On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:
The retirement was to be on 10 January 2020.
This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.
Lady Hale’s retirement by 31 January 2020 was thereby inevitable.
There was nothing she – or anyone else – could do about it.
This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.
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Yesterday the now departing Prime Minister Boris Johnson said in the House of Commons:
“With iron determination we saw off Brenda Hale and we got Brexit done.”
But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).
So what did he mean?
In terms of practical litigation, the statement also makes no sense.
The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.
Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.
So presumably he does not mean that, either.
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What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.
The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.
But the more ardent supporters of Brexit did not – and still do not – see it that way.
And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.
If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.
Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.
If so, these interpretations would accord with something else the Prime Minister said yesterday:
“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”
Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.
Perhaps him using that terms is an indication of the deep state we are actually in.
If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.
This is not a healthy frame of mind.
And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.
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Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.
The worst thing of all is Johnson’s apparent belief that it would be something to crow about if he had indeed been responsible for Lady Hale’s stepping down.
— Brendan Donnelly (@Brendandonn) July 18, 2022
Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.
As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.
Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.
And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.
Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.
But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.
For, if anything, that is what needs to be “seen off”.
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This nonsense by Johnson is a classic case of him practising Moises Naim’s 3 Ps Polarization Populism and Post Truth. -His book is well worth the read https://www.washingtonpost.com/outlook/2022/04/22/why-world-has-been-made-safe-autocracy/
I’m sure you’re correct in your understanding of what Johnson meant by his comment. It is shorthand for: I got Brexit done by circumnavigating the legal obstacles. Not by being right, but by negativing the consequences of being wrong.
It accords with things said to me privately. It also speaks to the approach of the architects of Brexit between 2017-19, which was that, no matter what, the law won’t stop us. It translates as: we’ll get our way, right or wrong. Or better still: we are entitled to impose our wishes on the country irrespective of the law and of what its people want. Eton and Harrow prevail.
When thinking about “the architects of Brexit” I think it might be worth acknowledging that this wasn’t so much a hard-core group with a central theme as it was an unholy alliance.
I postulate that one of the motives that prompted Cameron to add the Brexit Referendum to the Conservative Party Manifesto ahead of the 2015 General Election was the growing insurgency of UKIP. He is/was many things, but one attribute of which Nigel Farage appears to be unashamedly proud is his ability to annoy others.
Cameron was watching UKIP eat in to traditional Tory heartlands; the 2010 election had resulted in a hung parliament and Cameron was leading a power-sharing deal with Nick Clegg of the Liberal Democrats. With the Kippers attacking him from one flank, the Lib Dems from the other and Labour from the front, Cameron was desperate to appease the Kippers and wrest an outright majority from Clegg and the Lib Dems. In other words, it’s worth putting the Referendum vote into that very narrow “attempt to get out of hot water that spectacularly backfired” and not part of a well-thought-through or strategic direction taken by the Tories.
The next dimension concerns the nature of the changing relationship between Brussels and the parliaments of member states. Irrespective of the way we individually view the EU, it is undeniable that the production of EU legislation and the requirement for member states to follow it meant that there was tension in Westminster, with agitation from Eurosceptic MPs who saw the down-sides before the benefits.
Next you have to consider that after making one foolish decision, Cameron came back with a second with his “Well, stuff you lot, then…” resignation – abandoning the government just as it was plunged in to the self-inflicted crisis.
So yes, I am sure as you say that there were “architects” involved – MPs and others who worked behind the scenes to bring about the outcome they desired, I think that to use that term risks awarding them far too much credit. They were a bunch of misfits and half-wits, leaning forward from the back benches to grab the steering wheel of government and yank it hither and yon as though it were nothing more than their latest plaything.
As others have said, MPs today are arrogant, capricious, selfish narcissists.
The fact that Johnson chooses to borrow the term “deep state”, used most recently by Donald Trump as part of his mechanism of creating a straw-man “enemy” to point “the people” at, is indicative of just how narcissistic and dangerous he has become.
You say: It is shorthand for: I got Brexit done by circumnavigating the legal obstacles.
I disagree. I think it is shorthand for: In my battle with the Supreme Court over the legality of my decision to prorogue Parliament, I was the winner! Don’t bother reading the law reports, don’t read what Lady Hale said, because all you and the public need to know is that at the end of the day Lady Hale lost and I won. And if I say it, then the British press and the British public will henceforth remember it as fact. And I will always be remembered as the PM who got Brexit done, even though I did the easy part leaving the hard part for others to sort out.
