Vol. 44 No. 3 · 10 February 2022

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On the Court

Conor Gearty is right to say that the UK Supreme Court has lately adopted a more restrained approach to cases challenging the exercise of executive power (LRB, 27 January). He is also right that this marks an important change of judicial mood. But he trivialises the reasons for it when he attributes it to the advent of Lord Reed as president of the court in place of Lady Hale. In the process, he misunderstands the real significance of the change.

In the last few years there has been an almost complete turnover in the personnel of the Supreme Court at every level. In the three decades which began in about 1985, the appellate courts were dominated by a highly interventionist generation of judges. The generation that has succeeded them is well placed to look back on the achievements of their predecessors, and to review them in the light of experience. This is a perfectly normal process in the life of any deliberative institution.

The essential feature of the Supreme Court’s recent decisions on public law has been a renewed emphasis on the centrality of Parliament in our constitution, not just as the supreme legislative organ of the state but as the ultimate source of the political legitimacy of governments. Some of the more aggressive judicial interventions of the past have had the effect of appropriating to the courts the right to decide where the public interest lies. This approach has cut across demarcation lines which are fundamental to the democratic state. It is absurd to describe this as ‘legal formalism’. We are only a democracy because ministers are responsible to the elected Chamber of Parliament for the formation and execution of policy.

This was the real message of the two Miller decisions on Brexit, both of which were decided before Lord Reed became president of the court. Both of them arose out of attempts by the government to limit parliamentary scrutiny of the process of leaving the European Union. Both involved a profound examination of the roots of legitimacy in our informal constitution. Gearty applauds them, as I do. But he does not seem to appreciate that the centrality of Parliament in our constitution has implications not just for governments trying to escape parliamentary control but also for individuals and NGOs trying to challenge government policy in the courts.

What the Supreme Court has done is to require judges to have more regard than hitherto to the proper distribution of constitutional responsibilities in the state. Responsibilities which are conferred by law on ministers politically answerable to Parliament should not be shifted to judges politically answerable to no one. The function of the courts is not to review the social or economic merits of government policy. It is to determine whether it had power in law to act as it did, whether it has acted contrary to some principle of domestic law (including human rights law), and whether the decision-making process was legally defective. The Supreme Court has done nothing to undermine any of these basic principles of public law. If the decision-making process passes muster by those standards the fact that the judge may strongly disagree with the outcome is neither here nor there.

SC and CB, the Supreme Court decision in July 2021 which is the centrepiece of Gearty’s criticisms of the current court, is a classic illustration of the problem. It was an attempt by the Child Poverty Action Group to use the courts to force an increase in the level of financial provision for large families above that sanctioned by Parliament. It failed, essentially because the allocation of resources is a matter for Parliament and for ministers answerable to Parliament. As Lord Reed observed in his judgment, ‘the answer to such a question can only be determined, in a parliamentary democracy, through a political process which can take account of the values and views of all sections of society.’

Naturally, this will not satisfy Gearty. He believes that Parliament is the creature of the executive, a view which is hard to sustain in the light of recent history. He also believes, as he makes clear in his book On Fantasy Island, that policy decisions are better made in court than in a political forum, because court decisions are more likely to be based on evidence and rational argument. The difficulty is that in Gearty’s world there would be no place for democratic input into major social and economic decisions. The answer to governments that espouse objectionable social and economic policies is to vote them out or, better still, not to vote them in. But judges are not voted in and cannot be voted out. They should therefore be careful not to exceed their proper role.

Jonathan Sumption
London SE10

That Kind of School

Colm Tóibín’s review of John McGahern’s Letters mentions the school in Dublin that sacked him for his civil marriage to a foreign woman (LRB, 27 January). Belgrove National School, Clontarf, was the place. I went there from the age of four, in the 1960s, long after McGahern had gone, though the scandal was still muttered about by adults. The school was a cruelty house, a repurposed Victorian farmhouse with outside sheds for toilets. The sadistic culture was well thought-through: a small number of outsiders, children who didn’t fit, were focused on constantly for punishment. It brought the others into line.

McGahern taught in the boys’ section. My friend was a pupil then. He told me that McGahern often went off-syllabus with discussions of nature and literature that lit up the imagination. He did use the cane occasionally. In The Leavetaking, McGahern’s character remembers the ‘shock of the erection I got when first I beat a boy with a cane, taking pleasure in my supposed duty’. It was that kind of school.

