What is so extraordinary about the public response to Miller?

Remember Catgate? When Theresa May blamed a local court for blocking the deportation of a Bolivian citizen over his pet cat?  Remember the rabble that rose despite the then Minister of Justice, Kenneth Clarke, correcting the misrepresentation? The story told us a lot about how much respect the right of the Tory party have for the rule of law, how they twist judgments to further their own political agenda, and it told us a lot about how much respect our Prime Minister has for judges.   It taught us about the right wing press too. Despite widespread criticism of May’s mendacious attack on the judgment, the Daily Mail continued to defend her view that the cat saved the day. 

Why wouldn’t it?  The tabloid press, and the Daily Telegraph, had been peddling their own twisted account of human rights cases with determination since the Human Rights Act came into force, casting the rights of prisoners and immigrants as a reason to junk Europe altogether. Catgate was, though, a rare moment in British politics. Rare not because a senior member of our government had publicly rejected the legitimacy of a judicial decision, but rather because someone senior in the same government finally had the courage to stand up and correct it.  Rare, because attacks on judicial attempts to stand up for human rights are ubiquitous on the right of British political discourse.  These attacks are a political strategy and an expression of a particular ideology. They are not occasional incidents in an otherwise stable constitutional settlement.

The examples are numerous, but I will name a few. Remember the drawn out legal battle between Abu Qatada and Theresa May? Remember the fury that rained upon the European Court of Human Rights, even though it was the Court of Appeal that ultimately made the decision to block Qatada’s deportation? Theresa May stood up in Parliament during and after the debacle and attacked the decisions using them as a basis to rubbish the European Court of Human Rights ‘interpretation of human rights’, for repealing the Human Rights Act and for introducing new legislation to undermine the appeal rights of those facing deportation or extradition. She was led by the tabloid press on this for years. 

This was not the first time May had used a decision that went against her to support her opposition to the Human Rights Act and membership of the European Convention on Human Rights.  Prior to this, she had declared herself and the government ‘disappointed and appalled’ by a Supreme Court decision that granted review rights to persons placed on the sex offender’s register.  The decision was used as a basis for introducing a British Bill of Rights, and was clearly an attack on the use of Convention rights by the highest Court in England and Wales. May was here only following what the Daily Mail had already set in place in its response to the judgment. Given all this, it is small wonder that May turned her attack on ‘left wing lawyers’ at the recent Tory party conference.  She was speaking out what she had been thinking for years, now with permission to junk political correctness, and her party supporters (fed on a diet of tabloid law reports) loved her for it. 

But May is by no means the only one who has attacked rights regarding judgments while seeking to consolidate political power.  She was following the lead of others. A sizeable proportion of Parliament rose up against the rule of law over prisoner voting. The Hirst decision handed down in 2005 has never been implemented into English law. Why? Because, at first a Labour government under threat decided to bury the decision before an election, rightly fearing what political support for this European human rights decision would evoke in the tabloid press. Then, the thought of giving prisoners the right to vote made David Cameron sick to do so.  In defiance of the UK’s clear treaty obligations, a sizeable majority of Parliament felt the same as Cameron. They said so in a lengthy debate, held 6 years after the initial decision and led by a cross party alliance of David Davis and Jack Straw.   The mantra was ‘if you break the law you can’t make the law’, and Parliamentarians used it to great effect to stand up proud against the European Court of Human Rights and to reject its decision. The rule of law was mentioned by the Attorney General, Dominic Grieve, in that debate. He told them that the UK government was bound by its international obligations, and even suggested that the Government would be behaving ‘tyranically’ in not following a judicial decision against the Crown. His measured plea didn’t move Parliament much, who proudly rejected the legitimacy of the decision, and have done so since, much to the Daily Mail’s approval.

The short point is this. The reaction to Miller is extraordinary in one sense.  Not because politicians and the right wing press are attacking the judiciary.  No not at all.  It is extraordinary because so many across the establishment, across the political elite, and across society as a whole, are standing up for the rule of law, and vehemently criticizing the tabloid’s populist account of the judiciary as ‘enemies of the people’.  The protests may have come too late however.  They come after years and years of assault on judgments, and a mute public and political response to those assaults.  They come after years and years of politicians and media failing to engage honestly and decently with the substance of judicial decisions.  Instead of respectful disagreement, critical popular opposition has been voiced in manipulative representations of judicial reasoning, and commonly a wholesale rejection of the legitimacy of judges to make decisions like this in the first place (either because they are ‘foreign judges’ or because they are local judges adjudicating on ‘foreign rights’). But this time, the public mood has changed. Now a considerable cross section of the nation is appalled at the right wing press, and politicians, at doing what they have been doing for well over a decade. Because this time the assaults affect the rights of so many of us, and so many of our rights are under threat. This time the sovereignty of Parliament is at stake. This time, the judges and the issues are British and not European. This time, the rights holders aren’t criminals, terrorist suspects, sex offenders or immigrants.  This time, the rule of law has protected us.  This time, we stand up the rule of law.