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The Spectator's Notes

Does any Supreme Court judge represent the 17.4 million Brexit voters?

And: Nigel Farage; independent inquiries; Hillsborough; red states

26 November 2016

9:00 AM

26 November 2016

9:00 AM

It is not self-evidently ridiculous that Nigel Farage should be the next British ambassador to the United States. The wishes of the president-elect should not automatically be discounted. John F. Kennedy’s wish that his friend David Ormsby-Gore (Lord Harlech) should be ambassador was granted. It is also not true that the post must be filled by a professional, or that the Prime Minister should not appoint a political rival to the post. Churchill gave the job to his main rival, Lord Halifax, from 1940. Certainly Mr Farage is not the conventional idea of a diplomat, but then Mr Trump is not the conventional idea of a president. Although its own leadership emerged from the same global convulsions, our government is slow to grab the advantages offered by this new world.

As the Supreme Court hearing on Article 50 approaches, scarcely a week goes by without one of its judges making a speech. First it was Lady Hale, suddenly injecting, from Malaysia and in advance of the court hearing, the new idea that Parliament might need a ‘comprehensive replacement’ for the European Communities Act 1972 straightaway, instead of a simple bill to trigger Article 50 negotiations. This week, it was Lord Neuberger, the President of the Supreme Court, whose Bar Council Lecture reviewed the workings of his court. On 1 December, it would have been Lord Mance, lecturing at Lincoln’s Inn in a series of ‘Euro Law Events’, but I see he has belatedly had the wit to pull out. Is it wise for there to be so much judicial chatter? The judges give their Opinions in court. Mightn’t their opinions, in the vernacular, compromise these? As Lady Neuberger’s anti-Brexit tweets blatantly showed, there is a casualness about the utterances of the judges and their relations. This cannot survive an era in which the court has entered politics.

In his Bar Council Lecture, Lord Neuberger boasted that the Supreme Court ‘does what it says on the tin’. But what do the words on the ‘Supreme Court’ tin mean? The word ‘Supreme’ refers to the court’s relationship to our other courts (though so long as we stay in the EU, the European Court of Justice is supreme over us). It does not mean the court is supreme over Parliament. So if it tells Parliament what its correct procedures should be, it needs to proceed with a caution it has not so far shown. Lord Neuberger said in his lecture that he could find nothing important wrong with the Supreme Court, except its ‘marked lack of diversity’. He meant diversity only in its modern, official sense — more women, ethnic minorities, state-school pupils. He did not mean diversity of opinion. If a court is to decide political matters in this country (a disastrous idea, but naturally consequent, as Lord Neuberger admitted, on the Human Rights Act of 1998 and the creation of the Supreme Court in 2009), then people will seek the ‘transparency’ of which, in other fields, the court so proudly boasts. Is there diversity among the 11 Supreme Court judges about Britain’s EU membership, or are there at least 17.4 million people whose views are unrepresented among them?


It would be good to know. That is how it works in America, and how it must work here if we continue down this mistaken route. Otherwise, we have to resort to rumour and reading between the lines. I recently heard, for example, of an encounter with Lord Neuberger at a reception just before the High Court reached its decision on Article 50 earlier this month. There his interlocutor understood him to say that the High Court would be right to find against the government and that he would support it if it did. I cannot, of course, tell whether this report was accurate — it might not be, because legal niceties are often hard for lay people to understand. But why was Lord Neuberger talking to anyone at a party about a matter of such extreme sensitivity? As Mrs May says, ‘This is not a game.’

‘Independent’ is becoming an excuse-word in government. The inquiry into historical child abuse is called the Independent Inquiry into Child Sexual Abuse (IICSA). This lets the government wash its hands of it. Although Theresa May set it up, with its hopeless remit, she keeps it at a distance now. So does her Home Office successor, Amber Rudd. In the Commons debate on the IICSA’s latest travails this week, the government fielded only a very junior minister, Sarah Newton. She, too, hid behind the point that the inquiry is independent. Of course the government should not be running it. But if no chairman — the fourth one is now being undermined — and no senior lawyers can stay the course, don’t its inventors have to try something else?

An independence problem afflicts the aftermath of the Hillsborough inquiry. I have just read a new book by Norman Bettison, Hillsborough Untold. Sir Norman, who much later became chief constable of Merseyside, was at Hillsborough, but only off-duty, as a football fan. He was later accused, notably by the Labour MP Maria Eagle, exploiting parliamentary privilege, of orchestrating black propaganda for the police against the Hillsborough fans. He denies this. I have no idea of the truth, but Sir Norman’s point is that nor does any public authority. Trevor Hicks of the Family Support Group said that Bettison should ‘scurry up a drainpipe’ and refused to meet him. For four years now, the Independent Police Complaints Commission has been investigating the South Yorkshire Police for alleged criminal conspiracy. It has never asked Sir Norman about the key allegation against him made by one John Barry which was used, by Ms Eagle and many others, to ruin him. Hence his book.

A piece in the Globalist by Jean-François Boittin reveals the key to those who backed Trump. It compares the red states with the chart of obesity in the United States and finds that all the states where more than 30 per cent of the adult population are obese went for Trump. He lives off the fat of the land.


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