Berlin – 30 years

The wall fell 30 years ago today; the most monumental event of an extraordinary year of freedom – 1989. The news should be wall-to-wall wall, but somehow it is as if the world has moved on. The sudden burst of freedom the year brought to many, many millions cannot be an ‘and finally’ on the news. We must never, never forget what lay behind the Berlin Wall and the thousand miles of barbed wire and minefields that snaked across the continent to stop the slave subjects of Communism from slipping their bonds into freedom.

The joy of escape that those imprisoned Germans felt as they entered West Berlin reverberated across the world, and although they were only escaping into a small bubble city itself trapped within the east, it was an escape into freedom that they could know at once, and at the same time, the border all across Germany was opened, but it was the wall, the horrible wall, which symbolised it all. That night men went out with pickaxes and began to take their revenge upon it, to open it physically. Once this would have been greeted with gunfire, but now with cheers.

There was no sense that the East Berliners were unwilling to accept an unaccustomed freedom, not knowing what it was – they and their parents had not lived in freedom for fifty-six years, not since Hitler snuffed it out, and Stalin followed him. They knew freedom though when they breathed it – it is the instinct of mankind.

I was in Berlin a few years later, and picked up a chunk of the wall. That piece, in its condition smashed off by that hand of a free Berliner was a symbol both of freedom, and of the slavery which preceded it. The dark days should never be sanitised, nor our accustomed freedom be treated lightly.

Selecting the select few

Meetings come in a few briefly described types: those where the result is stitched up beforehand and the members are a rubber stamp; those of high tension and raised voices with fortunes and careers made or broken on a knife-edge; ones where the members doze while the few who are interested get on with the business; and those like tonight’s where nationally important issues are at stake but everyone is too polite to make a thing of it.

This is a bizarre election:  you should never have constituencies still without candidates barely a month from the poll, but this has been a bizarre time for politics for a long time, and several Conservative Associations were having their selections tonight – and some still have not had theirs, and at least one has had a spill already and needs a new man. This is unprecedented. On the Labour side it is worse – they find themselves with a slate of candidates full of those whose advancement came through publishing weird, hatred-laden conspiracy theories, and they cannot be removed or there would be few candidates left. (My, the next Parliament will be fun.) That is where we are though.

Back to tonight and a packed village hall. Three candidates, all of them good, all knowing their political careers are on the line. All have a line in big speeches, which helps I suppose.  Only one is local though, and that counts in a parochial part of the county like ours.  It does not help that it was all last-minute, our longstanding member having deselected himself.  (The number of defenestrations has been an unwonted phenomena.)

We have to ask how far personal favours go.  It is for local members of course, and if one candidate was obviously parachuted in at the will of CCHQ, that does not give her a free pass, especially against a local lass.

They were all impressive.  I thought we might skip over how they had voted in the Referendum, which would have been damning, but no: out it came and was damning indeed.  Next – would they turn renegade like the man they were to replace?  All were ready for that question and all had pledges of loyalty of course.  (Every man has his price.  I do not want to find out what it is.)

No favours; that is what I decided when I went in.  Come off it though – politics is all about personal favours and whom you can best assume will give a leg-up when you need it. I have shamelessly schmoozed cabinet ministers (only to find them in turn ejected from their offices, so perhaps I am best avoided).  “The best for the nation” often comes down to “if they are all equally good, who is a friend?”

Three on the stand, all with jawdropping achievements in their CVs – I reflected on how empty mine would be were I invited to try my hand. Not a single Protestant among them disappointingly: an unheard of position not so long since. All otherwise had good records and good pitches.

I know who had the best pitch and the best presentation, but only one had voted Leave in the Referendum, and for some in the hall that was the decider, for enough to secure the nomination. I wonder how often the same game has been played out in village halls up and down the kingdom.

I wonder how often the same game has been played out in village halls up and down the kingdom.

The rule of lawyers

The number of times I have touched on the problems of judicial review since the Supreme Court’s wild prorogation ruling is matched only by the number of times other commentators have, and the think tanks which may shape actual action after the election are at work. The unwelcome intrusion of judges is a target for reformers.

Another issue recently highlighted by the Policy Exchange is the intrusion of lawyers into judging battlefield decisions – ‘lawfare’ as it is called. This is in the sights too. The growth of law in war is all part of the same unconscious movement in the practice of litigation.

A principle of the common law is that it covers every situation, which is the point of its being common to all and a basis of a settled society with understood rules – so that for anything that happens one should be able to say what the legal position is. This may just be judging whether an action is criminal, or saying what rights a man may have and if he should have a remedy against anyone who infringes those rights. Over centuries the system of law has been determined by countless decisions, to make one, vast field of study and one comprehensive system.

The theory that the system of law is comprehensive and able to be applied in any situation leads to strange consequences, like trying to judging actions on a battlefield from far off. This is new. A generation ago, senior lawyers, barristers and solicitors and judges too, knew what war was. They had been on the battlefield as officers. They had seen comrades blown up beside them, they had made snap decisions and sent men to certain death for a wider objective, They had loosed off rounds at the enemy and closed with a bayonet, remorseless. Then in peace they took to the law. Had any desk-wallah then told them that every decision had to be judged by rules of law, or that a shot is murder unless the enemy has been politely asked to withdraw, their reactions would have been firm. Now we do not have that wartime experience at the bar or on the bench.

In judicial review the position is not as bad as campaigners think, but it is still bad. It is also uncodified, so that a judge can be activist if he or she wishes. The Supreme Court’s prorogation judgment in Cherry/Miller rightly caused outrage, and there is nothing to suggest that it is the high water mark of judicial interference. Once emboldened, the judges with knock at the next frontier.

