Henrik Ibsen’s play “An enemy of the people” concerns the recently opened health baths in a small Norwegian town that the popular local doctor finds to be dangerously contaminated by bacteria.
He alerts the community to the dangers but, instead of being thanked, he finds that local politicians, the local newspaper and then the wider community round on him, fearing that he is jeopardizing the town’s economic future as a health resort.
They try and silence him through bribery and threats. While he ends up losing his job and his house, he refuses to renounce his findings and resolves to remain in the town, ultimately opening a school for the town’s homeless children in order to teach them the importance of thinking for yourself.
The play’s ironic title raises a range of complicated issues. The doctor tries to help people by alerting them of the dangers and protecting their health. However, for seeking to reveal the truth, he is ostracised and punished by a foolish majority simply unwilling to listen.
No such irony was intended in the Daily Mail’s front page headline “Enemies of the People” aimed squarely at the three Judges responsible for last week’s Article 50 Brexit judgement, supplemented by a score of tweets in a very similar vein by a host of the usual rent-a-quote MPs.
Lest we forget, the legal issue at stake was as follows. Article 50 of the Treaty of Lisbon states that notice of an intention to withdraw from the EU must be given in line with the particular Member State’s constitutional processes.
The question for the Court was therefore whether this decision to withdraw could simply be taken by the Government or whether it needs to be approved by Parliament.
The Judges decided the latter, reiterating the fundamental principle of 'the sovereignty of Parliament' and that only Parliament could take away rights that it has granted to British citizens through the last 40 years of EU law.
The judgment (and the press summary of the judgment) made it absolutely clear that the Court was not taking any particular view about whether Brexit is a good thing or not.
The Judges were simply adjudicating on a narrow (albeit very important) constitutional point of the process that needs to be followed.
The ignorance displayed by the media and politicians in reporting the judgment was staggering, with the Judges being accused of deliberately choosing to defy the Brexit voters.
Putting aside for one moment what the judgment actually said, this seems to spectacularly miss the point about the role of Judges. They are there to interpret and apply the law as they understand it.
However, what they are not there to do is to simply plump for a policy outcome that they, or anyone else for that matter, happen to personally favour. And yes, they may sometimes get it wrong (although having read the judgment I really don’t think so in this case), which is why we have an appeal system.
Therefore, it is possible that the Judges in Supreme Court, where this case was always destined to go, may subsequently come to a different view.
The crucial point is that the Judges are charged with providing their best assessment of what the law requires and not there to make the most politically expedient decision that is palatable to the Government of the day.
The ignorance continued with complaints that it was wrong that these ‘unelected, out of touch’ Judges were calling the shots and there was a need to get different judges, presumably on the basis so that they would presumably make a different decision.
This really is dangerous territory that goes to the heart of the rule of law, the principle that no one, including the Government, is above the law and that the lawfulness of its decisions can be challenged through the Courts by an independent judiciary.
What is ironic is that it is often these very same newspapers and politicians who speak so passionately about this country’s proud legal tradition from the Magna Carta, through the Bill of Rights, onwards, and are so keen to export these values to other parts of the world, that are seeking to destroy these very checks and balances that lie at the heart of our constitution.
Do they really want to live in a country where the Government is able to hire and fire the judges depending on whether or not it likes their decisions? Step forward David Davies MP (backbench Conservative MP for Monmouth) or Jack Lopresti MP (backbench Conservative MP for Filton and Bradley Stoke) don’t be bashful, would you?
Perhaps a Parliamentary fact finding tour of countries such as Russia, Georgia, Belarus and Zimbabwe can allow you to reach of view on the merits or otherwise of countries with a less than independent judiciary.
However, it is not merely the ignorance that is so depressing. It is the angry hectoring and none too subtle attempt to put pressure on the Judges that is especially worrying.
It is possible to disagree with the decision, albeit I have seen no erudite critique of the judgment by the Judges’ many critics.
It is also perfectly respectable to say that the judgment raises important issues about, for example, where referendums fit in our democracy.
However, simply describing the Judges as enemies of the people is particularly cowardly as it is done in the knowledge that judges, through their position, are unable to answer back and enter into an angry slanging match.
This was compounded by the Daily Mail initially running a headline in its online edition, now deleted, that detailed the personal life of one of the Judges for no reason that seemed in any way related to the story.
Whether a complaint is made to the Independent Press Standards Organisation in relation to a possible breach of the Editor’s Code of practice concerning privacy only time will tell.
The increasing identification by politicians and newspapers of lawyers with their unpopular clients and Judges with unpopular decision is worrying.
It seems increasingly a case of playing the man rather than the ball that goes to the heart of the principles that everyone is entitled to the assistance of a lawyer and everyone is equal under the law.
This demonisation of lawyers acting in unpopular cases represents a real barrier to justice. Especially as an overzealous state may be particularly tempted, for politically expedient reasons, to act unlawfully against the most legally vulnerable and marginalized in society as they often happen to be the most unpopular.
Again, a Parliamentary fact finding tour of countries such as China, Pakistan and Iran where lawyers are routinely persecuted and even murdered, presumably having been identified as enemies of the people, may also be educational.
In this context, it is all the more unsatisfactory that Liz Truss, the current Lord Chancellor and Secretary of State for Justice, charged with a statutory responsibility of defending the independence of the judiciary remained silent on the matter for so long.
So when it comes to who the real enemies of the people, it is hard to take lessons from a paper whose illustrious previous headlines have included “Hurrah for the Blackshirts” in the 1930s and “Britain threatened by gay virus plague” in the 1980s.
Rather, when you have ignorant and bullying stories of the sort published on the front pages of newspapers that do so little to inform or educate and seem more to mislead and pander to our worst prejudices, I feel immensely saddened that a little bit of our common humanity dies.
In these moments I am fortified by Ibsen’s good doctor who refused to back down in the face of such collective ignorance and hostility and ultimately found strength in his outsider status, confident in his belief that he was trying to change things for the better.