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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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Politics

NDP caving to Poilievre on carbon price, has no idea how to fight climate change: PM

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OTTAWA – Prime Minister Justin Trudeau says the NDP is caving to political pressure from Conservative Leader Pierre Poilievre when it comes to their stance on the consumer carbon price.

Trudeau says he believes Jagmeet Singh and the NDP care about the environment, but it’s “increasingly obvious” that they have “no idea” what to do about climate change.

On Thursday, Singh said the NDP is working on a plan that wouldn’t put the burden of fighting climate change on the backs of workers, but wouldn’t say if that plan would include a consumer carbon price.

Singh’s noncommittal position comes as the NDP tries to frame itself as a credible alternative to the Conservatives in the next federal election.

Poilievre responded to that by releasing a video, pointing out that the NDP has voted time and again in favour of the Liberals’ carbon price.

British Columbia Premier David Eby also changed his tune on Thursday, promising that a re-elected NDP government would scrap the long-standing carbon tax and shift the burden to “big polluters,” if the federal government dropped its requirements.

This report by The Canadian Press was first published Sept. 13, 2024.

The Canadian Press. All rights reserved.

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Quebec consumer rights bill to regulate how merchants can ask for tips

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Quebec wants to curb excessive tipping.

Simon Jolin-Barrette, minister responsible for consumer protection, has tabled a bill to force merchants to calculate tips based on the price before tax.

That means on a restaurant bill of $100, suggested tips would be calculated based on $100, not on $114.98 after provincial and federal sales taxes are added.

The bill would also increase the rebate offered to consumers when the price of an item at the cash register is higher than the shelf price, to $15 from $10.

And it would force grocery stores offering a discounted price for several items to clearly list the unit price as well.

Businesses would also have to indicate whether taxes will be added to the price of food products.

This report by The Canadian Press was first published Sept. 12, 2024.

The Canadian Press. All rights reserved.

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Youri Chassin quits CAQ to sit as Independent, second member to leave this month

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Quebec legislature member Youri Chassin has announced he’s leaving the Coalition Avenir Québec government to sit as an Independent.

He announced the decision shortly after writing an open letter criticizing Premier François Legault’s government for abandoning its principles of smaller government.

In the letter published in Le Journal de Montréal and Le Journal de Québec, Chassin accused the party of falling back on what he called the old formula of throwing money at problems instead of looking to do things differently.

Chassin says public services are more fragile than ever, despite rising spending that pushed the province to a record $11-billion deficit projected in the last budget.

He is the second CAQ member to leave the party in a little more than one week, after economy and energy minister Pierre Fitzgibbon announced Sept. 4 he would leave because he lost motivation to do his job.

Chassin says he has no intention of joining another party and will instead sit as an Independent until the end of his term.

He has represented the Saint-Jérôme riding since the CAQ rose to power in 2018, but has not served in cabinet.

This report by The Canadian Press was first published Sept. 12, 2024.

The Canadian Press. All rights reserved.

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