Good stuff. We need more Brenda Hales and fewer Boris Johnsons.
It is heartbreaking to see the distinguished Brenda Hale trailed in the gutter by that cartoon character.
Shades of Trump indeed, “to hell with the UK- it’s in my way”.
Until the petulance of the hard Brexit core is disolved, there can be way forward. They know they jammied a win, slipping between the cracks and now grimly hang on as their raison d’être, even when the Remainers have conceded and the EU would not now have us back in any case.
So what do they fear- having to show their way forward? If Brexit was a deep outside-the-state plot by economic libertarians, then they may now have run out of road. The electorate sees that the state has been cut to the bone and the next stages per Kemi & Liz involve amputation. A hard sell to a skint electorate as Charlie Koch has found out before on his home turf.
https://en.wikipedia.org/wiki/Political_activities_of_the_Koch_brothers
Would have thought there is an opportunity here for an opposition with an over-ready plan……
Very well said : BEWARE : The Koch Brothers : Complete lunatics – rejected in the USA but not yet in the U.K. BEWARE !
Johnson is just writing his memoires including the exciting incidents that did not happen.
With an 80 seat majority in Parliament, he ruled everything in the UK that was legal and he also had the power to pick what was made legal and illegal-providing his grateful MPs continued to vote with their leader. Johnson cannot believe his personal habits and general approach to politics made the majority of the voters despise and mistrust him. The Tory MPs got their message and since their careers are involved did something about it. Does Johnson mean ‘the voters’ by the the ‘deep state’?
Of course his memoires now being gestated will blame: Remainers, Tory 5th columners and traitors, British Industry, the City of London, foreign powers undermining the state, the internet etc.
The book, being fiction, should sell well, everyone will need to check if they are named or praised or blamed, journalists alone will be a large market.
So true : It will be a work of fiction, off course…
I liked Angela Rayner’s reply, saying that
Boris Johnson’s speech was “as delusional as the Transport Secretary’s leadership bid but sadly not as brief”.
She adds: “The only ‘deep state’ relevant tonight is the one he has left this country in.”
Or, if Private Eye are to be believed, it might not have been the ‘deep state’ that did for Johnson’s premiership as it was a ‘deep throat’.
Ahem.
I noticed that when he said it and thought it seemed an unnecessarily spiteful remark – of the order of Trump saying judges – even ones he appointed – are corrupt because they don’t do what he wants.
You make a very interesting observation. For all his faults (surely they are legion), Boris Johnson is a little bit more difficult to quantify because, unlike Trump, he can avoid the temptation to “say the quiet part out loud” when he concentrates.
However, I’m not sure that in either case they act or speak out of spite in the ordinary sense. There is plenty of observational analysis from very distinguished and very highly regarded psychologists in the US (and in particular I’m thinking of Dr. Elizabeth Mika and Dr. Bandy Lee) that describe Trump as a “Malignant Narcissist”.
The narcissism element causes them to think of themselves as superior/centre of the universe/supremely important. We see conduct resembling that from both men, without doubt.
The malignant element is a bit less clear; used with narcissism, it describes what we could call a “let the world burn” syndrome – that flash of child-like petulance “If I can’t have it, then neither can anyone else!”
I think Trump clearly exhibits those behaviour patterns, so in his case what you or I might think as “spiteful behaviour” – that flash of “If I can’t have it…” anger… actually isn’t that at all. It is instead a manifest part of their personality. They don’t act out of spite – it is how they are.
For example, in his ghost-written book, “The Art of the Deal”, Trump discusses a negotiating tactic in which he says that when dealing with another party, for you to succeed and get a good deal, the other party needs to walk away thinking they got screwed over. He writes that if the other party *doesn’t* go away resenting the deal, you left more on the table that could have been in your pocket.
It’s amazing to look back at those comments in light of his conduct in office and the way that he didn’t so much salt or scorch the earth as, to borrow the phrase from “Aliens”, “nuke the site from orbit”…
So when Trump (and to a lesser extent Johnson) act in this manner, I think we should remember that this might not be spite, it might be “who they are”. That personality makes them much, much more dangerous than someone having a “spiteful moment”, because, of course, they are like this when they are throwing food at the wall, but they are also like this when they are smiling and shaking your hand.
And having a malignant narcissist being nice to you is going to be an extremely dangerous place for you to be…
But if either or both of them were sociopaths as well as narcissists………….
