Statism and Judicial Activism
By Duncan Whitmore
In a previous essay concerning the Supreme Court’s judgment against Boris Johnson’s decision to prorogue Parliament1, we noted that several commentators had criticised the judgment for its “political” nature, calling for greater scrutiny of the judiciary and the judicial appointments process.
It will be argued here that castigating the case as the moment when the judges crossed over from law to politics is wide of the mark, and that a politicised judiciary is a necessary and unavoidable outcome of the growth of democratic statism. As we shall see, this is a trend which Britain has endured for around a hundred years (with an acute acceleration in the post-war era). Consequently, the only way to ensure a relatively impartial, apolitical judiciary is to roll back the size and scope of the state.
The Judiciary in Political Theory
The state’s power of adjudication receives relatively little attention in everyday political discourse. Nearly all of the headlines are attracted by what the executive and the legislative spheres of the state – Presidents, Prime Ministers, parliaments, and so on – are up to rather than the wigged magistrates presiding over dark, dusty courtrooms.
One reason for this is that the non-judicial state institutions have a greater scope to act unilaterally. The government can announce initiatives and Parliament can enact laws without the need for any outside stimulus. The courts, on the other hand, are in the position of having to wait for a case to come before them, i.e. for people to find themselves in an active conflict with other people. The direct outcome of such a case may impact upon only a handful of participants and, even if the principles under scrutiny are far reaching, the judges may rule only on a single specific point at any one time. Moreover, the prevalence of democracy focuses discussion of your political rights on your ability to vote in elections which, in most cases, is not the method of selection for the judiciary. Participation as a jury member is, to be sure, viewed as a civic duty also, but this may occur only a handful times during a person’s life, and direct involvement in a court case as one of the litigants is even less likely. Thus, the perception that the judiciary has a relatively diminished ability to touch everyone’s lives has lent them a degree of remoteness compared to other organs of the state. Read more
By Duncan Whitmore
The pervasive issue of human-induced climate change has been hotting up again lately. The recent birth of “Extinction Rebellion”, which pursues the strategy of civil disobedience and economic disruption in order to force governments to “act” on climate change, as well as the creation of a mascot in the form of teenage activist Greta Thunberg, has helped to drive the once fledgling issue back to the forefront of political attention. A “Global Climate Strike” held on September 20th saw children – many of whom have been terrified into the belief that their world is about incinerate – allowed to take the day off from school in order to participate (an unlikely occurrence had they wished to protest against, say, mass immigration). Although Britain has emerged from what has actually been a fairly standard summer in terms of temperature, a handful of record breaking days helped to push climate fear to a high of 85% of the UK population, according to a recent poll.
Fortunately, the latest antics of “Extinction Rebellion” – which have included targeting ordinary East London commuters on their way to work – betray one of the reasons why Murray Rothbard split from his alliance with the left in the early 1970s: that you don’t win any support by attacking, with violent disruption, the very people whose hearts and minds you are trying to convert.1 The fact that these incidents targeted the London Underground and Docklands Light Railway only added to their irredeemable stupidity given that most people accept electrified public transport as a sufficiently green alternative to cars. Nevertheless, the issue itself is a lingering one and government policies committed to tackling climate change remain prominent. Read more
“A Judicial Jamboree” – Boris and the Supreme Court
By Duncan Whitmore
Last week’s judgment of the Supreme Court (“Miller/Cherry”1) that Boris Johnson’s prorogation of Parliament was unlawful has been greeted as a “triumph” of democracy on the Remain side but, conversely, as an unwarranted judicial wading into politics on the Leave side – together with calls for the scrutiny of judicial appointments akin to what is seen with the US Supreme Court.
It will be argued here that, while undoubtedly significant, the court’s judgment to review the government’s decision for prorogation (and its disagreement with that decision) was not the most extraordinary aspect of the case. As we shall go on see in detail, the case is really an outcome of a continuing, decades-long attempt to squeeze historic, pre-democratic elements of Britain’s constitution into a democratic straitjacket.
What is astounding, on the other hand, is that the robustness and confidence of the decision represents a continuation of the same theme we identified in a previous essay on Brexit and the British Constitution – that the pro-Remain establishment, instead of simply cutting its losses and swallowing Brexit, is blind to the fact that its efforts to thwart the referendum result is jeopardising everything that legitimises (in the eye of the public) the sustenance of the British state. As Sean Gabb has said in his own post on the matter, “all that surprises me is that the Remainers are so committed to stopping Brexit that there is no part of the Constitution they are not prepared to feed into their political shredding machine.” Surely they must have realised the Supreme Court’s decision, delivered without a single dissenting voice among eleven justices in spite of convincing counterarguments, would brazenly and wantonly take a sledge hammer to yet another veneer of legitimacy over the state system that keeps them in power – the notion of an independent and apolitical judiciary? Read more
Brexit and the British State
By Duncan Whitmore
Following the drama of the past two weeks which culminated in the embarrassing behaviour of opposition MPs blocking the Speaker’s chair in the moments of Parliament’s prorogation (pictured above), we can hope for some dying down of the recent hysteria now that they have been royally booted out for a month. At least, that is, until October 19th, when Boris Johnson must either pull a new Brexit deal with the EU out of his hat or ask for an extension to the October 31st deadline.
