Opinion: UK Supreme Court judges aren’t radical activists – no matter how the ruling is spun – The Independent

If the experts know a bit more than Michael Gove would have us believe, the next staging post on the road to hell is imminent.

It isn’t clear when the Supreme Court will rule on Boris Johnson’s muting of parliament. As some previous Supremes under the leadership of chief justice Diana Ross almost put it, they just keep us hangin’ on.

But they can’t keep us hangin’ on forever. Within the next few days, possibly on Monday, the 11 justices will rule on the legality or otherwise of the Johnson-Cummings prorogation.

The mounting assumption among legal experts following the case is that the majority will plump for otherwise.

Even in this age of wonderment, I find that hard to believe. The prospect of the Supremes confirming the Scottish court of appeal and finding against the government is astonishing.

Senior British judges are not revolutionaries. They are by nature and custom the apotheosis of what we still choose to capitalise as The Establishment.

They have an endemic phobia of controversy. They exist as much to maintain the status quo as to make new law. In contrast to their American equivalents, who are minutely inspected before their sexual misdemeanours are ignored and they are allowed to join the bench, they are blanketed in such obscurity that almost nothing is known of their private lives.

Being the centre of attention is anathema. They hate controversy and never showboat. However they vote, whatever their political beliefs, they are utterly, immutably and reliably apolitical.

These points may seem too obvious to state, and in serener times they would be. But if the Supremes do decide that Johnson acted beyond his (and even Cummings’) powers by shuttering the Commons  that the motive was not to enable a Queen’s Speech, but to subvert the democratic process – these points will want remembering when the inevitable barrage of mendacity is unleashed against them.

In that event, The SunDaily Telegraph, Express and Mail will refashion the Supremes into embittered emblems of the Remainer resistance. These dusty, desiccated souls will be reborn as the Fidel Castros of the bench. Once again they will again be elegantly styled as the enemies of the people, hell-bent on stymying the democratic will by averting Brexit.

There will be not a shred of evidence for that. The scavenger hunt for signs of pro-European partisanship will root out nothing more than the fact that one of them owns an Umbrian villa, or another was overheard absentmindedly humming Beethoven’s “Ode To Joy”, the EU anthem, during an especially tedious case about a fine point of maritime law.

If Lady Hale, the court’s soon-to-retire, 74-year-old leader, was once spotted ordering escargots in a bistro, it will be adduced as evidence that she was implanted into the judiciary long ago under deepest cover as a long-term sleeper for a federated Europe.

If Lord Carnwath, also 74 and a product of the breeding ground for revolutionary activism that is Eton College, finds for Gina Miller et al, his fellow Old Etonian Kwasi Kwarteng will take to the airwaves to reveal that many (not himself, but lots and lots of other people) suspect him of liberal lefty leanings on the compelling grounds that he is Lord Carnwath of Notting Hill. Oh, and according to his Wikipedia entry, he sings in the Bach Choir. ’Nuff said there.

And if they do adapt the title of another Supremes hit to tell this PM “Stop! In the name of law!”, what then? 

An unnamed “senior legal figure” is quoted elsewhere referring to that outcome as a “constitutional eruption of volcanic proportions”.

This, to be pedantic, is nonsense. There can be so such thing in a country without a constitution. In the phrase “unwritten constitution”, the word unwritten has the identical meaning as the word “gentle” in that classic Radio Times formulation: “Last of the Summer Wine: another welcome run out for Roy Clarke’s gentle comedy”. It means “no”.

But a volcanic eruption there will be, and certain politicians and their media allies will be queueing impatiently to pour propane on the lava.

Iain Duncan Smith will be wheeled on to comment pages of The Telegraph to portray the Supreme Court as a febrile swamp of anarchistic mayhem.

Delegating the slandering of the judiciary to his distempered attack dogs, Johnson will proclaim his absolute belief in the rule of law. He will then, according to well informed observers, ignore the judgment entirely and seek to re-prorogue parliament at the earliest opportunity. 

Where we go from that point, if we reach it, is anyone’s guess. None of us, as Jeremy Corbyn amusingly sought to explain his self-proclaimed ignorance about the plot against Tom Watson to Andrew Marr this morning, is all-knowing and all-seeing. Even at this advanced stage of our demented civil war, none of us knows nuffink or sees five minutes into the future.

But one thing we do know (hide the knowledge from our readers though some of us may) is that our Supremes are not judicial activists like their US counterparts. 

It will go directly against their instincts to find against the government, and agonise them to be falsely politicised. If they summon the courage to smash the status quo in accord with the law as they intrepret it, they will deserve more universal respect and gratitude than they can possibly expect to receive.


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