Westminster Watch

Rule of law and judicial independence are critical to the maintenance of a healthy body politic as we face some of the greatest challenges of our time, writes Mark Hatcher

Earlier this year Donald Trump claimed that US District Judge Gonzalo Curiel of San Diego was unfit to hear two lawsuits against the now-defunct Trump University because ‘he’s a Mexican’. 

Presumably he would be biased against Trump’s plan to ‘build a wall’ on the Mexican border. Trump has also suggested that any judge, whether of Mexican or Muslim origin, would be biased against him. He declared he was ‘getting railroaded’ by a ‘rigged’ legal system and suggested that he would be ‘back in November’ to change things. On 8 November the people of America, defying the pollsters and pundits, voted to enable Donald Trump to do just that.

After a bitter, rancorous and deeply divisive campaign, the US President-Elect’s commitment to observe the rule of law, respect the separation of powers and uphold freedom of speech looks less than clear. No wonder that African Americans, Latinos and other minorities are fearful. Geopolitical turmoil, protectionism and American isolationism look set to become the hallmarks of the new regime. Right-wing European populists and hard Brexiters are celebrating. Trump has stormed the citadel and promised to drain the ‘Washington swamp’.

Riding a wave to ‘make America great again’ and harnessing social media to the full, Trump triumphed because he tapped into the alienation and disillusionment of white voters on modest to low incomes, whose living standards have stagnated and whose communities have fallen apart. These people have felt short-changed by liberalism and globalisation which promised so much but left too many behind.

The disconnection of the political elite from the very real and deeply felt concerns of ‘ordinary people’ in the American mid-west and the Democrats’ traditional heartlands is plainly part of a wider and deeper phenomenon. Trump’s victory was Brexit plus plus plus.

In less than a year the political world has been transformed. The point was not lost on Theresa May in her speech to the Lord Mayor’s Banquet delivered in the medieval Guildhall of the City of London, complete with pikemen and musketeers in their 17th century dress. Many of those present will have found the ornate surroundings and ritual of this annual event reassuringly familiar but the Prime Minister’s speech was addressed to wider audiences who are looking for a sense of vision, direction and purpose about how Britain is going address the greatest challenges of our time.

For May, the danger is that politicians, as well as those in positions of leadership, fail to see that the liberal consensus that has held sway for decades is actually failing to maintain the consent of many people. They end up becoming the enemies of liberalism, not its champions. Those who fail to make sense of the changing world, and thereby miss the opportunity to shape a new approach, are sowing the seeds of their own destruction. Change is in the air and it’s time to act.

So within the organising principle we call democracy there are huge opportunities for re-engagement of the increasingly disparate elements of our polity and for the reinvigoration of the institutions that bind us together. It is in these uncertain times that the rule of law and judicial independence are of the utmost importance in providing the safeguards of democracy. We undermine them at our peril.

How will President Trump re-shape the Supreme Court, with one vacancy to fill now (following the death of Justice Antonin Scalia in February) and the possibility of further appointments to come? Trump has already indicated his preference for pro-life judges with a conservative bent to protect the Second Amendment and interpret the Constitution strictly. If liberal Justices Ruth Bader Ginsburg (83) or Stephen Beyer (78) retire in the next four years, there could be a 6-3 conservative majority for the first time since the pre-New Deal era which ended in 1937. A restored conservative majority could have a powerful effect for decades to come, for example on re-examining the constitutionality of the regulatory state and on restricting the authority of federal agencies, or on revising climate change regulations, consumer protection and Wall Street measures, and by following Trump’s anti-regulatory stance.

Judicial independence has taken more than its fair share of knocks on both sides of the Atlantic over the past month. The disgraceful media and political attacks on the British judiciary in the Art 50 litigation, encouraged Nigel Farage (who is admired by Trump) to make his own inimitable contribution to the debate and prompted belated responses from the Lord Chancellor, and other members of the government, to acknowledge the essential role of the judiciary in safeguarding our constitutional arrangements as well as recognising the integrity and impartiality of the judges.

However, the apparent reluctance of the Lord Chancellor initially to engage with the constitutional principle of the rule of law (and specifically her role in relation to that principle: Constitutional Reform Act 2005, s 1), following the attacks in the Miller case, seemed to reflect more concern to avoid offending the tabloid press than fulfilling a constitutional duty to uphold the independence of the judiciary, a duty which – the Act makes plain – all Ministers must satisfy: s 3(1). Fortunately, the Advocate-General for Scotland, Lord Keen of Elie QC was able to provide some reassurance to Parliament when, on 8 November in the course of Lords’ Questions, he observed: ‘My Lords, we have a judiciary of the highest calibre. We have a free press, which is not always of the highest calibre. Sensationalist and ill-informed attacks can undermine public confidence in the judiciary, but our public can have every confidence in our judiciary, a confidence which I believe must be shared by the Executive.’

No doubt as the Supreme Court begins shortly to hear the Miller appeal (which will be televised), and as Mr Farage’s 100,000 supporters converge on Parliament Square to make their presence felt, we shall hear more about judicial independence, perhaps in commentary that is more measured and better informed than it was a few weeks ago.

In the meantime, both Houses of the Westminster Parliament will continue to be pre-occupied with different aspects of Brexit.

The House of Lords Constitution Committee has already reported that it would be ‘constitutionally inappropriate’ and would set a ‘disturbing precedent’ for the government to act on the referendum without explicit parliamentary approval.

The Lords EU Committee has already urged that Parliament should be actively involved in scrutinising the forthcoming negotiations on Brexit as they happen. Its six sub-committees have been taking oral and written evidence and preparing reports on aspects of the EU-UK relationship following Brexit.

The Internal Market Sub-Committee’s inquiry into future trade between the UK and EU in services is relevant to the Bar and other providers of legal and related professional and business services.

Separately, the EU Justice Sub-Committee, chaired by Baroness Kennedy QC, has been receiving evidence on acquired rights (to which Anthony Speaight QC contributed) and the Joint Committee on Human Rights is conducting an inquiry into the human rights implications of Brexit.

In the Commons the Justice Committee, chaired by Bob Neill, has been seeking views on the implications of Brexit for the justice system, to which the Bar Council has contributed evidence drawing on the work of its Brexit Working Group, led by Hugh Mercer QC.

The new Exiting the EU Committee, chaired by Hilary Benn MP, has been taking evidence on the UK’s negotiating objectives, to which Catherine Barnard, Professor of EU Law at Cambridge has contributed.

With the UK accounting for 10% of the global market for legal services (second only to the US) and being the largest market in Europe (accounting for about one fifth of its legal services fee revenue), the state of politics in the US, the EU and the UK matters. It may sound trite but is nonetheless true to say that the rule of law and judicial independence are critical to the maintenance of a healthy body politic as we face some of the greatest challenges of our time.

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.