty of crimes didn’t get the proverbial book thrown at them. Those fiddling MPs maybe should have been banged up for longer and perhaps celebrity druggies should be incarcerated in the deepest, darkest of dungeons.

But that doesn’t make it right to apply leniency to another wrongdoer in another circumstance. The failure to deal with one set of crimes shouldn’t dictate that we should also fail in our response to another set of crimes. So when magistrates give tough sentences to looters, we shouldn’t go about crying foul – those magistrates and judges only apply the rules given to them by parliament.

For my part, I do not think that the world out there thinks that tough sentencing is wrong – indeed most folk, as we found here in Bradford back in 2001, rather appreciate the thwack of tough justice on rioters.  If it was wrong to give bad MPs a lenient sentence and wrong to have a criminal justice system that petty thugs stick two fingers up at on a daily basis, then it must be right – and welcome – to see a little toughness for a change.

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Judges back Department of Health - 550 people dumped on the dole

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In a terrible decision the Appeal Court upheld the Government's proposed ban on cigarette vending machines:

Cigarette vending machines will be removed from pubs, clubs and restaurants after the top judges yesterday upheld a Government ban.

The measure, drawn up by the Department of Health to combat under-age smoking, will come into force in October.

 As a result of this decision an entire industry will close:

Tobacco industry chiefs said it would ‘abruptly and entirely eliminate’ the vending industry, costing at least 550 jobs.

And – even worse – the judges acknowledged that there’s no evidence to justify the decision:

...statistics used by the DoH to justify the ban were ‘little more than guesses’, the judge said

So 550 people go home tonight knowing they’ll have no job in October as a result of a decision based on evidence that is just a guess.

As an aside the self-important Ben Goldacre had this to say about people in public health:

People who work in public health bend over backwards to disseminate evidence-based information to the public

This single decision shows just how wrong Ben is (again).

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The law is an ass. And lawyers serve that donkey.

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My professions – such as they are – are accessible. That is you do not require a particular piece of paper in order to be a politician, a marketer, a fundraiser or a regenerator. There are folk with a range of qualifications, experience and approach doing all these professions – and doing them well.

The problem with all this is that people try to make their professions exclusive – there’s a Chartered Institute of Marketing, there’s an Institute of Fundraising and I’m pretty sure there’s an Institute of Economic Development. All these institutes wish to secure – in the manner of the medieval trades guilds – control over who does these jobs. Not because it is only possible for people holding the institutes’ paper to do these jobs – that is demonstrably not the case – but because the use of these barriers restrains supply and thereby artificially raises the price (we get paid more money).

These tyros look wistfully at the old professions – and especially at the law. The legal professions have control of a system that ossifies the inefficiency of the ancient courts, that talks in a language different from that or ordinary people, takes on a position of such elite magnificence that us mere civilians must nod in wonder at its genius.

But there’s a problem. The law is an ass. And lawyers serve that donkey not the public.

The question is whether the law’s stupidity is a function of those who make the laws – the politicians – or a result of the profession’s distance from normal life? And while we rightly focus on the daftness of some laws, we do not ask about how the law’s concepts corrupt real meaning and act to drive perverse and sub-optimal outcomes.

Let me explain with reference to two ‘terms’ often heard in reference to court decisions – “reasonable” and “ordinary”.

We think we understand what these words mean. To most of us, “reasonable” means governed by common sense – we do not need firm or strong boundaries to that and can be flexible or fuzzy about it. But we know reasonable when we see it! But hang on – lawyers don’t mean common sense they mean something else entirely:

The word “reasonable” in law means fair, proper or moderate having regard for the circumstances. It is most frequently used as a word fixing a standard of assessment. Use of the word imports an objective test to the noun with which it is used.

So this isn’t the exercise of judgment but the application of a test. And, in applying that test, it is possible to make the reasonable unreasonable (and vice versa). The law becomes that donkey again.

And so to “ordinary” – used in the recent ‘twitter joke’ appeal. As the judge put it:

As for the tweet at the centre of the case, she called it "menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed."

It is very clear that the lawyer has a very different – perhaps more precise – definition of “ordinary”. The ‘ordinary person’ is a lawyer’s convenience – untested and unevidenced – allowing them to lay claim to understanding. The judge’s statement has to be untrue since she could not possibly know – so a convenient fiction is constructed to avoid the need to test the truth of that ‘ordinary person’s’ response.

None of this is meant to be an interpretation of that case since, as I am not a lawyer, I cannot understand the decision. What I am observing is the manner in which the law and lawyers create a language that excludes that ‘reasonable man’ and ‘ordinary person’. Such people are merely chimera – constructs that allow the judge to impose his or her view on the world through a claimed ‘reasonableness’ or ‘ordinariness’. They are not you and me - real 'ordinary men and women'.

In its essence, the process of trial is simple. The situation is described, arguments are made on both sides and somebody (or bodies) arrives at a judgment on the basis of what is heard. To conduct such a process does not require great study except that lawyers – aided and abetted by politicians – have created a great body, a different language and an excluding process. Which allows said lawyers to maintain and protect their privileges.

The legal professions are the last of the medieval guilds still wielding power and control. They are self-regulated and exclusive. Access to the law is expensive – unavailable to all but the very rich, the very poor and, of course, the Government.

Any reform of the law has to start with reforming the professions and opening up the judiciary. So long as the professions act as guilds – controlling entry, managing the work and administering internal justice – we will continue to get these perverse outcomes of legal processes.

…but the law will still be an ass. And lawyers will still serve that donkey.

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