Lord Neuberger would be surprised about Miller I.
It may be that the term “deep state” derives from the phrase “deep time” referring to the discovery of the magnitude of the history of the earth.
More prosaically I have heard it used for the Civil Service, sometimes in the “Sir Humphrey” sense but sometimes just for the need to have a body that plans for the longer term. It was sometimes said that the long runway at Stansted was built for American bombers in the Second World War with a view to it providing an airport for London in due course so that the protests would never come to anything.
However, a quick look at transport planning in the capital and the abandoned projects that abound suggests that the deep state, sinister or not, is little more competent in carrying out its schemes than the shallow one.
Actually, “shallow state” seems an appropriate term for our current masters.
According to Wikipedia, the term ‘Deep State’ historically originates in Turkey: “The modern concept of a deep state is associated with Turkey, a presumed secret network of military officers and their civilian allies trying to preserve the secular order based on the ideas of Mustafa Kemal Atatürk from 1923”
The present usage of the term was popularised in the US by Donald Trump, to demonise the federal bureaucracy and other elements of the government. One of the early examples (possibly the first) would be when his ‘Muslim ban’ was suspended. It was used to attack and delegitimise people when they pushed back against Trump whenever he wanted to do something illegal.
The term is used by QAnon and other anti-government conspiracies and extremists. The fact that the PM is using this language is incredibly concerning, in the same way you’d be concerned if someone was using key phrases from Mien Kampf or the Turner Diaries.
Firstly, he was disrespectful in referring to her in this way, both in the use of terminology and his use of her name.
Secondly, he was being his customary self and lying.
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But his abuse of his power continues unabated today. Removing the Whip from one of his MPs – who was in Moldova meeting their President as part of his duties as Select Committee chair – is a raw, overt, act of spite.
I wish he were gone now, but let’s keep tabs on him while he’s still in No. 10.
Still one of the best interview of this disgrace of a man from Eddie Mair: https://www.theguardian.com/politics/video/2013/mar/24/boris-johnson-accused-nasty-video
His smirk is sickening. Why did he want to be Prime Minister? To continue smirking, cheating, lying? Is that how he had imagined a PM to be, without policy or integrity, merely playing a naughty school game?
In an attempt to answer your entirely reasonable question as to why Johnson wanted to be Prime Minister, I would be tempted to turn to two letters written by one of his teachers to Mr. Johnson’s Father, Mr Stanley Johnson. In the first, he wrote,
“Boris really has adopted a disgracefully cavalier attitude to his classical studies,” wrote Martin Hammond, who taught Mr Johnson classics at school and served as his housemaster. The letter was sent on 10 April 1982 to Stanley Johnson, the prime minister’s father.
“Boris sometimes seems affronted when criticised for what amounts to a gross failure of responsibility [and surprised at the same time that he was not appointed Captain of the School…],” Mr Hammond wrote.
“I think he honestly believes that it is churlish of us not to regard him as an exception, one who should be free of the network of obligation which binds everyone else.”
The teacher added: “I’m enormously fond of Boris, and saddened that he should have brought upon himself this sort of report.
“All is not lost, by any means; he can easily effect a full return of grace by showing obvious commitment next [term].”
In the second letter, also sent by Mr Hammond, in July 1982, he suggested that matters had not improved:
“Boris is pretty impressive when success can be achieved by pure intelligence unaccompanied by hard work,” he said.
“[But] he doesn’t have the instincts of a real scholar, and tends to ‘sell himself short’.
“He is, in fact, pretty idle about it all … Boris has something of a tendency to assume that success and honours will drop into his lap: not so, he must work for them.”
Can the same assessment be reasonably applied today? I would suggest that it can; this leopard couldn’t be bothered to change his spots, even if he knew how and even if it were possible.
Boris Johnson has been remarkably successful in his life: as a journalist he wrote fiction and was paid for it; as a television celebrity he put in brief appearances, cracked jokes, and was paid for it; as Mayor of London he did little of value; as Prime Minister, well, he merely extended his underwhelming run of under-achievement. Despite all this he has earned millions – directly or from book royalties.
He really does have that sense of entitlement. The world, apparently, owes him a living.
Perhaps, in place of voluntary TV debates, anyone wishing to be considered as the next PM should be obliged to publish their School Reports, received since they were seven.
