The current political administration in Britain attacks the Civil Service (by cull) and the Judiciary (by murmuring) while tightening the grip of the Executive, particularly through unelected advisers and ‘specialists’. By Christopher Stanley For readers of Village the names of Gina Miller and Shamina Begum may not immediately be recognised. They are two women with British citizenship. That is probably all they have in common. But both have made headlines in the British press by way of their (ab)use of the courts. They have atttracted notoriety within parts of the British media and have now provoked the hositility of the  Conservative government or rather its Executive (right) wing in the Cabinet Office. Their actions may have dangerous constitutional consequences, not by any fault of their own but by the reaction of unelected officialdom (SPADS), including media commentators (The Daily Telegraph and The Spectator) and right-wing think-tank ‘influencers’ (intellectuals) such as Policy Exchange.  My last post for Village examined an apparent  constitutional ‘crisis’ in Britain. This ‘crisis’ was presented from the perspective of “The Narrow Ground” of Northern Ireland. However, it was also written as a warning to other advanced democracies tempted to tamper with the constitutional machinery of their systems of governance and also to identify emerging trends in the governance of complex societies under threat from ‘emergency’ situations including terrorism, fiscal downturn and pandemics.  For Northern Ireland, any tinkering with the British constitutional settlement (actually English constitutional convention within a devolved jurisdictional structure) must be considered in terms of The Belfast/Good Friday Agreement 1998 (GFA98), the expectations of all people in Northern Ireland and the current political arrangements including the maintenance of the security of what is a politically and economically fragile society.  A semblance of stability at Stormont has only recently been restored.  Northern Ireland has its own ‘particular circumstances’ and within the fabric of its society is a commitment to human rights and the Rule of Law, of which the judiciary are the principal guardians.  I have been critical of the most recent Whitehall proposals for Northern Ireland which, if implemented, would, I suggested, undermine the commitment to human rights and the Rule of Law for Northern Ireland. These proposals could lead to valid legal challenge (or disruptive ‘political litigation’?), dissent and fracture (see: The Pall is Lifting written for readers of Village). As ever Whitehall-thinking and Westminster-ideology ignore the subtleties required to secure the peace process in Northern Ireland. [i] Where do Gina Miller and Shamina Begum figure in this view from The Narrow Ground? In short, their cases are being used as an excuse by the Conservative government to reign in “excessive” judicial power. This is part of a process of radical response to the apparent constitutional “crisis” which, if implemented, would further increase dominance by the Executive over the Legislature (Parliament) and the Judiciary.  This is happening on the false pretext of restoring Parliamentary Sovereignty which is the none too subtle sleight of hand within an Elective Dictatorship by which the roles of Parliament and the Judiciary within the dynamic of the Separation of Powers are dangerously diminished, undermining accountability and transparency by limiting scrutiny of Executive discretionary powers. It severs the trust – the fiduciary relationship – required between those who govern and those who are governed and blurs government for the public good, needed now more than ever in an era of uncertainty and emergency.  [ii] Why should Westminster Politicians and Whitehall Ministers, Civil Service Mandarins and Cummings-Type SPADS be careful when Murmuring Judges?  Murmuring judges is an offence in Scottish law (called Scandalising Judges in English law) and is the act of causing offence to judges, accusing them of corruption – or indulging in judicial overreach (See: BBC News 10 12 2012). Judicial overreach or the exercise excessive judicial power is the present scourge of some in the current British government, of their advisers and their friends in right-wing neo-liberal think-tanks such as Policy Exchange whose express role is Protecting the Constitution: “The rise of judicial power in the UK in recent years is a striking change in our constitutional arrangements – in how we are governed – a change that threatens good government, parliamentary democracy, and the rule of law. The expansion of judicial power is a function both of Parliament’s decision to confer new powers on courts, most notably by enacting the Human Rights Act 1998, and of the changing ways in which many judges, lawyers and scholars now understand the idea of judicial power. Parliament is responsible for maintaining the balance of the constitution and should restate limits on judicial power, restoring the political constitution and the common law tradition.  The Government has been elected on a manifesto commitment “to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”, to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government” and to “ensure that judicial review … is not abused to conduct politics by another means or to create needless delays” (page 7). Gina Miller’s ‘offence’ was (on two occasions) to challenge the British government regarding exiting from the EU. On both occasions the UK Supreme Court (UKSC) upheld her application.  In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 the court ruled that fresh legislation had to be enacted before the Government could trigger Article 50 and begin the process of the UK leaving the EU.  In Miller (No 2) [2019] UKSC 41 following the prorogation of Parliament — a step formally brought about by the Queen on the advice of the Prime Minister — the court was ask to determine whether that advice, and the resulting prorogation, was unlawful.  The court held that the issues raised by the case were properly justiciable and concluded that the advice and the prorogation were unlawful.  The UKSC held that the prorogation prerogative does not extend to a situation where a fundamental constitutional principle would be impinged upon without a reasonable justification.  Shamina Begum’s ‘offence’ was more straightforward. She is a British-born woman … Continue reading Beware of Murmuring Judges and prepare for Whigs on the Green.