Fiona O’Connor
London SE14

He mentioned her after all

Emily LaBarge writes that the critic Clement Greenberg didn’t ever mention Helen Frankenthaler – ‘his policy, he said, with former lovers’ (LRB, 16 December 2021). In fact Greenberg did mention Frankenthaler, years after their relationship had ended. For example, in ‘Louis and Noland’ (1960) he notes that ‘a large and extraordinary painting done in 1952 by Helen Frankenthaler, called Mountains and Sea, led Louis to change his direction abruptly.’ There are further mentions of her influence on Louis and Noland in that essay, but he cites her in other places too. Both his ‘Introduction to an Exhibition of Morris Louis, Kenneth Noland and Jules Olitski’ (1963) and ‘Post Painterly Abstraction’ (1964) are complimentary of her work.

Pete Gubbins
Sandbach, Cheshire

Traitor Nationalities

Sheila Fitzpatrick refers to the wholesale deportation of various national minorities in the USSR, beginning in the 1930s, and notes that ‘the practice continued after the war with the deportation and resettlement of “traitor” nationalities – Chechens, Ingush, Crimean Tatars and others’ (LRB, 2 December 2021). But these deportations took place during the war, not after it: late 1943 for the Karachais and Kalmyks; February 1944 in the case of the Chechens and Ingush; March 1944 for the Balkars; and May 1944 for the Crimean Tatars. The timing is significant. More than a year before the fall of Berlin, the Soviet leadership was diverting substantial resources that could have been used to fight the Nazis – including thousands of troops and freight trains – to the forced displacement of around a million of its own citizens. Those who survived were eventually allowed to return under Khrushchev. But for these predominantly Muslim groups, the collective trauma of deportation and exile was formative for their national identity, feeding into the nationalist movements which, as Fitzpatrick describes, emerged as the USSR was breaking apart.

Tony Wood
Princeton University

In Nicaragua

At least 328 people have been killed in Nicaragua since the political crisis began in April 2018, most of them at the hands of the government, but you wouldn’t learn this from John Perry (Letters, 27 January). Perry defends the detention of seven opposition candidates before the elections in November last year – after all, they hadn’t completed the paperwork, so technically they weren’t presidential candidates. And anyway, he goes on, all of them have been charged with crimes that would be recognised as such in other countries.

Six of the seven candidates are still in detention, along with more than a hundred other political prisoners. Medardo Mairena, whom Perry singles out for attention, has lost fifty pounds since he was detained in July 2021. Political prisoners have been kept in solitary confinement, deprived of light, water and food, and denied visits from their families for months at a time.

In recent years a range of new crimes, not internationally recognised, have been created to control dissent. Initially most protesters were charged under the terrorism law introduced in July 2018. In late 2020, three more laws were added. The foreign agents law proscribes contact with international organisations; the sovereignty law forbids any statement that damages the interests of the nation; and the cybercrimes law criminalises comments on social media that are classed as a threat to public order.

The suggestion that Chile’s president-elect, Gabriel Boric, will eventually realise he needs Ortega is also way off the mark. On 21 January Boric told the BBC that there was no chance of an alliance with Nicaragua. His new foreign minister, Antonia Urrejola, was rapporteur for Nicaragua at the Inter-American Commission on Human Rights until December 2021. In a statement to the Organisation of American States in June she noted that the Ortega regime was guilty of ‘crimes against humanity’, including ‘murder, deprivation of liberty, persecution, rape, torture and forced disappearance’.

Hilary Francis
Northumbria University, Newcastle

Sun Dance

Adam Phillips writes that the Crow ‘gave up their Sun Dance around 1875, about a decade before they were moved into their reservation’ (LRB, 6 January). In fact the Sun Dance never stopped. It was banned in America in 1884 but continued as a hidden practice until ‘permitted’ again in 1934. The right to practise the Sun Dance was finally guaranteed by the 1978 American Indian Religious Freedom Act.

The same happened in Canada. The Sun Dance was banned under the Canadian Indian Act of 1895, and ‘permission’ returned by the 1951 Amendment of the Indian Act. Here too the Sun Dance never stopped: it was practised in hiding and ‘permitted’ on Banff Indian Days to encourage tourism. For Canadian Plains nations including the Blood Tribe, the Sun Dance is still very much alive, still sacred and still important. The pandemic didn’t stop it either. It took place last summer, only with smaller gatherings and enhanced protections for Elders.

Kristy Trinier

No Offence to Florida

Sarah Resnick refers to California as the Sunshine State (LRB, 16 December 2021) That’s Florida. California’s nickname is the Golden State. To Californians, the confusion might prove unwelcome, politically and culturally. No offence to Florida, whose governor ensures that Covid-19 has the best opportunity to thrive.

Nico Harvey
Seattle, Washington

Blighted Plain

Jonathan Meades writes witheringly and with his usual style about Wiltshire (LRB, 6 January). He is wrong on one detail. Salisbury is not the only British city of its size with no by-pass. He cannot be familiar with Hereford, a city with ten thousand more inhabitants than Salisbury and at least as chocked with incompetent management and particulates. He would be very welcome to come and see for himself.

Rupert Marlow
Turnastone, Herefordshire

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