Attacks on the Article 50 judges are a disgrace

In the wake of the dramatic Article 50 judgment various Brexiteers have been venting their feelings.

On the front page of today’s Telegraph Nigel Farage fulminates against “unelected judges” and the “rich elite” that took the Article 50 case to court. Ian Duncan Smith accuses the judges of an “enormity” which “takes judicial activism to a new level.” Jacob Rees-Mogg says they have caused an “unnecessary constitutional clash.” Daniel Hannan compares Remainers to Western Communists who backed the Molotov-Ribbentrop pact: “they have gone from deriding parliamentary supremacy as a Victorian hang-up to posing as its defenders.” In a thundering editorial the Telegraph declared:

The Court cannot simply pretend that the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote …..”

And these contributions have been mild compared to others. “Enemies of the people!” screamed the front page of the Daily Mail, an absurd and inflammatory headline that could have graced a 1923 Izvestia story about social parasites and Menshevik counter-revolutionaries in Leninist Russia; while Suzanne Evans, supposedly the more moderate of the UKIP leadership candidates appeared to call for the dismissal of the Lord Chief Justice.

It is not uncommon for aggrieved litigants to hurl abuse at judges who have given judgments that they don’t like. The wise judge will generally sigh indulgently, refuse to be drawn into any further argument and wait for the storm to die down. Being unpopular is all part of the job.

But this is different. The people doing the accusing are not hot-blooded aggrieved litigants. They are, in the main, politicians and journalists who should know better than to undermine the independence of the judiciary.

The confidence that judges can decide cases on the basis of law and evidence, without (as the judicial oath puts it) “fear or favour,” is an essential attribute of any functioning democracy.

Calling for their dismissal because you disagree with their decision is to descend some way down a slippery slope that leads to autocracy: once judges fear for their livelihoods if they rule against the state, the government will have acquired the ability to exert improper pressure in any case in which it has an interest.

What “enormity” – I assume that Mr Duncan-Smith uses the word correctly to mean a “terrible sin” – have the judges committed to justify this vitriol? What outrageous judicial activism necessitates their dismissal? How have they brought about a constitutional crisis?

The answer is that they were asked to rule, and so they duly ruled, on a point of constitutional law to which the answer was not immediately clear. Unfortunately, when judges are asked a question of law they cannot say “we are very sorry, we would like to be able to help you but the answer to your question has political ramifications so we are afraid we can’t answer it, try your local Citizens Advice Bureau.” They have to decide cases that litigants put in front of them, even if whatever answer they give is bound to be immediately denounced as “political interference” by the losing side. Had the court ruled in the Government’s favour that decision could – and probably would – have been condemned as a craven dereliction of their duty to restrain the ambit of the Royal Prerogative within its proper boundaries.

The main populist thrust of the attack on the judges has been that they are “out of touch with public opinion,” and in particular that they made their decision without reference to the referendum result. It is a spectacularly bad point. Government lawyers – undoubtedly correctly – accepted that the judges were under a duty to ignore the referendum result. “Public opinion” however it is judged, can play no part in deciding what the law is.

Amidst all this there is one person who is under a statutory duty to“uphold the independence of the judiciary. But where has the Lord Chancellor, Liz Truss, been? If she has been out in the radio and TV stations supporting the judges against these attacks on their integrity and independence, then I certainly haven’t noticed it. That’s a bit feeble, really; she’s not doing her job. Especially when just the day before the Daily Mail had kindly agreed to print an article by Ms Truss on her prison reform plans.

The British Constitution rests on a number of pillars: parliamentary sovereignty is one and the independence of the judiciary is another. Those Brexiteers who are now attacking the judiciary fought the referendum on a platform of returning lost sovereignty to Parliament, and repatriating lost powers from European judges. They do not seem to appreciate the irony that they are now agitating – in language that is as intemperate as it is ignorant – for the restricting of that very sovereignty and the emasculation of the British judiciary.

