Judges & 'Policitics'

by John Andrews, 11 November 2016

Brexit has caused much divide and discussion over the last four months and it shows no sign of easing. A week on from the decision of three senior judges ruling that MPs should have a vote on how the UK leaves the EU has received much public criticism.

This recent decision in the case of R (Miller) -v- Secretary of State for Exiting European Union has caused a furore in a variety of ways.

On 3 November 2016 the High Court ruled that the Secretary of State did not have power under the Crown prerogative to give notice pursuant to Article 50 of the treaty on European Union for the UK to withdraw from the European Union. That decision has drawn criticism from various quarters including personal criticism of the Judges themselves. There have been calls by politicians for the judiciary to be subject to political oversight as a result of apparently unwanted “interference” in the Government’s attempt to implement the will of the people. In turn this has created concern amongst the legal profession that the independence of the judiciary is under challenge and has not been provided with appropriate support from the Lord Chancellor or government.
Is our (unwritten) constitution under threat?

Brexit has caused much divide and discussion over the last four months and it shows no sign of easing. A week on from the decision of three senior judges ruling that MPs should have a vote on how the UK leaves the EU has received much public criticism.

This recent decision in the case of R (Miller) -v- Secretary of State for Exiting European Union has caused a furore in a variety of ways.
On 3 November 2016 the High Court ruled that the Secretary of State did not have power under the Crown prerogative to give notice pursuant to Article 50 of the treaty on European Union for the UK to withdraw from the European Union. That decision has drawn criticism from various quarters including personal criticism of the Judges themselves. There have been calls by politicians for the judiciary to be subject to political oversight as a result of apparently unwanted “interference” in the Government’s attempt to implement the will of the people. In turn this has created concern amongst the legal profession that the independence of the judiciary is under challenge and has not been provided with appropriate support from the Lord Chancellor or government.

Is our (unwritten) constitution under threat?

A cornerstone of our (unwritten) constitution is the independence of the judiciary. A vital but often overlooked provision of this is the power of the High Court to provide relief by way of judicial review in relation to (in this case) an executive which threatens to overreach its powers. Again in turn the acceptance by the executive of this area of jurisdiction and the rulings of the Court is again an equally fundamental aspect of our constitution.
It was overlooked in the press and elsewhere that the Government agreed the matter before the Court was “justiciable” i.e. a proper one for the Court to decide and the referendum result was advisory only. The matter was brought before the Court by a citizen of sufficient standing (in fact the Court noted that everyone in the UK will have their rights affected by withdrawal from the EU and it would not have been hard to identify people with sufficient standing). As the Government agreed the matter was justiciable, the Court was obliged to hear it and give a ruling.

It is stretching matters to suggest therefore that this was interference by the “unelected” Judges.
Those Judges sitting in the High Court comprised the Lord Chief Justice, the Master of the Rolls and a Lord Justice of Appeal; effectively the Court of Appeal sitting as the High Court. In making their decision the Judges sitting in the High Court and each of impeccable credentials, made reference to the protection of rights of citizens against the executive fought for and jealously guarded over hundreds of years. It is ironic in the circumstances that they have been described as “enemies of the people”.

Can we take any guidance from the US (written) Constitution?

The case for political oversight of the judiciary as a result of this decision is also unsettling as can be seen when looking across the Atlantic. The US (written) Constitution provides for the separation of powers but the appointment of justices to the Supreme Court is by appointment of the President with the advice and consent of the Senate. The Constitution sets no qualification for the service of justice and their tenure is indefinite “during good behaviour”. The system of appointment has been increasingly politicised to the extent that the vacancy left by the long serving conservative Justice Scalia has not been filled since his death in February 2016 due to the Senate Judiciary Committee declining proposed appointments by President Obama. The possibility of deadlock in the Court between the remaining four broadly liberal Justices and four broadly conservative therefore arises. Justices have often voted in partisan blocs and since the death of Justice Scalia there have been three occasions on which there has been a tie.

Three of the Justices in the US Supreme Court are aged 78 or over and the possibility of further vacancies beyond that following the death of Justice Scalia is a real one. Vice President Elect Mike Pence has said “Americans should know that while we are filling the presidency for the next four years, this election will define the Supreme Court for the next 40”. Whilst historically Supreme Court Justices have often surprised the Presidents who have appointed them, the increasing politicisation of the Supreme Court the final arbiter of the rights of citizens and the power of government is unattractive.

One questions whether such a direction is one that the citizens of the UK really want to travel in.

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John Andrews

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