To quote Aristotle: “Give me a child until (s)he is 7 and I will show you the (wo)man.”…
However, that doesn’t exactly answer my question. The letters show that, once Johnson had decided on being top, he expected to be so but they don’t clarify what the office of PM meant to him. Unless, as intimated in my first comment, he sees the office as being Captain of the School. But that is so puerile that I am still astonished.
“…the best job in the world…” That’s what he said in his resignation speech. That’s what the office of PM means to him.
But that’s still without defining “job”.
The question was “Why did he want to be Prime Minister?”. The answer doesn’t require defining the job.
It’s the best job in the world (that he can have). That’s why he wanted it for himself.
Yes, just like being Captain of the School.
Top boy. All the glory.
The work doesn’t matter. Work is beneath him. Someone else will do it.
Too vain to see that he was nothing without Dominic Cummings standing behind him.
The last two blog posts are closely inter related.
None of the candidates are up to the job of Head of State .
None of the candidates could on grounds of ability secure a top position on merit at any leading company.
Johnson’s general demeanour and comments yesterday do not augur well. It is as if the UK had advanced nowhere in the last six years and even if it were to go into reverse gear now it will inevitably stall.
Any Scot listening to Sunak’s views on the Scottish Parliament will surely be rereading Stevenson’s boat trip to Skye.
Likewise Redwall voters can fairly question what are the economic and social benefits the UK enjoys from Northern Ireland’s continued membership of the Union.
Watching a nice middle class English woman wearing 50 pound summer frocks from M&S will not paper over the cracks which are becoming clearer for all to see.
Say what you like about Goldman Sachs (I often do), but it is a major company any way you define one. The fact that he worked there suggests he has a good brain, whatever his other merits or demerits.
The Barbara Hale remark sounds more like mental illness than hubris, though it could be both.
Charmless, deluded, vainglorious and mendacious.
That such a man should have become prime minister is deeply shaming.
I think Johnson he meant “With our 80 seat majority and a general election mandate, we enacted the legislation to leave the EU, including the Withdrawal Agreement that we negotiated with its Northern Ireland Protocol, although we are not as happy with it today as we were when we pushed that oven-ready deal through”.
As she announced month before – indeed, months before the general election that gave Johnson his majority and mandate – Baroness Hale retired almost two weeks before the European Union (Withdrawal Agreement) Act 2020 received Royal Assent, and three weeks before the UK formally left the EU.
Johnson was letting his rhetoric get away from himself – just as he needed the Speaker to remind him yesterday that the motion of confidence was brought by the government itself, not the opposition.
The problem remains that large swaithes of the English population see Johnson as a victim. The real problem is that England has become a country with people that think completely irrationally, like turkeys voting for Christmas. It is this that will see people, like me, that voted to remain as part of the UK in the Scottish Referendum, now wondering how they could have been duped by Etonian wide boys, like Cameron and Johnson, Oxford PPE and history graduates.
Very glad DAG reminded us of the vital constitutional role played by the UK SC then led by Lady Hale.
After Gina Miller brought her prorogation action I remember the outrage in the right wing media including many personal slurs against Ms Miller saying a brown immigrant should know her place & shut up, however particularly remember the media quoting right leaning legal pundits (including AG Cox) saying that Johnson would win the case or that at worst it would be very evenly split decision giving him cover but when it came down as a unanimous vindication of Ms Miller and Johnson was shown to be a fool and liar the Tories then marked the SC as enemies to be taken down a peg. As DAG has averred in a past post there is some evidence of the post Hale SC buckling under pressure by being careful not to be seen as activist.
So it’s highly relevant to todays post that today Gina Miller has an opinion in the Guardian looking at the NIP Bill and is pointing out publicly that far from being ‘minor adjustments’ the NIPB is de facto a major step to undoing the constitutional documents of the UK.
It was clear to me on looking at it that it overturns the self governing constitutional status of NI as laid out in the 1998 Government of NI Act (enshrined the GFA) and 1920 Government of Ireland Act.
Broad ‘Henry VIII’ powers are given to Westminster Ministers to impose English law & Courts on NI and to ignore the NI Assembly and NI Executive. No surprise since the legislation was drawn up by the ERG working closely with Liz Truss and they and the DUP have no intention of allowing the majority will in NI to prevail.
Ms Miller’s point is that if this is done in NI then soon Scotland will follow and indeed even the Westminster Parliament will find it’s ignored or overruled. As DAG noted in a recent post UKG Ministers now don’t bother to turn up for meetings with the various HoC oversight committees because they don’t care.
