This post has been contributed by Charlotte Crilly, Teaching Fellow for the Undergraduate Laws Programme.
Two of England’s most senior judges have recently spoken up to defend the independence of the judiciary, following criticisms that were made of judges in the press following the ‘Brexit case’ in the High Court (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)).
The High Court had ruled against the government, holding that it was for the UK parliament, not the government, to decide to trigger Article 50 of the Treaty on European Union and start the process of the UK leaving the European Union. The High Court’s decision was not well received by the press. One newspaper referred to the three judges in the case as ‘enemies of the people’ and the judges faced extensive criticism in much of the press for the decision they had made.
This caused a considerable amount of controversy over the role of the judiciary and judicial independence. Under section 3(1) of the Constitutional Reform Act 2005, the Lord Chancellor has a statutory duty to ‘uphold the continued independence of the judiciary’. Some commentators said that, in this case, the Lord Chancellor was too slow to intervene in the situation to defend the judiciary and its independence, and that when she did, it was ‘too little, too late’. The Bar Council issued a statement regretting that the Lord Chancellor had not condemned attacks on the judiciary and noting that ‘a strong independent judiciary is essential to a functioning democracy and to upholding the rule of law’ (see http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/november/bar-council-calls-on-lord-chancellor-to-condemn-attacks-on-judiciary/).
The Brexit case was appealed to the Supreme Court (R(Miller) v Secretary of State for Exiting the European Union) [2017] UKSC 5). Following the Supreme Court’s decision, the Lord Chancellor issued a press release very soon afterwards supporting the judiciary, saying that ‘our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms’ (see https://www.gov.uk/government/news/lord-chancellor-response-to-supreme-court-judgment).
In a radio interview, the President of the Supreme Court, Lord Neuberger, said that press criticism of the judiciary following the High Court’s decision risked undermining the rule of law. Although he recognised that politicians had been swift to defend the judiciary following the Supreme Court judgment, he considered that after the High Court hearing, politicians could have defended the judiciary and the rule of law more quickly and more clearly.
Lord Neuberger noted that undermining the judiciary undermined the rule of law as judges were ‘the ultimate guardians’ of it. He stressed the importance of the rule of law, saying that ‘the rule of law together with democracy is one of the two pillars on which our society is based. And therefore if, without good reason, the media or anyone else undermines the judiciary that risks undermining our society’.
The Lord Chief Justice, Lord Thomas, has also criticised the Lord Chancellor for her failure to defend the judiciary following the Brexit case. The Lord Chief Justice said that ‘I don’t think it is understood either how absolutely essential it is that we [the judges] are protected because we have to act as our oath requires us without fear or favour.’ He added that the Lord Chancellor had a duty to defend the judges and that she had ‘taken a position that is constitutionally, absolutely wrong.’
Judges will not usually speak out in public to reply to criticism against them, and no serving judges did so immediately following the attacks on them in the press. Lord Neuberger is due to retire in September, and Lord Thomas is also due to step down in the autumn, so this perhaps means they now feel able to voice their views.
For more information, please see the news reports on the BBC News website (at http://www.bbc.co.uk/news/uk-38986228) and the Guardian (at https://www.theguardian.com/politics/2017/mar/22/lord-chief-justice-castigates-liz-truss-for-failing-to-defend-judges).
If you’re interested in reading the original judgments in the High Court and the Supreme Court, you can find these on the BAILLI website, and there is a summary of the Supreme Court decision on the Supreme Court website (at https://www.supremecourt.uk/cases/uksc-2016-0196.html)
As a registered graduate entry LLB student, perhaps I should say this about the Miller case. I have read the High Court judgement and glanced through the Supreme Court judgement. Brexit is a highly charged political issue. At issue is judiciary legitimacy. UK’s EU membership has been a controversial political issue since 1972. And Brexit is a highly charged political issue. In a parliamentary democracy, law as enacted by Parliament is necessary a product of politics. But there is a significant difference between law being a product of politics and law being politics itself. The Miller case is without a shadow of a doubt law being politics itself. It is clearly a case of judicial overreach. It is a case of gross intellectual dishonesty on the part of the judiciary. The Lord Chancellor was absolutely correct in not defending the judiciary in the Miller case. If the judiciary’s conduct in the Miller case is so self-evidently beyond reproach, why need defending by the Lord Chancellor?
As a registered graduate entry LLB student, perhaps I should say this about the Miller case. I have read the High Court judgement and glanced through the Supreme Court judgement. Brexit is a highly charged political issue. At issue is judiciary legitimacy. UK’s EU membership has been a controversial political issue since 1972. And Brexit is a highly charged political issue. In a parliamentary democracy, law as enacted by Parliament is necessary a product of politics. But there is a significant difference between law being a product of politics and law being politics itself. The Miller case is without a shadow of a doubt law being politics itself. It is clearly a case of judicial overreach. It is a case of gross intellectual dishonesty on the part of the judiciary. The Lord Chancellor was absolutely correct in not defending the judiciary in the Miller case. If the judiciary’s conduct in the Miller case is so self-evidently beyond reproach, why need defending by the Lord Chancellor?
couldn’t agree with you more Anthony, but sadly this isn’t the narrative being pushed by the BBC, the Guardian, or seemingly this blog. It cannot be questioned that damage has been done to public confidence in the judiciary and also the wider constitutional balance, any more than it can be questioned that the EU is an authoritarian, anti-democratic institution of centralised government, incapable of either reform or of engendering security in growing swathes of the population.
It is worth noting that the aptly named John Thomas (Lord Chief Justice Baron Thomas of Cwmgiedd) is a founder member of the European Law Institute, based in Vienna, and dedicated to the stimulation of EU Law, policy and practice and ultimately enhancing european legal integration. No fear or favour there. Lord Neuberger’s wife regularly tweets her despair about Brexit (in spite of the court’s conduct guide’s exhortations to judges about political activity by close family members raising concerns about impartiality). Lady Hale, the deputy president revelled in telling a Malaysian audience that a comprehensive replacement for the 1972 act would be needed. She did this in advance of the case but it didn’t disqualify her from sitting, even though she had pretty much trespassed on parliamentary privilege. Physician, heal thyself.
At the end of the day the government’s contention was always that the government’s prerogative powers allow ministers to change the law. This isn’t an argument that would find much favour with any judge, not because of their personal political bias, but rather because the judges see their role as making certain ministers don’t act beyond parliamentary constraints. However the UK Supreme Court isn’t the US Supreme Court, no matter how much they might like it to be. In the UK system of government, the situation remains quite clear that no judge, prime minister, hedge fund manager who pretended to have a law degree, or other agents of the coercive cult that is the EU, can undo what Parliament has done.
As it happens, royal prerogative has been used by parliament to rob the british people of statutory rights for the past 50 years. Only when the Brexit vote left her feeling ‘physically sick’ did Ms Miller coincidentally develop her entirely impartial and apolitical interest in constitutional law.