Brexit: Judicial independence and the Bill of Rights

At the beginning of November three senior judges, sitting as a Divisional Court of the High Court, made a ruling in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The Lord Chief Justice, Lord Thomas, the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales unanimously ruled that parliament – rather than the prime minister by use of prerogative powers – would need to trigger article 50 in order to begin the UK’s exit process from the European Union.

The instant reaction from three leading British newspapers was to give the judges a front-page roasting in the form of blazing angry headlines: ‘Enemies of the People’ thundered the Daily Mail, ‘The judges versus the people’ declared the Daily Telegraph, and ‘Who Do You Think EU Are?’ asked the Sun.

Such attacks on senior judges serve to exacerbate what is an already turbulent period in our political history. Unprecedented in modern times, they have left many lawyers in shock at the degree of vilification over a judgment which was all about proper process and not about party politics. Our unwritten constitution allows for a fully independent judiciary and the rule of law for very good reasons. We forget them at our peril.

As Robert Bourns, the president of The Law Society, put it, ‘Attacks on the judges simply because they were doing their jobs, do our country no credit… It is part of the role of lawyers to defend unpopular causes and there has been an increasing narrative in recent months that seeks to conflate the jobs solicitors and barristers do with the causes they represent as part of our system of justice. The extension of this to disparaging and criticising judges is dangerous and damaging.’

Trying to exert political pressure on judges, or even worse, endeavouring to intimidate them, should be totally unacceptable in a civilised society. But what did the court actually decide? Contrary to what the headlines might suggest, their judgment had nothing to do with the referendum and whether or not it is binding: indeed, the government did not even attempt to argue that the referendum provided legal authority for giving the article 50 notice. The case turned on whether giving such notice effectively changes the law enacted by parliament.

The government has already accepted that the notice automatically brings about the end of UK membership and is irrevocable. The court found that this changes the legal rights of UK citizens, and any Brexit agreement with the EU would also have legal effects inside the UK.

The authority of government to make (and unmake) treaties is part of the royal prerogative, the executive powers exercised by ministers, but ministers unambiguously do not have the power to change or override the law as enacted by parliament, unless authorised by parliament. One commentator criticised the judges’ reliance on ‘a 17th-century statute’. The statute in question is the Bill of Rights, the English constitutional settlement of 1689, which is as close as we get to a written protection of freedoms in English law. The Bill says: ‘The pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall… the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie… is illegall.’

What the three judges decided – and the point on which an appeal to the Supreme Court might succeed – is that the simple act of giving an article 50 notice has a legal effect that will amount to repealing or suspending the European Communities Act 1972, wholly or partially. Under our unwritten constitution, including the Bill of Rights, that needs an act of parliament.

Everyone would accept that the process of untangling UK laws from the EU will need at least one enabling act of parliament. The debatable point, now going to the Supreme Court, is whether it must be done now, at the beginning of the process. Does the article 50 notice, in and of itself, change domestic laws made by parliament, or does it, like many treaties, change international obligations in ways that need UK legislation to implement them, which comes later? Can ministers create a domestic legal mess by changing treaties at international level, which can be resolved by parliament later?

These questions should ultimately be decided by the judges of the highest court, not by the high-handed editors of the Daily Mail, the Daily Telegraph, and the Sun.

Chris Robinson is a solicitor at Excello Law @ExcelloLaw