Thank goodness our judges will pay them no attention whatever.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

24 thoughts on “Attacks on the Article 50 judges are a disgrace”

  1. Agree with the constitutional precepts but the ‘independence of the judiciary’ has been compromised for long by its own ‘populist’ sophistry re the erosion of justice in historical sex offence cases and ‘parliamentary sovereignty’ has been marked by a supine adherence to dogma or lack of interest in any idea of the principles of justice as it might impact on the innocent. Thus by a pincer movement of dogmatism have both the judiciary and parliament created a callous system of injustice and idiocy that we are supposed to applaud? The rule of law is only as good as its principles are upheld across the board. Where to look for in reform? The worry is that so many ‘antis’ are blind to this institutional corrosion too. But I can’t, in all honesty, doff my cap to the likes of LCJ Thomas.

    1. If this judgement is correct, then Scotland can also ignore the result of it’s referendum, and a vote taken in the Scottish parliament to leave the UK can now take place?

        1. Wouldn’t it also mean that a Scottish Referendum result would be subject to parliamentary approval and could be blocked or varied in terms accordingly? So Westminster decides for the Scots on the grounds that it affects citizens’ rights in law both Scots and the rest of us?

  2. I think that this reaction largely springs from an ignorant public who anticipated that the Brexit Referendum sprang fully formed into Law and also a Prime Minister who does not realise that the use of the Royal Prerogative could not be satisfied in these circumstances where there was existing Statute. Add to this, the infuriating and febrile gutter press and you have the situation which now pertains.

    The judges were doing the job which the Pro Brexit camp were demanding, that Parliament should be sovereign. That is partially what leaving the EC is all about, yet when these dicta are applied to each and every situation. People are crying foul. The judges are to be congratulated for doing the jobs for which they are appointed; this is what the rule of law is all about but where I would ask is the reasonable man in all this; possibly sitting in the crashed Clapham omnibus.

    1. Yes, but is Parliament Sovereign yet?

      Or are we still part of the EU, where judges would look at the intention of the act, what the Minister said in introducing it, and what the official literature said was going to happen?!

  3. The judges kicked the can ‘upstairs’ to the Supreme Court. If the behaviour of the judiciary in general to Michael Gove when he was Justice Secretary as reported are true then judges have brought themselves to this point. I think that there is a general view that the courts are out of tune with the society they are supposed to serve. Gagging orders is just one example I can think of. I disagree with you on this post entirely. The PEOPLE were given the job by Parliament to make a decision and they made it – to LEAVE and the courts MUST respect that decision. Parliament can vote on the deal at the end but invoking Article 50 without a parliamentary vote must happen. That was what the referendum was about!

    1. The court quite specifically didn’t comment on whether we should leave. The referred to constitutional law and applied it to the process of leaving. Perhaps you can explain what’s wrong with that.

  4. I am grateful that this site is here. I am unable to subscribe real money as I am in my 80’s and not particularly in the best of health, however, I despair at the gutter press and ignorance that exists, plus, the Machiavellian politicians that are hell bent on long term power and rely on the public ignorance to attain fame and glory. They would consider judges as their enemy because Judges and our legal system protect this country from the evils that are developing. So! thank you

    1. Thank you Roger, what a kind comment. And don’t worry about not subscribing, Almost nobody does! Which is not to say I’m not very grateful to the few who do.

  5. How the Government Lost
    NOVEMBER 3, 2016 /
    Today the High Court handed down judgment in the Article 50 litigation, and the court held that the government does not have the prerogative power to give notice under Article 50 of the Treaty of the European Union. Legislation to do so would therefore be required. I am as certain today as I was back in June that this decision is incorrect. The purpose of this post is to explain how the government managed to lose a case it should have won.
    How the case was argued
    The government argued, rightly, that the entering into and withdrawal from treaties are acts performed by the government under its prerogative powers. Prerogative
    powers may be removed by legislation, but no words in the European Communities Act 1972 or elsewhere did so. As a result, such powers continued and the government could invoke Article 50 without more ado.
    [That this was, startlingly, the argument as put, see paragraph 80 of the judgment, Part II and III of the government’s skeleton argument, and the oral argument at various points (eg pp 88).]
    The claimants argued that a large number of rights created by United Kingdom statutes, principally the European Communities Act 1972, would be abrogated if the United
    Kingdom withdrew from the European Union. It is a fundamental principle of our constitution that rights created by Parliament cannot be taken away by the government. Necessarily therefore, the unfettered exercise of prerogative power could not operate without prior legislative approval. The usual unfettered exercise of such prerogative power could no longer obtain.As presented, the case is easy and obvious: the government loses. The idea that the government possesses the power to abrogate our rights, unless there is an
    express statutory provision taking away its power to do so, is absurd.

