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The realities of politics and the judiciary – Financial Times

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The writer is an FT contributing editor

The unattractive politics of Donald Trump quickly nominating Amy Coney Barrett to fill the vacant seat on the US Supreme Court has prompted some self-congratulation in the UK. Things are done differently here, is the comforting thought, for the appointment of judges is not politicised.

The truth is, however, that in England and Wales at least (Scotland and Northern Ireland have their own legal systems) there has always been a substantial overlap of law and politics: it is just that the British are rather good at pretending otherwise.

Take the historical appointment of judges. Until the previous century, it was practice that the senior office of the lord chief justice, who presided over the most serious criminal trials, followed political service. Similarly, attorneys-general retiring from parliament were often made High Court judges. There was much fluidity between the political and judicial establishments. 

At the apex of the constitution, the ancient office of lord chancellor entitled its holder to sit both in the cabinet and as a judge in the most senior court of the land. Remarkably, this carried on until Tony Blair’s first Labour government of 1997 to 2001. The notion that there has always been some total structural divide between politicians and judges in England betrays a lack of knowledge of the country’s legal history.

Even now, barristers (the lawyers who tend to present cases in court) are encouraged to provide regular legal services to ministers and officials at a substantial discount so as to obtain promotion to the judiciary by joining a prestigious panel. The best of them are given income streams as “Treasury counsel”, charged with helping the government out of awkward or sensitive political-legal situations; in return they are often appointed as a High Court judge. In this way judicial preferment is formally based in part on assisting ministers and officials.

And when appointed, judges are often in effect lawmakers and policymakers, though they cloak it as “developing” existing law. Over the past 20 years, they have introduced an entirely new privacy law, with no explicit statutory basis. The most senior UK Supreme Court judges now also frequently make and publish extrajudicial speeches on general public policy issues, which are often a better guide for understanding the direction of the law than anything said in parliament.

Once retired, English judges use their status freely to contribute to public debate, as with the notable examples of Jonathan Sumption, a former Supreme Court justice, and Brenda Hale, former president of the Supreme Court. Indeed, the wisest current writer on the relationships between law and policy in the UK is the former Court of Appeal judge Stephen Sedley.

Even in their judgments, rather than their statements outside court, one can see the policies and politics of the judiciary. In the 1970s, the legal academic JAG Griffiths provided a detailed compendium of political judgments; 50 years later one can look online at the reasoning in “public law” cases where the practical boundaries of the state are determined, when of course these boundaries are the most political issues of all.

None of the above is necessarily wrong; much of it is a normal fact of political and legal life. Judges with political worldliness are not a bad thing. And it is good that ministers and officials have ready access to high quality legal advice. The most important question is how to manage the overlap, not to contend that it should not exist.

The problem is with the simplistic and misleading notion that law and politics are completely separate public realms. There is and always will be substantial common ground. The same set of facts can easily be both a matter of political controversy and a question for a court. What needs to be struck is the right balance.

An extreme example of imbalance, of course, is when the executive seeks to extinguish the independence of the judiciary — as in Poland. Since coming to power in 2015, the deliberate policy of the Law and Justice party has been to limit or remove the structural separation of powers, including to change how the Supreme Court head is appointed.

But it is equally an error to insist naively on politics and the judiciary as being absolutely distinct. There may be obvious faults with the US system of appointing Supreme Court judges and federal judges generally, but the main difference between that and the English approach to the politics of the judiciary is that the Americans are open about the relationship, and the English are not.

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‘Disgraceful:’ N.S. Tory leader slams school’s request that military remove uniform

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HALIFAX – Nova Scotia Premier Tim Houston says it’s “disgraceful and demeaning” that a Halifax-area school would request that service members not wear military uniforms to its Remembrance Day ceremony.

Houston’s comments were part of a chorus of criticism levelled at the school — Sackville Heights Elementary — whose administration decided to back away from the plan after the outcry.

A November newsletter from the school in Middle Sackville, N.S., invited Armed Forces members to attend its ceremony but asked that all attendees arrive in civilian attire to “maintain a welcoming environment for all.”

Houston, who is currently running for re-election, accused the school’s leaders of “disgracing themselves while demeaning the people who protect our country” in a post on the social media platform X Thursday night.

“If the people behind this decision had a shred of the courage that our veterans have, this cowardly and insulting idea would have been rejected immediately,” Houston’s post read. There were also several calls for resignations within the school’s administration attached to Houston’s post.

In an email to families Thursday night, the school’s principal, Rachael Webster, apologized and welcomed military family members to attend “in the attire that makes them most comfortable.”

“I recognize this request has caused harm and I am deeply sorry,” Webster’s email read, adding later that the school has the “utmost respect for what the uniform represents.”

Webster said the initial request was out of concern for some students who come from countries experiencing conflict and who she said expressed discomfort with images of war, including military uniforms.

Her email said any students who have concerns about seeing Armed Forces members in uniform can be accommodated in a way that makes them feel safe, but she provided no further details in the message.

Webster did not immediately respond to a request for comment.

At a news conference Friday, Houston said he’s glad the initial request was reversed but said he is still concerned.

“I can’t actually fathom how a decision like that was made,” Houston told reporters Friday, adding that he grew up moving between military bases around the country while his father was in the Armed Forces.

“My story of growing up in a military family is not unique in our province. The tradition of service is something so many of us share,” he said.

“Saying ‘lest we forget’ is a solemn promise to the fallen. It’s our commitment to those that continue to serve and our commitment that we will pass on our respects to the next generation.”

Liberal Leader Zach Churchill also said he’s happy with the school’s decision to allow uniformed Armed Forces members to attend the ceremony, but he said he didn’t think it was fair to question the intentions of those behind the original decision.