In the meantime, we can enjoy the comedy value of the Labour Party trying to square the circle with its Brexit policy. Trapped between a rock and a hard place by its support coming from both working class Leave voters on the one hand and middle class, liberal Remainers on the other, their aspiration is to negotiate a new deal with Brussels in order to show their Leave credentials. But they will then call a second referendum in which they will campaign against their own deal in favour of Remain. Such absurdity has driven even Remain-biased journalists to barely concealed sniggering. On Wednesday of this week, deputy leader Tom Watson chimed in by suggesting that Labour should campaign for a second referendum ahead of voting for an Autumn general election (the conditions for which Labour has already shifted several times since they backed the Brexit delay bill last week). Given that Labour is the official opposition and, by far, the second largest party in Parliament, whatever it chooses to do is likely to carry more weight than whatever the likes of Little Bo-Swinson and the disproportionately mega-mouthed Ian Blackford have to offer. So, amidst the hyperbolic outrage at the Scottish Court of Session’s finding that the prorogation of Parliament was “unlawful” (strange how there were no screaming headlines when the first instance judges drew the opposite conclusion) as well as at the release of the worst case scenario no-deal planning documents this will probably be the only thing to keep much of an eye on for now. Read more
Boris and Brexit
By Duncan Whitmore
At the time of writing, a bill to delay Britain’s exit from the European Union beyond the October 31st deadline is making its way through the House of Lords, following Prime Minister Boris Johnson’s loss of all of his votes thus far in the Commons. Johnson has also lost his Commons majority after one MP defected to the Liberal Democrats on Tuesday while a further twenty-one were denied the Tory whip for voting against the government that same evening. It is, therefore, probable that the bill will be passed and, without the ability to call a general election, somebody will be carted off to the EU to grovel for a Brexit extension until January 31st.
Nevertheless, in contrast to the Maybot (whose repeated defeats ground her down into the appearance of an exhumed corpse), Johnson remains remarkably upbeat. If his chief strategist, Dominic Cummings, is as brilliant as he is reputed to be, then this may be no surprise. After all, every major obstacle to achieving Brexit, “do or die”, on October 31st was known in advance, namely:
- An overwhelmingly pro-Remain Parliament which could be expected to use the excuse of an alleged no deal “catastrophe” to tie the Prime Minister’s negotiating hands;
- The existence of a significant number of rebellious Tory MPs amongst a Parliamentary majority of just one;
- A Speaker barely able to feign impartiality through a willingness to bend constitutional propriety and parliamentary procedure.
LGBTs, Leftists and Libertarians
By Duncan Whitmore
In a previous essay posted on this blog, the present writer explored the poisonous proliferation of identity politics in today’s political discourse. One of the themes of that essay was that identity politics has served to create false group identities which misrepresent the interests of the individuals who are supposed to make up those groups, solely for the purpose of being able to pit each group against other groups for political gain. The actual interests of the individuals within each group are served poorly, if at all.
Continuing on a similar theme, we will, in the present essay, examine how various minority groups that have been championed by the left – many of which, such as those characterised by race, religion or sexual orientation, have won genuine and much needed victories against prior legal repression – are being exploited by the left in the current culture war. Although libertarians are right to welcome a renaissance of traditional, local, cultural and religious values as bulwarks against the metastasising growth of the state, it is not minority groups (or the vindication of their rights) per se which are a threat to traditional cultures; rather, the genuine threat is the attempt by straight, white, middle class virtue signalling liberals to grant legal privileges to these groups in an attempt to attack and weaken what remains of Western civilisation. Far from having their own, long term interests preserved by allying themselves with the left, these minorities may well be leading themselves over a cliff edge if they are swept up in the backlash against leftism that is manifest in the resurgence of populism, nationalism, traditionalism and anti-globalism. Consequently, we shall why it is libertarianism that can allow minority groups to flourish, and why members of minority groups should become libertarians. Read more
Globalisation – the Baby and the Bathwater
By Duncan Whitmore
If the liberal-left was hoping that the recent state visit to the UK by Donald Trump would provide the perfect opportunity to (once again) castigate him for his supposed “racism”, “misogyny”, and a fervour for “nationalism” that apparently puts him on par with Hitler, they have probably been left disappointed. In fact, the visit seems to have come off rather well for the 45th President. Sadiq Khan, London’s leftist mayor, succeeded only in burying himself in a Twitter spat that began before Air Force One even touched down on the tarmac. The anti-Trump protests in Parliament Square – at which, for want of imagination, the Trump “baby blimp” was re-deployed (and subsequently burst by a Trump sympathiser) – failed to attract the anticipated attendance. Instead, news reports of Trump being received warmly by the Queen, behaving graciously and courteously at the state banquet, and delivering a positive and optimistic joint press conference with the Prime Minister about the future of the US-UK relationship, have most likely lent him an air of statesmanship that he has previously lacked. Even the BBC was forced to concede that the trip has, somehow, “normalised” Trump, and that, rather than banishing the orange-faced “fascist” from our shores forever, we should probably recognise that he is “here to say and [so we] had better get used to him”. Read more