    How the case should have been argued

    In order to understand the law it is necessary to understand that there are two bodies of law in play. One is the domestic law of the United Kingdom. The other is international law which binds states. EU law, as such, is of the latter kind. It arises by virtue of agreement between
    the Member States. Such law is given effect into United Kingdom law by s2(1) of the European Communities Act 1972.
    So, it is a necessary condition of any such rights within UK domestic law that they exist under EU law. The rights we have under EU law vary overtime. These changes do not
    require fresh legislation but are given effect by s 2(1) (“from time to time”). The European Communities Act differs from other legislation in that EU law that is incorporated under it overrides any domestic law with which it is in conflict.

    Article 50 is part of EU law. All of EU law as it applies to the UK is contingent on Article 50 not being invoked by the UK and the expiry of a two year period. This in turn means that all of EU law as incorporated into UK domestic law is similarly contingent. (Lawyers describe these conditions as being “conditions subsequent”: they cease to apply upon the happening of a future event.)
    Once Art 50 is invoked, and two years expire, EU law ceases to apply to the United Kingdom at the international level. The only possible party that could give such notice is the
    government. It is the only actor in international law. At a domestic law level such rights etc cease to apply because of the European Communities Act. The exercise of the prerogative does not overturn or abrogate the rights created by the European Communities Act. Rather the Act itself states that these rights cease to apply.The occurrence of a condition bringing a right to an end is not the same as overruling that right.

    The Appeal
    If the case is properly argued, the government should win any appeal to the Supreme Court. It is astonishing that they have failed to do so so far. (The correct argument is
    just about discernible in the skeleton, at around paragraphs 36-37.)

  6. The three pillars of our constitution demand that though each is independent, to a degree, but, each need to keep an eye on the others. Parliament can block the excesses/wrongs of the executive, the people (perhaps another arm of of the constitution can kick out both the MP’s and the executive).

    But, who keeps an eye on the judiciary (Yes, these days it’s the judiciary). Back in 1703 is was deemed the job of Parliament to oversee the role of the judiciary because it was recognised that the absolute power of the King was effectively being replaced by another possible form of tyranny (though more subtle perhaps), the judiciary.

    But, there is not a select committee that oversees the judgments of the judges nor is there anything that oversees whether or not the judges are more or less interpreting the will of the people through Parliament and the way that Parliament has written its Acts.

    I’ve come across a several judges who on the face of it have, by any normal measure, been dishonest in the way that facts have been used or the law been ignored or twisted. They did not “err” they were most definitely dishonest and bias. So, please do not tell me that the Rule of Law is not influence by the judges’ own personalities and backgrounds, for example.

    Didn’t Denning say something along the lines that the appearance of justice and the appearance of an independent judiciary was more important than hanging a few innocents. The press are pretty hopeless, especially these days, when less investigative journalism is alive, and then it is only really likely to get behind a mass movement, such the Hillsborough. The police cover up and close ranks, all part of the justice system that Denning and other judges protect.

    And, doesn’t the barrister’s Code of Conduct state that the administration of justice shall not be brought into disrepute. That appears to suggest that you are all part of this club; the rule of law must be waylaid in courts up and down the land everyday, if my experience is an indication of the power of the judiciary taking advantage of its independence and lack of any meaningful oversight.

    The judges do not always apply the rule of law, they have agendas that mean they can be self-serving when they choose to be.

  7. I am not a lawyer and know very little law, but it always struck me from my history that the civil war had been very much about the balance of power between crown and Parliament. A few minutes on Google as this case was being prepared, and I found the 1689 Bill of Rights saying that James II had erred in trying to invoke his prerogative to overrule Parliament. Today I read someone saying Sir Edward Coke in the early 1600s had made a still earlier ruling to that effect.

