I don’t want defending the indefensible to become my default position. At least not outside the courtroom. And I’m well aware that what I’m about to say amounts to a defence of a section of society whom very few – particularly among lawyers – would leap to support. And that, following the reaction to my previous blog, there’s a risk of perceived contrarianism creeping into these posts.

But a word must be said sticking up for our judges. At least in this following, narrow, context.

Today, UKIP MP Douglas Carswell took to Twitter to retweet a nonsense article by Daily Telegraph leader writer Philip Johnston berating Mr Justice Hickinbottom. He, for the uninitiated, is the High Court Judge who this week ruled that the Labour Party National Executive Committee (NEC) breached its contractual obligations towards its members through the imposition of the 6-month “cut-off” designed to prevent a large number of party members who joined post-January 2016 from voting in the upcoming leadership election.


The thrust of the article, endorsed by Mr Carswell, was that this being a party political matter, the courts had no place determining it. Johnston stormed:

“In his judgment, Mr Justice Hickinbottom said he accepted and fully endorsed the proposition that “the courts must be careful not to interfere in political matters”. He should have stopped there and declined to hear the case.”

This too is the view of Mr Carswell, who in less temperate words declared:



I’ve asked Mr Carswell to define his understanding of judicial activism, but he has declined, preferring instead to simply insist that there are cases which he is unable to name which disprove the point I’m about to make. Which is this. Judicial activism is a term commonly used to criticise judicial decisions where a judge is perceived to be straying out of the legal arena and into politics. Going beyond his or her Judicial Oath to apply the law and instead shaping it in his or her own image. And understandably this is something of which many people are wary. Carswell’s position appears to be that, in agreeing to hear the claim, the Judge is guilty of straying into politics. And not just a bit guilty, but “foolish” and “appalling” for having done so.

But here’s the problem: This is not judicial activism, you ninnies. Carswell and Johnston are both naughty boys who have failed to do the most fundamental research into how the legal system works. It’s a shame, because if they’d bothered to read the judgment of the case that they both deem themselves qualified to comment upon, they’d have seen that early on, at paragraph 8, the Judge takes the trouble to explain the entirely non-contentious legal principle that the Labour Party, as an unincorporated association, is subject to the law of contract, and therefore an alleged breach of contract (in this case, the terms of membership) is a matter firmly within the jurisdiction of the courts. The Judge even helpfully provides the long-established line of case law confirming this. When I say it’s not contentious, I’m not underplaying it – there was never a suggestion, not even by the experienced Queen’s Counsel appearing for the NEC, that the court shouldn’t hear the case. And that’s because all involved, all those who know the law, know that it’s beyond moot. The court has jurisdiction, so the judge has to hear the case. It’s not a matter of discretion. This isn’t “judicial activism” where Mr Justice Hickinbottom has rolled up his sleeves, winked at the gallery and giggled, “I know I shouldn’t but…”. It’s a judge applying the law. As he swears an Oath to do. He can’t refuse to apply the law of the land because it might upset some twit of a Telegraph hack and an MP who, even when proved wrong, clings to his crumbling life raft of ignorance rather than issuing the simple apology that would lift him back on to dry land. To do so would, in fact, be an act of the very judicial activism that these twin nincompoops deplore.

This may seem a small thing to get upset about, but it’s important. I don’t mind Carswell saying that party politics should sit outwith the jurisdiction of the court. I don’t agree, but he’s free to say it and to call for change. But that’s not what he’s done. He’s attacked a judge as “foolish” and “appalling” for following the law as it stands. And as an elected representative, Mr Carswell, if he’s going to throw around words like “appalling” and “awful”, should at least have the common decency to ensure that his factual premise is correct. Here, as he has embarrassingly demonstrated, his ignorance of the law is dwarfed only by his arrogance in refusing to accept that his legal understanding might not match that of the many many lawyers who have lined up today to correct him. Like a low-budget UK Donald Trump, Mr Carswell has fired off a barrage of abuse at an entirely blameless target, and rather than say sorry would prefer to obfuscate, block and repeat. There’s something appalling and awful about this little tale, alright, but it’s certainly not the judiciary.

And my offer to Mr Carswell remains open. If I’m wrong, and the court could have refused to hear the claim, I will happily apologise. It will be my misunderstanding. The cases that he claims to know which show that the courts can disapply the law when it suits can be posted in the comments below.

thesecretbarrister Bad Law, Judiciary, Lawsplaining, Politics , , , ,

6 Replies

  1. Well written, as always, although you might have saved a little effort by saying that “Judicial activism is a term used to criticise judicial decisions that the critic doesn’t agree with”

    Keep up the good work, and thanks

  2. Why did judges rule on whether the NEC had fallen into error in their interpretation of the rules which allow Jeremy Corbyn to automatically be on the leadership ballot?

    I predicted, wrongly, that the court would rule that it is not for the court, but for the NEC to interpret the rulebook when they voted 18-14 in favour of Corbyn being on the ballot,

    If not contract then what?

  3. It was a very poor article, even without Carswell blundering in. Johnston concedes the key point halfway down (LP as an unincorporated association) and takes refuge in a reductio (what if a party member sued the party for not upholding its aims and values? what then, eh?). It would actually have been judicial activism – albeit pro-state activism – if the judge had reasoned as Johnston would have liked: “yes, this is a point of contract law, but oh dear, bit political, better not go there!”.

    1. Also, I’m not sure that “aims and values” could ever be a matter for legal action, since they are… well, aims and values. There’s no pretence that they’re anything other than aspirations and broad sets of principles. Anyone who can litigate for that is… well, none too bright, I’d’ve thought.

  4. Well written and long overdue explanation to UKIP illiterate brigade that laws should be applied equally to everyone. Problem is the laws are not applicable in cases of UKIP criminality and if you want to find a case of ‘Judicial activism on Ukip’s behalf’, you should look no further than my case – charged and convicted of the crime that doesn’t exist and never existed by the Judge with very well known and close links to UKIP.

  5. I rather suspect that Mr Cars well will care not one jot about the legal truth you have so clearly spelt out. Rather, he cares more about the post-truth politics, enabling him to stir up indignation from people who neither know nor care what the truth is, so long as it accords with their views.

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