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Liz Truss has failed spectacularly and should resign

The Lord Chancellor's delayed response to the attacks on the judges behind the "Brexit ruling" has fuelled calls for her to quit.

I didn’t expect to be writing that headline less than five months into Liz Truss’ reign as Lord Chancellor and Secretary of State for Justice. Truthfully, I hoped I would never be writing it at all. Amidst the wails of protest that greeted her appointment, I was one of those urging that we give the new Lord Chancellor time. No, she had no legal qualifications or experience. Yes, she was trailed by suggestions that she harboured the type of damned ambition that drove Chris Grayling to such ruinous vandalism across the justice system. And the less said about that cheese speech the better. But, I counselled, Michael Gove should give us all pause for thought. Because, putting aside whatever other noses he may have put out of joint, during his brief tenure at the Ministry of Justice, he was impressive. He demonstrated genuine interest in and respect for not only his political brief, but the particular constitutional significance of the role of Lord Chancellor, which uniquely requires the office-holder to swear an Oath and discharge a statutory duty to defend the independence of the judiciary and respect the rule of law. And, notwithstanding the vocal scepticism of Ms Truss’ predecessors and colleagues over whether she had the mettle to stand up to her fellow ministers in discharging these duties,  it was only right that she be given a chance to prove herself.

Yesterday was that chance. Yesterday was her first big test. And she has failed spectacularly.

On Thursday, the High Court handed down its judgment in R (Miller) v Secretary of State for Exiting the European Union. You may better know it as the “Brexit ruling”. It wasn’t anything like that, of course; the Court was at pains to distance itself from the political question of whether we should leave the EU, or what such Brexit should look like. But the Court was asked, and everyone concerned – including the government’s lawyers – agreed that it was proper that the Court should determine, whether notice to leave the EU pursuant to Article 50 could be given by the Prime Minister exercising the Royal Prerogative, or whether an Act of Parliament was required. The Court, in a scrupulously reasoned judgment, held that an Act was required. As was inevitable regardless of outcome, this decision will be appealed upwards to the Supreme Court, who may reverse it, but as it stands the decision represents an inconvenient, although by no means insurmountable, bump in the road to the government’s planned March 2017 Art. 50 notification.

The merits of the judgment are for other, better legal blogs. But what followed can be discerned by any sentient, non-foaming person as hysteria beyond imagination.

Ukip naturally got in on the act first, its various idiotic pretenders to its cheap, nasty throne jostling to shout loudest for the “sacking” of these “unelected, activist judges”. They were soon joined by the intellectually backwards rump of the Tory party. Last night on Question Time, Sajid Javid, a government minister, danced around the issue of whether the independent judiciary had “thwarted the will of the British people”.

And then we woke up. And the front pages of the tabloid press looked something like this:

Words are not enough. Not mendacious, misinformed, contemptuous nor dangerous, of which it is all these things, and far more besides. These were the front pages of failed states. Where judges are routinely dispatched to the netherworld at the whim of megalomaniacal dictators, and “law” amounts to the fancy of the armed masses. Our judges were out of touch, elitist, posh, democracy-thwarting, Europhile, corrupt and biased Enemies of the People. MailOnline yesterday famously – before quickly deleting the evidence – denounced the fact that the Master of the Rolls, one of the three judges, was “a gay ex-Olympic fencer”. The Daily Express, declaring the judgment “a crisis as grave as anything since the dark days when Churchill vowed we would fight them on them on the beaches”, actively called for its readers to rise up and “Rise up and fight, fight, fight.” Naturally, within minutes there were calls on Twitter for judicial executions.

A starker, more blatant attack on judicial independence is hard to conceive. It is one thing to criticise court rulings. Or to draw attention to judicial decisions where they fall into error. But when the legislature and executive join forces with the media to launch rocket after rocket of personal, unwarranted abuse that is intended not to criticise or inform, but to demean, undermine, unnerve, terrify and intimidate independent judges who cannot answer back, we have a genuine constitutional crisis. The separation of powers is not just breached but scorched to the ground.

And it matters. It’s not just an empty turn of phrase trotted out by lawyers like a lot of the obsolete Latin we cling to. It’s of fundamental importance to the way we run our democracy. The separation of those who make our laws, apply those laws and govern the country is integral to ensuring that each branch of our constitution – legislature, judiciary and executive – can do its job. Key to this is judicial independence. We want our judges to be able to comply with their judicial oaths and apply and interpret legislation and case law faithfully and fairly, without fear or favour. They have to be free to rule when government purports to act unlawfully, without the lurking threat of personal or political consequences. Judges who have that independence compromised are, using the term in its proper sense, dangers to the people. Because they no longer apply the law on the basis of independent assessment of the merits of a particular interpretation, but to curry favour or avoid censure. There’s a reason our judiciary travel the world training judges in other states. Our model is the model to which others aspire.

And so what of our Lord Chancellor? How long did it take her to step out of the shadows and call for calm? To remind us all – populace, media, parliament and executive – that due process to challenge the judges’ decision is taking place, and that the vicious, misinformed and unwarranted rage on display represents a dangerous and unjustified threat to the foundations of our democracy?

How many hours passed, after the prime Mmnister pusillanimously refused to acknowledge that there was a problem, for Ms Truss to stand up to the PM and release a statement defending the right of judges to carry out their vital constitutional function without being gratuitously abused and threatened?