The reasoning is the same – the law must be comprehensive and therefore there must be a rule for everything. In the prorogation case there was no rule to define the prerogative power of to prorogue parliament and so the court blatantly made one up, with no authority no precedent and no reason known to law. In the context of the constitutional textbooks, this was incomprehensible, but in the context of a theory that the law must govern every act of every sensible being, it has a horrid logic.

The same is seen in other cases – in the Chagos case several judges were prepared to overturn even primary legislation, in that case an Order in Council within the Crown’s plenary authority over a colony, by inventing a rule not hitherto known to law. In the Anisminic case a section of an Act of Parliament was effectively annulled by the court by sleight of hand in its interpretation, and the court went even further in the Privacy International case in 2017 to ignore an Act of Parliament: these Acts excluded the control of the court, and this would be an outrage to a judge, as everything must be judicable. In this context, the Cherry/Miller prorogation case is a natural step on a road, and we are not at the end of the road yet.

Judges have always ‘made law’ in the sense of filling in the gaps where no previous decision had been made. That power is not there to make new rules. Only Parliament can properly do that. Making law must become a habit though, to compete the pattern or to build a hedge about the law.

The courts are tasked with upholding the rule of law, and all these cases have been decided in the spirit of ensuring the rule of law by imposing rules, even where there were none. In doing so they are not upholding the rule of law – that assumes that law that is stable and understood. They are instead imposing the rule of lawyers.

See also


Bizarre self-defenestrations

The election campaign has only just begun and is already looking like the most bizarre one in living memory. We expect the howls of faux-outrage when a leading politician says something that can be twisted in an outraged misquote to build a Twitterstorm, and we expect tumults over tiny things that convulse political insiders but leave the rest of the voters just puzzled, if uncomfortable that something has happened, and even if we do not know what it was, well, it was bad if those who understand it think it was.

We have also come to expect SkyNews acting as the broadcasting wing of the Labour Party.

The Liberal Democrat leaflets with dishonest bar charts and made-up voting figures? That’s practically compulsory in any election

No; the bizarre thing is the pattern in the sudden loss of leading candidates, and the reappearance of others thought disposed of.

Tom Watson – the Deputy Leader of the Labour Party no less. If you are heading into an election with an unpopular leader seen widely as a lunatic, then you need an apparently sane man aboard as a reassurance, but now he is gone. Even as his papers were about to go in, he is gone – out of the deputy-leadership and not standing for his seat. The timing is unspeakable. He was the one the Labour Party kept in so the Party did not look too swivel-eyed. Except of course that Tom Watson entered the ‘loony’ category when he championed ‘Nick’ the fantasist in his accusations against respected, innocent figures. Momentum tried to depose Tom Watson for no being a Communist, but perhaps the dead knife was wielded by one of his victims: Harvey Proctor pledged to stand against him, and remind the voters of what he had done.

Then came Chris Williamson – kicked out because he could not see that expressions commonplace in Germany in the 1930s might not be appropriate in a civilised society. He has reappeared, not for Labour but standing against their candidate, as an independent, at least at the time of writing. Regrettably, he is unlikely to split the red vote too badly. Only a cynic surely would suggest that he is just after the cash settlement that outgoing MPs get only if they stand and are defeated.

Then there are Brexit Party candidates standing aside in droves, on the basis that they do not want to win votes that could more usefully go elsewhere.

This is only Day 1. What monsters will the next 6 weeks bring us? Popcorn please.

Dark times and better times

Treason is never far from us. It may come with an explosive blast – we have seen too many of those in latter years – or it may come with a whisper in dark corners. It may be in the actions of a murderous man intent of terrifying and tyrannising, or in the words of a useful idiot. Ambition, arrogance, malice, or a naïve hope to make things better out of the destruction and weeping – all these are with us.

How many politicians and activists agree that a “desperate disease requires a dangerous remedy”, and justifies thereby what is really an exercise in personal power for a personal thrill? Guy Fawkes and Catesby are not history but a tragedy of humanity.

Remember, remember, the 5th of November
The Gunpowder Treason and Plot;
I know of no reason why the Gunpowder Treason
Should ever be forgot.

Guy Fawkes, Guy Fawkes,
‘Twas his intent.
To blow up the King and the Parliament.
Three score barrels of powder below.
Poor old England to overthrow.

The cynics have called Guy Fawkes the only man to enter the Houses of Parliament with honest intent, but there are many men and women of selfless service there and long have been, and I trust that after the election there will be some there again, amongst the bulk of timer-servers and egotists.

Even now there are plots and plotters, and traitors. Times have been worse though, and the fact that we celebrate our national deliverance on the Fifth of November every year still after all the wars and calamities of the age tells us something. It was not wiped out even by the wars.

During the Second World War and the blackout, P L Travers, the authoress of Mary Poppins wrote:

From 1605 till 1939 every village green in the shires had a bonfire on Guy Fawkes’ Day. … Since 1939, however, there have been no bonfires on the village greens. No fireworks gleam in the blackened parks and the streets are dark and silent. But this darkness will not last forever. There will some day come a Fifth of November — or another date, it doesn’t matter — when fires will burn in a chain of brightness from Land’s End to John O’ Groats. The children will dance and leap about them as they did in the times before. They will take each other by the hand and watch the rockets breaking, and afterwards they will go home singing to the houses full of light…

So we do, and long may we do so.