Historically, the interaction between the judiciary and the body politic has always been sensitive, and occasionally volatile, territory. The recent vilification of three high court judges in the UK, by certain elements of the British media and political establishment, following the ruling against the government in the case on article 50 of the EU Treaty, is both disturbing and objectionable .
An independent, impartial judiciary is fundamental to a working democracy and the rule of law. Any attack on a judge for performing their fundamental role in that democracy, is an attack on the rule of law and on democracy itself and should be condemned.
In their judgment, the judges made it very clear that the case was not about the merits of leaving the EU, but rather about the ability – or lack thereof – of the prime minister to unilaterally trigger article 50 to start the exit process. Central to that determination was the question as to whether the article 50 trigger was irrevocable. The matter will now proceed to an appeal before the UK supreme court on December 5th. The sinister approach of some media outlets has continued with assessments of the background of the 11 supreme court judges.
Ignorance
As in Ireland, judges in the UK do not make law. Rather, it is their job to interpret and implement legislation enacted by parliament. Where elements of the media personally and viciously castigate them for doing this, this combines ignorance with incitement to hatred.
The role of the media in a healthy democracy is critical; indeed it has a duty to hold others to account. However, the media plays a central role in moulding the opinion of society and it can significantly influence the view through which people perceive events. Therefore, where they wilfully or wrongly mislead the public – particularly on issues as sensitive and potentially volatile as this – they should be called out.
Irish judges are not immune from this kind of treatment. Some politicians have abused their privilege to criticise individual judges in circumstances where they know that the judiciary is constrained from responding. Other politicians resort to lazy statements of fact about the judiciary as a whole, whether by reference to the manner of appointment or their interests.
Criticism
One Minister has recently been caught making statements about the judiciary that have no basis in fact. The lord chancellor in the UK has come in for trenchant criticism for not strongly supporting judicial independence. When the Irish Minister was challenged about statements he made that were wrong, he didn’t seem too bothered. This is a problem.
The type of democracy and independent judiciary that is enjoyed in Ireland (and in Britain) is the envy of other countries and should not be taken for granted. The unjustified denigration of the judiciary in some corners of the media is to be condemned.
We all have a collective responsibility to protect the values of democracy and our institutions, or else face the real possibility of a destructive and dystopian society.
Paul McGarry SC is chairman of the council of the Bar of Ireland