Don't Judge...

Kwasi Kwarteng (or Quasi Kwarteng as Ian Blackford prefers to call him) is today responding to accusations of ‘Trumpian behaviour’ after his appearance on the newly revamped Andrew Neil Show last night  The allegations surfaced when, despite taking care to back the judges himself, he pointed out that:  "Many Leave voters up and down the country are beginning to question the impartiality of the judges. They’re saying, ‘why are they getting involved in politics?'" And even though many leavers up and down the country are saying precisely this, he was accused of disingenuously using leave voters to hide his own criticism of the court’s decision.

It came after courts in Scotland ruled that the recent prorogation of parliament was ‘unlawful’.  In a clear departure from the Gina Miller case in a London court last week, the Scottish judges said the decision to prorogue was indeed ‘justiciable’. They concluded that Boris Johnson’s advice to the Queen had been ‘unlawful’ and that consequently the prorogation itself was ‘null and of no effect’. Parliament, against all the odds, could yet be recalled and perhaps John Bercow’s farewell tributes – cut cruelly short after a paltry 90 minutes - could rightfully resume.

Much though there is to loathe about the outgoing Speaker of the House, his theatre will be greatly missed. Who can forget, over the last 18 months,  the frequent bellows of  ‘Division!’ after countless crucial late-night Brexit votes?  Division, indeed. Our country is split down the middle. Our parliament is split down the middle. Our families, we are constantly told, have been split down the middle. (Although a family that fissures over Brexit is surely a family with other issues beside). And now, it seems, even our courts are split, North v South.

If you voted leave, you’re furious that Brexit has not yet been delivered after 3 and a half years. If you voted remain, you’re furious that not everyone else voted the way you did. If you voted leave, you think we’re going to thrive once the EU 'shackles' have been cast off. If you voted remain, you think (perhaps not without justification given the Yellow Hammer release) that we’re going to hell in a handcart. .But no matter what side you are on, you're sure to have an opinion. I have yet to meet anyone in Britain who does not feel strongly either way.

And much has been made of the effect this strength of feeling has had on our political journalists. Hitherto, our media, by and large, had managed to hide individual leanings, if not necessarily editorial bent. But now, there’s barely a journalist in the land who you couldn’t, with some certainty, guess how they voted in the 2016 referendum. A few exceptions exist, of course. The scrupulous Andrew Neil, whose excellent questioning led to Kwarteng's 'Trumpian' slip, national treasure Kay Burley, who didn’t vote at all and James O’Brien, who has remained resolutely tight-lipped on the subject, making it hard to call his Brexit stance, one way or the other. But for the most part, journalists’ colours have been nailed firmly to respective masts.

This is not overly to criticize our print and television journalists. Yes, they should strive to be impartial – and on most issues they do. But Brexit, for many, it seems, like Boris Johnson's plans to link Ireland and Scotland, is a bridge too far. And perhaps this is unsurprising. It’s not an issue from which one can easily untangle oneself. If they voted remain – and many of them did – they, like many of the remain voters in the country, fear Brexit. And if you fear, something, it’s often hard to hide it. If they voted leave - and a couple of them did - they, like many leave voters in the country, despise a Parliament they see as determined to stymie Brexit. And if you despise something, it’s often hard to hide it.

And so, to our venerable judges. The decision at yesterday’s Court of Sessions in Scotland was met with glee by one half of the country and dismay and fury by the other. 52% of the country raised collective eyebrows at yet another establishment blow. 48% of the country, attempting to hide raised eyebrows, moved swiftly to declare that judges must be respected. Not so much the judges from last week, but definitely those from this. And it was from this 48% that Kwasi got his comeuppance. Perpetually offended Afua Hirsch called him out, on twitter: “Shame on @KwasiKwarteng. Confirmation we have a government that has zero respect for the separation of powers, the rule of law, or the proper functioning democracy.” There was no mention in Afua’s tweet of how much she respected the judges from the Gina Miller case only a few days earlier.

But how, then, have the judges remained impervious to Brexit? They have risen above politics where you and I have not. They have remained neutral where many in the media have not. On an issue that for three years has been all-consuming for the rest of us, they have remained calm and disinterested. And woe betide you if you suggest that any of the three judges in the Scottish Court of Session yesterday may have had a pre-existing opinion on Brexit. Judges, cry Remain, are immune from the pressures of politics. We mustn’t question their decisions or their impartiality. Well, not this week, in any case.

But this is the problem with taking the political into the realm of the judicial. Despite the Remainer outrage at anyone who dared question yesterday’s decision, even a cursory glance at the judges’ final declaration shows it to be patently political. They decided that the purpose of prorogation was for the government to ‘avoid scrutiny’. This is a court judging on political motive. To do so, is, by very nature, to become political. And where does it stop? Can every political decision taken by a government be taken to a court and overturned? Surely, whether you voted remain or leave, we must agree that political motivation should not be decided on in a court of law.

Kwasi last night acted responsibly – he stuck to a line that doubtless he didn’t believe. He was firm – he said he had full trust in our judges. But he was also right to say that many people disagree. Because it is true. And to accuse him of being Trumpian for doing so is a low blow. But the gloves in this fight came off a long time ago. May, of course, didn’t notice that they had. But Boris Johnson and his team, none of them wearing gloves in the first place, are fighting back. Leavers have had a tough few months. They’ve had to watch in embarrassment at the final days of May. They’ve had to watch in fury as a remain parliament passed  the Benn Bill - the most duplicitous Bill, they argue, since the 42nd President of the United States denied sexual relations with an intern. And to top it off, they’ve had to watch in astonishment as the most arrogant man in the House brought forward a Humble Address. Yesterday’s court decision was almost the final straw. And Kwarteng was within his rights to point out that many leavers are losing faith in the ‘establishment’.

If there’s any justice, the Supreme Court will overturn yesterday’s decision and confirm that politics and law should - no, must - remain separate. If they don’t, our democracy takes yet another hit. If it is to survive, it can’t take many more.