Posted by Sam Fenny - Memes and headline comments by David Icke Posted on 22 May 2024

Will No One Save Us From These Troublesome Judges?

To observe the travails of the U.K.’s sitting Tory Government in its dog days is like watching a bloated bluebottle being slowly trapped and devoured by a juridical sundew. With every thrashing of a leg or whirring of a wing, with every desperate lunge of insectoid flesh, yet more court cases are launched, and yet more sticky strands – pitiless, remorseless, hungry – attach themselves to the frantic victim. Panicked, it has no clear idea why any of this is happening, but it has a horribly lucid understanding of what the finale will be. There is no escape.

Hence, in the last month alone the Government was embarrassed by two defeats in major judicial review cases, one concerning climate change policy and the other concerning the application of legislation in Northern Ireland. Neither of them are the first of their genre (see for example here and here). Meanwhile, more hares are running. Earlier this month the FDA, the union of choice for senior civil servants, applied for permission to apply for judicial review of guidance issued by the Cabinet Office on April 29th 2024, which would purportedly require civil servants to act in breach of the Civil Service Code. And everybody expects that the new Safety of Rwanda (Asylum and Immigration) Act 2024 will give rise to a further confrontation with the courts later this year, as Act II in the ongoing drama concerning the legality of the ‘Rwanda scheme’.

And these are just the dramatic, headline grabbing examples. At a more humdrum, workaday level, Government policy seems to be increasingly hemmed in by the courts. To pick an example almost at random, last year the Court of Appeal held that the policy of not making advance Universal Credit (i.e., welfare) payments to people who do not yet have National Insurance numbers (the equivalent of a social security number) because they have only recently arrived in the U.K. was unlawful on the basis that the policy was not in the court’s view permitted by the relevant statute. This kind of thing, wherein a relatively minor-seeming Government policy is found to be unlawful on what appears to the layperson to be a technicality, has now simply become an ordinary, common-or-garden feature of our political life – no policy is fixed, because one can never know if some lavishly funded claimant will not turn up to apply to the courts to challenge it.

And this strategy of death-by-a-thousand-court cases is of course hardly unique to the U.K. Readers will likely be familiar with the recent European Court of Human Rights ruling on Swiss Government policy with relation to climate change; they may be less familiar with a brewing decision by the same court with respect to the decriminalisation of the purchasing of sex in France. And then, in a very different context, there is the matter of Donald Trump’s various trials, transparently brought with the aim of ensnaring him in legal process so as to prevent him adequately campaigning and ideally to make his electoral victory impossible. There, the politics of the sundew have been less successful and the bluebottle looks set not only to escape but to be elected President, but the underlying similarity of approach is clear.

All this serves to demonstrate a truth that has long been known to legal theorists of a Left-wing bent (ironically enough), which is that the idea of the judicial process that often exists in the head of the layperson (that law is a ‘neutral’ or objective body of rules which judges simply apply to resolve disputes) is more or less the opposite of the truth. It is in fact the case that the more power we grant to judges, the more politicised our lives become, and the more we become subject to arbitrary exercise of discretion.

This is because judges are the world’s greatest confidence tricksters – all the more effective for the fact that their tricks are for the most part unintentional. Not only do they generally in fact perform politics through the guise of ‘law’, they do so in such a way as to present political questions as faits accomplis, in a manner which cannot be gainsaid – to indeed set political decisions in stone, and insulate them thereby from democratic challenge. This, indeed, may be judges’ most politically significant role of all – and it suggests that a commitment to reinvigorating a depoliticised ‘rule of law’ may actually require a radical reduction in the amount of law that is produced.

Some potted intellectual history, then. Around the turn of the 20th century, a group of highly influential American legal theorists, who labelled themselves ‘legal realists’, began a quiet revolution against what they called ‘legal formalism’ – the idea that law is simply a mechanical process by which a rule is identified and then applied to determine an outcome in a particular case. Most of the realists, who were defined by Jerome Frank as ‘rule sceptics’, argued that a court case is not really a matter of applying rules at all. A rule is never totally determinate – it is always open to interpretation – and no two cases are ever identical, so it is always possible to argue that precedent should not apply. And, in any event, if a rule could clearly be applied to resolve a given dispute, then the dispute would never be being litigated in the first place because the parties would know the outcome in advance. Litigation by definition only really happens when a rule cannot resolve a dispute, and hence when it is arguable either way.

The judge in a case, for the rule-sceptics, therefore does not apply a rule; he applies his discretion in choosing the ‘best’ outcome, with ‘best’ ultimately of course being defined by political, economic, cultural, ideological and emotional – that is to say, extra-legal – factors.

The legal realists – who were mostly New Dealers in favour of Franklin D. Roosevelt’s wide-ranging reforms – were chiefly rebelling against the tendency of the Supreme Court of the era to find New Deal reforms unconstitutional on the basis of a restrictive reading of the Constitution. And they had a relatively humble goal – to make legal decision-making more open and honest. Courts, in their view, should acknowledge that they are not simply neutrally applying ‘the rules’, but are identifying which rule to apply, how it should be interpreted, and what outcome it should produce, on the basis of policy. This was not indefensible, because it was simply inevitable; what was indefensible was failing to recognise it (or, worse, concealing it).

Read More: Will No One Save Us From These Troublesome Judges?

The Dream

From our advertisers