Unelected and independent
The number of politicians and journalists who seem wilfully ignorant of the role of the judiciary is downright frightening, writes John van der Luit-Drummond
The High Court has held the government does not have prerogative power to invoke article 50 without a vote by parliament, delaying the executive's plans to initiate Brexit without legislative approval. The prime minister has since accepted that an act of parliament will be needed to trigger the EU escape clause, should the Supreme Court uphold the judgment in December.
The Miller judgment is a victory, not just for parliamentary sovereignty, but for the independence of the judiciary, not that you would know it in the immediate aftermath of the ruling. The casual observer would be forgiven for believing the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales had committed an act of treason by handing power back to parliament.
The decision has been met with a torrent of abuse from unhappy Leave campaigners, and the elements of the media that support them. Hyperbolic front-page headlines and editorials have hysterically attacked the 'unelected liberal' '“ and 'openly gay', in respect of Sir Terence Etherton '“ judges who have ignored the will of 52 per cent of the people who voted in the referendum. Leaving to one side the confusion of many who mistakenly believe the court has actually torpedoed Brexit '“ instead of merely adding a democratic hurdle to its path '“ the ridiculous suggestion that our eminent and learned judges must ignore the law and accede to public opinion cannot pass without comment.
The UK judiciary, rightly revered the world over for its fairness, impartiality, and independence, does not exist to simply rubber stamp the plans of the executive or legislature, nor should it be cowed by mob rule. The principle of independence is central to the rule of law. Our judges must apply the law to the facts in the case before them, nothing more. This publication, or any other with a shred of credibility, shouldn't have to remind our elected representatives or media colleagues of this. Yet the number of politicians and journalists who seem wilfully ignorant of the role of the judiciary in our democracy is downright frightening.
UKIP MP Douglas Carswell has called for 'reform of judicial appointments'. His colleague and party leadership hopeful Suzanna Evans said the ruling was a 'power grab' and called for the right to sack 'activist judges' '“ no word yet on whether she would have them hung. And new Tory rent-a-gob David Davies MP railed against 'unelected judges calling the shots', adding inanely: 'This is precisely why we voted out.'
Our judges must be promoted to the bench on merit rather than ideology, and Solicitors Journal has previously highlighted the absurdity and potential dire consequences of an elected judiciary. To see proof of this, one need only look to the US, where the seat of Supreme Court Justice Antonin Scalia has remained unoccupied since his passing in February thanks to the political tug of war over who should replace him: a Republican-backed conservative or a liberal-leaning Democrat. To go down that road would be to destroy what makes our judges some of the best in the world.
The irresponsible and dangerous attacks on our senior judges add weight to the argument that those aspiring to political office should take a crash course in constitutional law before setting foot anywhere near where the laws of the land are created. They also do more damage to the rule of law than the right-wing commentariat purport this ruling does to democracy.
It is ironic that the plans of the Leave camp have been put temporarily on hold, not by the interference of Brussels bureaucrats or foreign jurists sitting in Luxembourg, but by our own home-grown judges, whom Brexiters demanded be the final arbiters on matters of UK law.
John van der Luit-Drummond is deputy editor of Solicitors Journal