    I find it concerning that such long established principles of our constitution seem to be under threat today, 400 years on. I voted to remain as I wanted the UK to move more quickly towards the sort of modern democratic institutions and constitutions that prevail in much of Europe, amongst other reasons. Instead an attempt to return to antiquity seems to be on offer.

  8. Actually the judgment highlights the fact that parliamentary sovereignty was ceded to the EU, or whatever it called itself at the time, by virtue of the 72 Act. The only get out clause is Art 50.
    There are many repercussions re this – not least the passivity engendered in Parliament which went way beyond the the EU issue.
    The referendum was the overdue ‘shockwave’. As much as the courts might quibble- and I don’t dispute the right – fact is something is rotten in the state of Westminster and the courts – so that a shake up (including reference to constitution) might re-invigorate political life and freedom.
    We don’t need brexit to salvage justice in the UK. But the EU has not contributed to this positively.

    And the sense that ‘everything is Europe led’ (whatever that might mean) hardly helps – including the confusion between the EU and the separate ECHR (Council of Europe inc Russia). But of course EU membership is predicated on subjection to ECtHR.
    What an entanglement! Given the unholy mess of the UK re justice, the first step of exiting the moribund EU seems reasonable. The courts can dance around. I can’t agree that that this was necessarily a disinterested judgment though I respect it in a fashion.

    But the idea that the judiciary are above contemporary bias is not true. And in that way are equally subject to media criticism as is everything else. In fact, may I say this is a wake up call?

  9. I thought the ruling was a great day for Britain and made me proud to be British regardless whether we were in or out of the European Union.

    All sides should accept they’ve had a roll to play creating this toxic pre and post referendum environment and try move on.

    People have always had tendencies to herd and develop irrational thoughts (for example see ‘The Madness of Crowds’ by Charles Mackay, 1841). What’s different in the last 10-15yrs is the degree of connectivity social media provides which allows you to find all sorts of other nutters immediately. It allows people to wallow in a one sided world. And since the traditional newspaper business model has been ruined by the internet so they too have to create ever more ridiculous / aggressive headlines to encourage click traffic for revenues. Of which this latest bunch are a particularly nasty example.

    There are many underlying drivers going on here but social media / internet is the catalyst. It creates a kind of “inequality” because social media amplifies a fat tail of negative commentary not present (yet) in every day discourse.

    Some people like to say ‘social media is not the real world’ … but in a generation it will be. Because people who today find it appropriate to use such language & behaviour will, within another generation, soon be holding positions of responsibility throughout society. We kind of have to turn off social media on our watch before it’s too late. Anyway, Happy Monday!

  10. Could someone please clarify these points for me:

    1) Are, or are not, at least one of the judges members of pro EU organisations, and, if so, how many of them?

    2) Would, say, a judge that was a hunt master, or a leading hunt saboteur, be allowed to hear a case involving hunting law, or hunt disruption?

    3) Have, or have not, there been previous cases involving the courts ruling on Governments’ use of the Royal Prerogative, without previous parliamentary agreement, to action EU treaty clauses, that affected th public’s rights?

    4) Did or did not the courts rule in favour of various Governments, or (those seeking) Parliamentary intervention?

    5) Did or did not the official Government literature, putting forward the cross-party consensus on the Referendum, clearly state the Government would action the majority decision, presumably with cross-party agreement?

    6) Did, or did not, the Foreign Secretary, clearly say, in the second reading of the Bill, which received the overwhelming support of almost all MPs, that the decision o the people would b carried out?

    I believe that traditionally, under the Common Law, judges don’t look at what was said in Parliament, never mind in an official leaflet, when interpreting statutes.

    And I understand that the referendum was about taking back control from the EU (and it’s supporters, which includes the Royal prerogative and government control, not just – maximum five yearly loan – Parliamentary Sovereignty):

    But can we pretend that, for the moment, we haven’t actually left the EU yet, we are still subject to EU Law, and our judges are still interpreting laws and statutes, especially those concerning the EU, it’s laws, and treaties, as though they were European, and not Commonwealth, judges, when discussing this issue?!

    Thanks in anticipation.

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