“As DAG has averred in a past post there is some evidence of the post Hale SC buckling under pressure by being careful not to be seen as activist.”
That is not my view.
Thanks, I stand corrected, and so was led to reread your blog of 22nd July 2021 entitled “Explaining the attack on judicial activism that never happened – three theories” in which I am reminded that it was not you but Alexander Horne who argued ‘that it is the policy of the courts that has changed’ and discuss his ideas and comment that “There is certainly a shift in the supreme court under the new president Lord Reed”
I think there is a shift, of sorts, but I do not think it is because of the SC “buckling” under “pressure”. I think the shift is sincere.
The numbers are small and the results will depend on the particular cases in each year, so take it with a pinch of salt; but with those caveats, there is some interesting numerical analysis of the percentage of UKSC cases in which “human rights” arguments have been raised and won (or lost) and cases in which “public authorities” won (or lost) over time.
See
https://ilchiodofisso.net/how-shallow-is-the-shallow-end%ef%bf%bc%ef%bf%bc-uk-constitutional-law-association.html
The numbers match the perception that the UKSC under the presidency of Lord Reed has been hostile to human rights arguments, and minded to support decision-makers – more so, in each case, than under any previous president.
Or, as Robert Buckland (remember him?) has put it, the court has shown “the appropriate degree of restraint”.
Speaking of former Lord Chancellors, I can’t think of one who also served as Prime Minister, whether before or afterwards. Might Truss be the first? How the mighty office has fallen. (Although at least a couple of Lord Chancellors were previously Chancellor of the Exchequer.)
Perhaps I should have linked to where it seems that analysis first appeared (not sure of the status of the republisher): https://ukconstitutionallaw.org/2022/04/04/lewis-graham-the-reed-court-by-numbers-how-shallow-is-the-shallow-end%ef%bf%bc%ef%bf%bc/
He’ll be using this line many times during lucrative after dinner speeches
I think when he says they saw off Hale and got Brexit done what he means is that despite being unable to do an end run around Parliament, they managed to get there in the end. Indeed, what they managed was remarkable. However, it is offensively disrespectful to refer to Lady Hale by her given name. She is entitled to be called Lady or Baroness Hale now and forever. She delivered the judgement, but let’s not forget that it was unanimous among 11.
I think your concern that, it does not bode well if the wider polity fall in line with the Boris (Public School) mindset, is very much a case of locking the stable door after the horse has bolted, been turned into dog food and deposited in a plastic bag in someone else’s hedge.
My personal experience is that the hyper-partisan approach to politics, the separation of powers from the rule of law and a thorough contempt for checks and balances, has already been alive and well within my own Local Council, at both District and Parish level for the past 10-years. I suppose, if Boris et al are behaving in the way they are in ‘The Smoke’, why should they do differently?
The elimination of Ms Badenoch from the Leadership race… race as in the sense of: “to the bottom”, the self-proclaimed “Fresh start” and supporter of the people, cam only be a good thing. She appears to be nothing but ‘more of the same’; an ambitious self-publicist in pursuit of self-interested power.
I am reminded of Douglas Adams: “The major problem—one of the major problems, for there are several—one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them.
To summarize: it is a well-known fact that those people who most want to rule people are, ipso facto, those least suited to do it.
To summarize the summary: anyone who is capable of getting themselves made President should on no account be allowed to do the job.”.
Since becoming MP for Saffron Walden in 2017, despite lobbying from constituents, Ms Badenoch did nothing to pressure the District Council – now placed in Special Measures by Central Government, to investigate complaints about decisions, made contrary to Parliamentary intent and in breach of the Council Constitution. She did nothing to hold those in local power to account for their wrongdoing; there appears nothing to suggest she would have been any more pro-active in Westminster…
Ms Badenoch did nothing to support a constituent, who’s Human Rights were being trampled by the council’s Senior Leadership, who prefer to spend taxpayer money on solicitors to bully and ‘gaslight’, rather than conduct a proper, impartial, unbiased investigation of the facts.
Constitutional checks and balances that prevent politicians from “doing as they wish with the ship of state” are vital. It is a shame that the Local Government Ombudsman, as discussed in other blogs, is so ineffective…
Politicians, for the sake of their careers, already seem to be of the opinion that the plebeians and the truth are what need to be “seen off”.
Come the revolution!…