Brexit seems to have infiltrated every corner of the British state. Public debate is almost entirely dominated by our forthcoming withdrawal from the European Union.
The idea then that the Judiciary would come away from this process unscathed by the rising tide of populist opinion is misconceived. Of course, considering that a key focus of the Leave Campaign was the broad principle of sovereignty, it comes as no surprise that the role of our courts, in this new post-Brexit constitutional settlement, has become a topic of contested debate – if only among legal scholars. But the No-Man’s Land between the opposing trenches of Politics and Law, which has long been regarded by legal purists as particularly wide, now seems very narrow indeed. The notorious headline, which I am sure will be one for the history books, which declared three High Court judges to be ‘enemies of the people’ typifies the sort of political-legalism that emerged around the Supreme Court saga. So much so that the President of the Supreme Court himself – Lord Neuberger – felt the need to clarify the constitutional position of the highest appellant court in the land: politics have no place in the courtroom. The spotlight of public attention had turned, if only briefly, onto the Royal Courts of Justice, a gaze under which the Justices felt demonstrably uncomfortable. Perhaps, given the recent display of public disdain for unelected ‘elites’ and ‘experts’, the Supreme Court could be forgiven for feeling somewhat threatened by the crowds of protesters and the tabloid press. The murmurings of the House of Lords, from which the Law Lords only recently departed following the 2005 Constitutional Reform Act, may soon echo such fears.
But such an attitude is dangerous. The remit of the Judiciary is the Common Law, and the interpretation of parliamentary statute – a task, incidentally, which offers the ultimate expression of parliamentary sovereignty. Indeed, many reject the European Single Market as remaining a member means remaining under the jurisdiction of the Court of Justice of the European Union (CJEU, formerly the ECJ). Naturally, the decision of the Supreme Court has implications for politics, with a motion now to be passed to notify the EU of Britain’s triggering of ‘Article 50’. Politicians will no doubt draw on rhetoric and political pressure to push for scrutiny of the government, but it should be stressed that to subject the Judiciary to such forces would completely undermine the British constitutional orthodoxy. Governments come and go. Parliaments change in character. But the virtue of the courts is their relative consistency in an otherwise turbulent constitutional environment. Even the Executive must abide by the law, whilst wielding the power to change it.
Questioning the benefits of plebiscite-democracy as opposed to the more representative, parliamentary model which Britain has adopted is a legitimate topic for debate; the growing use of referenda in recent years is particularly advantageous if the ultimate goal of democracy is regarded as the rule of the majority. Indeed, the differing schools of thought on whether an MP acts as trustee or representative will undergo their litmus tests in the coming weeks. But democracy must be underpinned by the Rule of Law. It remains to be seen whether the uproar over judicial decision-making was simply a flash in the pan, or a new idiosyncrasy of the post-Brexit age. Nonetheless, we should bear in mind that faith in the Judiciary, and by extension the very fabric of the British state, is a beam upon which our democracy is built. To bring this into question, especially as a means to a political end, would be a very unwelcome step.
by Eamonn Lynch-Bowers, Co-President
If you would like to get in touch with the Division or any of the writers on the blog, please tweet @UCL_LWOB, email lwobstudent.ucl@gmail.com or leave a comment below!
by Eamonn Lynch-Bowers, Co-President
If you would like to get in touch with the Division or any of the writers on the blog, please tweet @UCL_LWOB, email lwobstudent.ucl@gmail.com or leave a comment below!
