Trenchant criticism of judges is nothing new. Britain’s judges have been characterised as enemies of the people on numerous occasions: Taff Vale, Osborn, Roberts v Hopwood, Rookes v Barnard, Bromley v GLC and many other instances.  Yet when Miller attracted the headline “Enemies of the People” from the Daily Mail, “The Judges Versus the People” in the Telegraph and other hostile coverage in the Sun and the Daily Express, this was condemned as “smacking of a fascist state” (Dominic Grieve) and “threatening the independence of the judiciary” (Bob Neill). Such condemnation went hand-in-hand with spirited denials that the judges were doing anything even vaguely political. Thus Shadow Lord Chancellor Richard Burgon insisted that judges put their political views aside whenever they decide cases, and Lord Falconer asserted that “our judges do not do politics: they do law”. He added that we should cherish the confidence which the British people have in the courts, which is being undermined by Brexit-fuelled vitriol. Legal scholars joined the chorus, with supporters and detractors of Miller alike uniting to urge all public lawyers to deplore the newspaper criticism of the judges.

This post puts the opposite view. It argues that talking in terms of judges as “enemies of the people” and of “the judges versus the people”, whatever one may think of such views, constitutes a legitimate exercise of free speech, which is something that we British should hold dear as part of our national identity. I am not interrogating the more detailed arguments advanced by these newspapers nor condoning hate crimes and online abuse which deserve to be prosecuted wherever appropriate, nor have I any wish to endorse the existing system of media ownership. My concern here is that if the press cannot make forthright attacks on the judiciary then that casts doubt on everyone’s freedom to do so; and that such a cocooning of the judiciary goes too far in infringing free speech.

The rationale for condemning the headlines is that they are so inflammatory as to undermine the independence of the judiciary. There’s nothing wrong with criticising judges, so the story goes, but criticism must be couched in less extreme terms. Otherwise the judges may be intimidated into doing the bidding of the press which in this instance coincides with the wishes of the government. They will thereby lose their cherished freedom of judgment.

It is not clear quite how academically-nuanced, how meek-and-mild, and how indigestible to the average newspaper reader such criticism would have to be in order to pass muster. More fundamentally, however, this argument rather assumes that judges were independent in the first place. Yet as J.A.G. Griffith rather convincingly argues in The Politics of the Judiciary (1977) British judges cannot be politically neutral since they are constantly placed in positions where they are required to make political choices, which are presented as determinations of where the public interest lies. Their interpretation of the public interest, Griffith contends, is determined by the kind of people they are and the position they hold in our society. They are part of established authority, and so the judges tend to side with established authority. On Griffith’s reading, therefore, the independence of the judiciary does not exist in any meaningful sense. It only exists if one inhabits an ivory tower in which one ignores the structure of capitalist society. The imperatives of that society constitute a far more profound violation of the independence of the judiciary than newspaper headlines.

Much the same position was hammered home by Ralph Miliband in The State in Capitalist Society (1969).  Miliband argues that judges cannot be independent of a multitude of factors, including class origin, education, class situation and professional tendency.  Miliband maintains that in making law, judges are bound to be deeply affected by their view of the world, which in turn determines their stances on the conflicts which occur within it. This makes inevitable a distinct and identifiable ideological bias. The judiciary is therefore no more “above” the conflicts of capitalist society than is any other part of the state. If we accept this, then so much for the independence of the judiciary, the principle on which press censorship is now being proposed.

Neither Griffith nor Miliband, however, could have anticipated the degree of European legal integration in the decades following publication of their books. The transformation of the rudimentary common market into the grand European Union, and the growing importance of the European Convention on Human Rights through Strasbourg jurisprudence and the Human Rights Act, has had a further impact on the vaunted independence of the judiciary. Both the EU and ECHR legal regimes have relied on the directed use of judicial power to achieve their objectives. This meant that the power of national judges had to be increased vis-à-vis the national government and parliament. As Joseph Weiler recounts in The Constitution of Europe (1999), EU law brought about a legally-driven constitutional revolution. This revolution was a narrative of plain and simple judicial empowerment, not primarily of the Court of Justice but of the Member State courts, in particular lower courts and tribunals.  EU law bestowed on national judges such rights as: the right to set aside national statute regardless of traditions of the inviolability of statute; the right to make teleological interpretations regardless of practices of simple literalism; and the right to grant effective remedies regardless of the restrictions under which the court or tribunal has itself been created. In the same vein the HRA has elevated the institutional position of the judiciary by fostering additional interpretative flights of fancy and enabling higher courts to declare statute incompatible with human rights. The idea that the judiciary could possibly be independent as regards the retention or discarding of legal regimes which so empower them is fanciful. Indeed, they are being obliged to act as judges in their own cause.

Furthermore EU law and human rights law have placed the courts even more politically centre-stage than in the days of Miliband and Griffith. Against this backdrop, since free speech on political matters should lie at the heart of British society, if the political struggle is increasingly played out in the courts, one should not stifle criticism of judges any more than criticism of government or MPs. In this regard, at general elections the different parties frequently talk in extreme terms, characterising their rivals as enemies of the people whilst presenting themselves as the electorate’s only friend.  Such discourse reflects “the irreducible character of antagonism” in society (Chantal Mouffe, The Return of the Political, 1993). If judicial independence is not a jewel but a fake then the rationale for frowning upon similarly uninhibited free speech in relation to judges is rather undermined. Seen in this light, the noise and discord of “extreme” headlines are actually signs of a healthy democracy. By the same token the time may well be ripe to look again at the tradition that judges meet fierce criticism with polite silence.

After all, what’s the alternative? The Daily Mail has already made it abundantly clear that it will in no way tone down its attacks on the judges if in its view (right or wrong) they obstruct Brexit. No doubt other newspapers are also unswayed. The attempt to implant a new political taboo has thus already failed. So what would establishment-minded people have us do, criminalise such attacks? Will we be flinging journalists and editors into prison in the name of preventing a fascist state?

Danny Nicol is Professor of Public Law at the University of Westminster.