Nothing by lunchtime on Friday. The calls came louder. Shadow Lord Chancellor Richard Burgon released a statement condemning the behaviour and urging the Lord Chancellor to join him. The Lib Dems did likewise.

And as the clamour grew, as the legal profession watched on expectantly, waiting for the self-styled guardian of the judiciary to step into public view and remind her parliamentary colleagues, fellow ministers and the media of the centrality of judicial independence to our constitution, and of the inherent danger in misrepresenting and hounding judges in such vile terms, there was the deafening sound of silence.

The Lord Chancellor said nothing. Not a single word.

So what we have is the Rule of Law being roundly trounced and judges being threatened for having had the audacity to apply UK law to a UK legal question and conclude that the UK Parliament was supreme. And our cowardly, charlatan Lord Chancellor, cowering in the good graces of her prime minister and a rampant, ugly tabloid media, sitting meekly by and watching the world burn.

The statement, when it finally came on Saturday afternoon, was belated and mealy-mouthed, speaking of the importance of a "strong and independent" judiciary but failing to condemn the backlash against the three judges who made the Article 50 ruling. But by now, it’s too late. Like the Queen being shoved before the cameras several days after Diana’s death, the pause betrays the reality. Faced with the choice between upholding her Oath and pleasing her masters, she has unforgivably opted for the latter.

She won’t resign, of course. What’s more likely is that she will stick around for 18 months, do the bidding of others who care not for quaint notions of justice and the Rule of Law, and slide quietly up the ladder to the next portfolio. Her Oath to protect the founding principles of our civilisation appears to means less to her than the emergence of Chinese pork markets.

As someone even angrier than I once said about the serious subject of how much cheese we import:

That. Is. A. Disgrace.

Read more from the Secret Barrister here

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The rise of the green mayor – Sadiq Khan and the politics of clean energy

At an event at Tate Modern, Sadiq Khan pledged to clean up London's act.

On Thursday night, deep in the bowls of Tate Modern’s turbine hall, London Mayor Sadiq Khan renewed his promise to make the capital a world leader in clean energy and air. Yet his focus was as much on people as power plants – in particular, the need for local authorities to lead where central governments will not.

Khan was there to introduce the screening of a new documentary, From the Ashes, about the demise of the American coal industry. As he noted, Britain continues to battle against the legacy of fossil fuels: “In London today we burn very little coal but we are facing new air pollution challenges brought about for different reasons." 

At a time when the world's leaders are struggling to keep international agreements on climate change afloat, what can mayors do? Khan has pledged to buy only hybrid and zero-emissions buses from next year, and is working towards London becoming a zero carbon city.

Khan has, of course, also gained heroic status for being a bête noire of climate-change-denier-in-chief Donald Trump. On the US president's withdrawal from the Paris Agreement, Khan quipped: “If only he had withdrawn from Twitter.” He had more favourable things to say about the former mayor of New York and climate change activist Michael Bloomberg, who Khan said hailed from “the second greatest city in the world.”

Yet behind his humour was a serious point. Local authorities are having to pick up where both countries' central governments are leaving a void – in improving our air and supporting renewable technology and jobs. Most concerning of all, perhaps, is the way that interest groups representing business are slashing away at the regulations which protect public health, and claiming it as a virtue.

In the UK, documents leaked to Greenpeace’s energy desk show that a government-backed initiative considered proposals for reducing EU rules on fire-safety on the very day of the Grenfell Tower fire. The director of this Red Tape Initiative, Nick Tyrone, told the Guardian that these proposals were rejected. Yet government attempts to water down other EU regulations, such as the energy efficiency directive, still stand.

In America, this blame-game is even more highly charged. Republicans have sworn to replace what they describe as Obama’s “war on coal” with a war on regulation. “I am taking historic steps to lift the restrictions on American energy, to reverse government intrusion, and to cancel job-killing regulations,” Trump announced in March. While he has vowed “to promote clean air and clear water,” he has almost simultaneously signed an order to unravel the Clean Water Rule.

This rhetoric is hurting the very people it claims to protect: miners. From the Ashes shows the many ways that the industry harms wider public health, from water contamination, to air pollution. It also makes a strong case that the American coal industry is in terminal decline, regardless of possibile interventions from government or carbon capture.

Charities like Bloomberg can only do so much to pick up the pieces. The foundation, which helped fund the film, now not only helps support job training programs in coal communities after the Trump administration pulled their funding, but in recent weeks it also promised $15m to UN efforts to tackle climate change – again to help cover Trump's withdrawal from Paris Agreement. “I'm a bit worried about how many cards we're going to have to keep adding to the end of the film”, joked Antha Williams, a Bloomberg representative at the screening, with gallows humour.

Hope also lies with local governments and mayors. The publication of the mayor’s own environment strategy is coming “soon”. Speaking in panel discussion after the film, his deputy mayor for environment and energy, Shirley Rodrigues, described the move to a cleaner future as "an inevitable transition".

Confronting the troubled legacies of our fossil fuel past will not be easy. "We have our own experiences here of our coal mining communities being devastated by the closure of their mines," said Khan. But clean air begins with clean politics; maintaining old ways at the price of health is not one any government must pay. 

'From The Ashes' will premiere on National Geograhpic in the United Kingdom at 9pm on Tuesday, June 27th.

India Bourke is an environment writer and editorial assistant at the New Statesman.

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