“We need to have them (uniforms) on display at Remembrance Day,” he said. “Not only are we celebrating (veterans) … we’re also commemorating our dead who gave the greatest sacrifice for our country and for the freedoms we have.”

NDP Leader Claudia Chender said that while Remembrance Day is an important occasion to honour veterans and current service members’ sacrifices, she said she hopes Houston wasn’t taking advantage of the decision to “play politics with this solemn occasion for his own political gain.”

“I hope Tim Houston reached out to the principal of the school before making a public statement,” she said in a statement.

This report by The Canadian Press was first published Nov. 8, 2024.

The Canadian Press. All rights reserved.

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Saskatchewan NDP’s Beck holds first caucus meeting after election, outlines plans

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REGINA – Saskatchewan Opposition NDP Leader Carla Beck says she wants to prove to residents her party is the government in waiting as she heads into the incoming legislative session.

Beck held her first caucus meeting with 27 members, nearly double than what she had before the Oct. 28 election but short of the 31 required to form a majority in the 61-seat legislature.

She says her priorities will be health care and cost-of-living issues.

Beck says people need affordability help right now and will press Premier Scott Moe’s Saskatchewan Party government to cut the gas tax and the provincial sales tax on children’s clothing and some grocery items.

Beck’s NDP is Saskatchewan’s largest Opposition in nearly two decades after sweeping Regina and winning all but one seat in Saskatoon.

The Saskatchewan Party won 34 seats, retaining its hold on all of the rural ridings and smaller cities.

This report by The Canadian Press was first published Nov. 8, 2024.

The Canadian Press. All rights reserved.

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Nova Scotia election: Liberals say province’s immigration levels are too high

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HALIFAX – Nova Scotia‘s growing population was the subject of debate on Day 12 of the provincial election campaign, with Liberal Leader Zach Churchill arguing immigration levels must be reduced until the province can provide enough housing and health-care services.

Churchill said Thursday a plan by the incumbent Progressive Conservatives to double the province’s population to two million people by the year 2060 is unrealistic and unsustainable.

“That’s a big leap and it’s making life harder for people who live here, (including ) young people looking for a place to live and seniors looking to downsize,” he told a news conference at his campaign headquarters in Halifax.

Anticipating that his call for less immigration might provoke protests from the immigrant community, Churchill was careful to note that he is among the third generation of a family that moved to Nova Scotia from Lebanon.

“I know the value of immigration, the importance of it to our province. We have been built on the backs of an immigrant population. But we just need to do it in a responsible way.”

The Liberal leader said Tim Houston’s Tories, who are seeking a second term in office, have made a mistake by exceeding immigration targets set by the province’s Department of Labour and Immigration. Churchill said a Liberal government would abide by the department’s targets.

In the most recent fiscal year, the government welcomed almost 12,000 immigrants through its nominee program, exceeding the department’s limit by more than 4,000, he said. The numbers aren’t huge, but the increase won’t help ease the province’s shortages in housing and doctors, and the increased strain on its infrastructure, including roads, schools and cellphone networks, Churchill said.

“(The Immigration Department) has done the hard work on this,” he said. “They know where the labour gaps are, and they know what growth is sustainable.”

In response, Houston said his commitment to double the population was a “stretch goal.” And he said the province had long struggled with a declining population before that trend was recently reversed.

“The only immigration that can come into this province at this time is if they are a skilled trade worker or a health-care worker,” Houston said. “The population has grown by two per cent a year, actually quite similar growth to what we experienced under the Liberal government before us.”

Still, Houston said he’s heard Nova Scotians’ concerns about population growth, and he then pivoted to criticize Prime Minister Justin Trudeau for trying to send 6,000 asylum seekers to Nova Scotia, an assertion the federal government has denied.

Churchill said Houston’s claim about asylum seekers was shameful.

“It’s smoke and mirrors,” the Liberal leader said. “He is overshooting his own department’s numbers for sustainable population growth and yet he is trying to blame this on asylum seekers … who aren’t even here.”

In September, federal Immigration Minister Marc Miller said there is no plan to send any asylum seekers to the province without compensation or the consent of the premier. He said the 6,000 number was an “aspirational” figure based on models that reflect each province’s population.

In Halifax, NDP Leader Claudia Chender said it’s clear Nova Scotia needs more doctors, nurses and skilled trades people.

“Immigration has been and always will be a part of the Nova Scotia story, but we need to build as we grow,” Chender said. “This is why we have been pushing the Houston government to build more affordable housing.”

Chender was in a Halifax cafe on Thursday when she promised her party would remove the province’s portion of the harmonized sales tax from all grocery, cellphone and internet bills if elected to govern on Nov. 26. The tax would also be removed from the sale and installation of heat pumps.

“Our focus is on helping people to afford their lives,” Chender told reporters. “We know there are certain things that you can’t live without: food, internet and a phone …. So we know this will have the single biggest impact.”

The party estimates the measure would save the average Nova Scotia family about $1,300 a year.

“That’s a lot more than a one or two per cent HST cut,” Chender said, referring to the Progressive Conservative pledge to reduce the tax by one percentage point and the Liberal promise to trim it by two percentage points.

Elsewhere on the campaign trail, Houston announced that a Progressive Conservative government would make parking free at all Nova Scotia hospitals and health-care centres. The promise was also made by the Liberals in their election platform released Monday.

“Free parking may not seem like a big deal to some, but … the parking, especially for people working at the facilities, can add up to hundreds of dollars,” the premier told a news conference at his campaign headquarters in Halifax.

This report by The Canadian Press was first published Nov. 7, 2024.

— With files from Keith Doucette in Halifax

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