This scandal is far from over..updated

Read the editorials, absorb the comment pieces, not least by Dominic Lawson, admire the brilliant and vitriolic blogs, not least by The Secret Barrister. This story will run and run.

But Why? I can only cite a very good friend of mine and a far better lawyer than I could ever hope to be. There is every chance that this judgment will be upheld and for the reasons given. Which leaves two questions.

1. How can we prevent further damage to the democratic process, whilst doing no damage whatsoever to freedom of speech?

2. How do we persuade those who need to speak out to do their duty?

The two questions are interrelated. But the first is primarily to do with education, to explain the judicial function with absolute clarity.

A good starting point is the Judgment itself. I will use the excellent Summary which accompanies it.

“The issue before the court is whether, as a matter of UK constitution law, the government is entitled to give notice of a decision to leave the European Union under Article 50 by exercising the Court’s prerogative powers and without reference to Parliament

This is a pure question of law. The court is not concerned with and does not express any views about the merits of leaving the European Union. That is a political issue.

It is accepted from all sides that this legal question is properly before the court and is justiciable.”

Could anything be clearer?

Now I can see at once how the assertion that it is a pure question of law sits very uneasily with those who assert that it’s consequences are highly political. It will or may delay the implementation of Article 50.

It allows Brexiteers to fear absolutely genuinely that it may frustrate the will of the people. I certainly do not discount that fear. I voted to remain but absolutely accept the result. We must now leave, full stop. Yet many remain deeply suspicious of underhand steps to subvert the will of the people.

But the answer lies in the hands of the Government. Shorn of the right to exercise a veto by prerogative, they must speed up the Parliamentary process as they deem fit, whilst allowing Parliament its voice.

The second questions allows a more robust answer.

I refused to attack the appointment of the LC and I definitely wanted her to have at least the chance to follow the best of Michael Gove. Now I am very disappointed and that extends to the limited response of the Prime Minister. Far too little and too late. Just imagine how Lord Hailsham would have lambasted the evil comments of the Daily Mail! How can anyone begin to justify the insult to the Master of the Rolls? The phrase Enemies of the people will redound to that paper’s discredit as long as we can foresee. It was contemptible, base and shocking. Other papers must bear their own lesser shame.

It was the absolute duty of the LC to have condemned those attacks firmly and decisively and her late statement failed to do so. In fairness, her letter to the Times put the importance of judicial independence more strongly.  But it failed still to condemn the specific personal abuse.  Until it is, I do not think the issue can be put aside.

At which point, the advocate in me aches to find some mitigation. Surely she must have feared the reaction of her boss? Perhaps informal messages had been exchanged. They may have made it more difficult for her to assert her independence. And how can you castigate those who otherwise are supporting you to the hilt?

Well I have done mu best, but they are, at best, weasel words. The LC and the PM have let down the Judges under personal attack and they must accept the torrent of criticism which has followed. There is in the wings, as he has been for years, a perfectly obvious and supremely well qualified alternative LC, treated shabbily by the Government. One day I fervently hope that his time will come. Then we will see what prestige a great lawyer can bring back to the office.

So how do we prevent attacks on the Supreme Court before they have even received their papers, let alone decided. How do we protect them if they uphold the present judgment?

The answer is is by one bloody great big concerted effort, an application of reasoned and informed explanations of function and a plea for balanced journalism. That includes an explanation of the circumstances in which any Judge of principle does not sit because of a declared interest touching directly on the issue. That was unnecessary in the Court below and I have no doubt will be in the minds of the Supreme Court also.

What we cannot do is to let this gross distortion of our processes be forgotten. A line was crossed. We fail to row back from it at our peril.  There is no defence of free speech available to professional malice makers.

 
Nigel Pascoe QC