Let me put my views right on the line. The Daily Mail is seeking to subvert the rule of law by putting insidious pressure on independent Judges. A very serious charge, which I propose to justify from their own conduct and reasoning. I would hope that ultimately the Prime Minister and the Lord Chancellor will find the right words to condemn them. Ultimately the Attorney General may need to act. That will take enormous political courage. I am not remotely confident that any of those actions will take place.
Back first to the decision under appeal. To a simple legal mind, the ruling of the LCJ and his colleagues is crystal clear. There are defined and historical limits on the exercise of the prerogative. The course sought by the Government breaches those limits, as a matter of clear interpretation. Thus the Government must proceed by another route. The consequences of that are not the business of the judges. They simply interpret, to the best of their ability, the Law.
It follows that on appeal, that interpretation must be shown to be flawed. For example, too great weight was given to historical precedent. In interpreting the correct legal position, it may be said boldly that the Judges of our Supreme Court need to recognise the people’s voice, expressed sufficiently decisively in the Referendum vote.
Pause. If for the reason given or following more far more sophisticated submissions, the Supreme Court allow the appeal, THAT IS FINE BY ME. I really do not care at all what decision is reached in law. Whatever it is, I and everybody else should, indeed must respect it. That is the way the system works.
Now let us see how the Daily Mail has set out to subvert the process, whilst paying lip service to judicial integrity and independence.
1. Collate and analyse all European connections of each Supreme Court Judge in order to assert the possibility or worse, near certainty of bias. Then rate them with stars.
1. Collate the views of the relatives, friends and acquaintances of Supreme Court Judges to assert that the Judge concerned will, for example, follow meekly the views of his wife.
3. Argue that they cannot help being influenced, directly or indirectly, by those views or connections.
Now you and I and everyone who understands the system in practise knows that not one of the Judges in question for a single instance would undermine their judicial oaths by any or all of the matters highlighted by the Mail. It is a total calumny. A lie. An insidious smear. A vicious attempt to damage and mislead. Lifetimes spent deciding strictly on the principles and facts of each specific case deliberately and cynically ignored.
But someone other than an outraged lawyer should be saying that.
Or rather, shouting it from the rooftops.
For Daily Mail justice is a very shoddy and unpleasant concept. Let us have no part of it.
The editor should apologise and resign. The Mail needs a new editor and a new sense of responsibility without changing its views. Today it shames our press and demeans our Judges. The pens of tyrants are polluting free speech.
Nigel Pascoe QC