Miller and the media: Supreme Court judgement generates more measured response

img_4218In this post Ailsa McNeil presents the findings of an analysis of newspaper coverage of the High Court and Supreme Court rulings in the Article 50 case. It shows that whilst the High Court judges faced an onslaught of criticism from Brexit-supporting newspapers the reaction to the Supreme Court judgement was more measured. Two factors can explain this: the fact the prospect of parliament delaying the triggering of Article 50 appeared remote by the time the Supreme Court delivered their verdict and the widespread condemnation of some of the coverage of the High Court judgement.

The reaction from some newspapers to November’s High Court ruling provoked almost as much controversy as the decision itself. The judges, branded ‘Enemies of the people’ (Daily Mail, 4 Nov 2016), faced an onslaught of criticism, which knew no bounds. The attacks were personal, vicious and an affront to the rule of law. Although the coverage of the Supreme Court decision was less hostile, some newspapers continued to admonish the judiciary.

We analysed the editorials published on the day following the decisions, 4 November 2016 and 25 January 2017 respectively, in five broadsheets (The Guardian, The Independent, The Financial Times, The Daily Telegraph and The Times) and five tabloids (The Daily Mail, The Daily Mirror, The Sun, The Daily Star and The Daily Express). Where the publication lacked an opinion piece, we used the closest equivalent, usually written by the political editor.

For each, we considered several questions: whether the article was critical or supportive of the judgement; whether it condemned the judges, or if the commentary was likely to decrease trust in the judiciary. Finally, we asked if the editorial breached the Attorney General’s guidelines for contempt of court.

Of the editorials that were critical of the High Court ruling, two published articles that spoke about the judges in terms that we considered would decrease a readers trust in the judiciary. The Daily Mail was quick to question the independence of the ‘unelected’ High Court judges. The article made several statements which suggested the decision was not made impartially. This tone was echoed in the Daily Express. Explicit criticism of the courts, with judges being criticised as out of touch, or too lenient in their sentencing, is not unusual. However, the severity of the criticism this time was unprecedented, as was the outrage that the media coverage generated amongst defenders of judicial independence and the rule of law.

Continue reading

Judges keep out: off-the-bench influence on the UK’s anti-terror regime

anisa-kassamali

The UK’s anti-terror regime has evolved rapidly over the past 15 years with the Investigatory Powers Bill the latest landmark. Much has been written about how the judiciary’s court decisions have influenced the anti-terror regime, but less attention has been paid to judges’ potential influence beyond their decisions in court. In a new report Anisa Kassamali examines off-the-bench judicial influence on the UK’s anti-terror regime, concluding that fears of judicial over-reach are unfounded. The report’s findings are summarised here.

anisa-report-coverTheresa May first published the Draft Investigatory Powers Bill as Home Secretary in November 2015, citing concerns around terrorism as one of its key drivers. State surveillance is a major feature of the UK’s anti-terror activities, and amongst other changes, the bill reconstructs the framework for the oversight of this system. As the bill now begins its report stage in the House of Lords, it is therefore apt to consider the role of the different branches of the state in tackling terrorism.

The Constitution Unit’s latest report focuses on the role of the judiciary. It is entitled Judges Keep Out: Off-the-bench Influence on the UK’s Anti-terror Regime and examines the state’s approach to terrorist threats from a constitutional angle. Have judges been overstepping their constitutional boundaries?

This question has previously been addressed only in relation to the judiciary’s court decisions. Kate Malleson is one of a number who argue that whilst ‘judges are not politicians in wigs’, the advent of procedures such as judicial review means that they ‘are increasingly required to reach decisions … which cannot be resolved without reference to policy questions’.

There has been much less focus on the judiciary’s activities outside of the courtroom – this report is the first systematic review of judicial impact on the UK’s anti-terrorism policies off-the-bench. Its findings are less controversial – it concludes that fears of judicial overreach, at least in this arena, are unfounded. It examines the question from two distinct angles – the impact of extra-judicial comments on anti-terrorism policies, and judicial involvement in the administration of the anti-terror regime.

Continue reading

Human rights, the judiciary and the constitution: Past and future challenges

juliet-wells-photo

At the Constitution Unit’s 20th anniversary conference Dawn Oliver, Stephen Sedley and Richard Cornes assessed the Unit’s contribution to debates around human rights and the judges in the UK, and how it can feed into the challenges that lie ahead. Juliet Wells offers an overview of the session.

This is the second of a series of posts based on presentations at the Unit’s 20th anniversary conference, held on 23 June 2015.

Professor Dawn Oliver took the lead in the session reflecting on the Unit’s wide-ranging contribution to political and legal discourses on human rights and the judiciary, while the respondents were Sir Stephen Sedley and Richard Cornes (who was unfortunately unable to attend on the day, but sent a statement read by the session chair James Melton). The panel therefore reflected rich expertise across public law and offered a thoroughly engaging range of perspectives on the Unit’s impact, and on the possible future direction of these vitally important areas.

Human rights figured particularly prominently in the discussion, and much was coloured by the existential threat now posed to the Human Rights Act 1998. Looking back, Dawn Oliver emphasised the prescience of Nicole Smith’s 1996 report, Human Rights Legislation, in anticipating not only that the Human Rights Act would need a ‘champion’ in future years if it was to survive in the long-term, but also that the legal implications of repealing the Act and replacing it with a ‘home-grown’ bill of rights would be profoundly complicated by the effects of having incorporated the European Convention on Human Rights into domestic law. In particular, it was identified that the long-term consequences of the relationship between Strasbourg and the domestic courts that the Act set up would generate real controversy, even as it would affirm and entrench the importance of Strasbourg jurisprudence in cases before the UK courts. Looking forward, she reflected on the possible consequences of repeal, as well as on the causes of the apparent ‘tidal wave’ of hostility towards the Act. In considering both of these issues, she suggested that a lack of respect for the rule of law, manifested most conspicuously in the shift towards the view that the courts should not be accorded any responsibility for the UK’s compliance with its international treaty obligations, was at work. This, she thought, could be traced back to the 9/11 attacks, which did much to ‘shake people into hostility’ towards the Human Rights Act. Richard Cornes built upon this by suggesting that enacting a British Bill of Rights, which would in many ways be essentially similar to the Human Rights Act, will serve only to refocus the attention of rights-sceptics onto the UK courts, and thus to intensify claims that judges are ‘self-aggrandising’.

Continue reading