THE BLOG

Brexit, Trump, The People And Their Judges

16/11/2016 16:34
Bloomberg via Getty Images

Democracy, it seems, is alive and well.

By voting to leave the European Union and in electing Donald Trump, voters in the UK and US have exercised their power in ways that shocked parts of the political establishment and the media. Both events, if anything, beg the question: have the people really been getting what they want?

It may, therefore, come as no surprise that the High Court's ruling on Article 50 has stimulated debate on where sovereignty and power really lie. Is it with the people, the Government, Parliament or the judiciary? It is well worth asking, as the answer reveals much about how our political system functions. The shame of it is that newspaper editors, and even some politicians, have used the judgment to paint the judiciary as the pantomime villain, rather than as an opportunity to debate the checks and balances inherent in the British political system.

Following the Government's defeat in the High Court, which ruled that the Prime Minister cannot trigger Article 50 using the royal prerogative and avoid Parliament, the three judges were labelled 'enemies of the people' and stand accused of thwarting the democratic process.

Those making these accusations, including a national newspaper editor and politicians, are guilty of a fundamental misunderstanding.

Far from thwarting the democratic will of the people, the judges were acting as a check on the executive. As the court clearly stated in the judgment, it was not concerned with the merits of withdrawal from the EU. This was the subject matter of the referendum and it is a political question. The court case was about the constitutional processes for triggering Article 50. None of the parties, including the Government, denied that the court had jurisdiction to determine this issue. Debate about the contents and effect of the decision is healthy.

One of the pillars of democracy is the rule of law - the principle that everyone stands under the law, including the Government - and if Governments fail to act lawfully, they undermine democracy and the legitimacy of Parliament, elected by the people to make the law. The question here was not whether to trigger Article 50 or whether to leave the EU, but rather whether the executive arm of Government is able to do so without Parliament's assent.

So, when the judiciary was attacked following the Article 50 judgment, it was the responsibility of the Lord Chancellor to support the principle of the rule of law. Further, the role of Lord Chancellor is distinct from the role of Secretary of State. As Lord Chancellor, a role often described as the conscience of the Government, she has a statutory duty to defend the independence of the judiciary. Defending the judiciary is not about restricting the freedom of the press, it is about engaging with the press. In failing to respond quickly, and emphatically, two problems emerged.

First, was promotion of the idea that the judges were, in reaching their conclusion on the law, seeking to frustrate the 'will of the people'. Aligned to this was the suggestion that the role of the judiciary is to promote the will of the people, or in this case, where the executive was seeking to trigger Article 50 without asking Parliament, the will of the executive. One only needs to look at countries where judges bend the law to please the government of the day, to see how corrosive this can be to public confidence in democracy. In the UK we are fortunate enough to have judges who act independently. As a result, our parliamentary democracy and individual rights are better protected.

For example, when the Government unlawfully held nine terror suspects in Belmarsh prison indefinitely and without trial, it was, when the matter was brought before them, the judiciary that intervened. When people challenge the closure of local school, hospitals and care homes, or resist the installation of wind farms near their homes, it is to the judges they turn to determine whether the Government has acted lawfully. We might not agree with every decision made, but an independent judiciary is the best guarantee that the rights of individuals will be faithfully upheld.

The underlying question seems to be a concern among some that Parliament may not allow the executive to trigger Article 50. This is an important political question, namely what will Parliament do if faced with a vote on triggering Article 50, but it is misleading to incite substantial distrust in the judiciary as a result.

Second, the Government's belated response to the attack by the media and others posed a threat to the UK's global reputation for upholding the rule of law and for the independence of its judiciary, both of which are vital to our economic well-being. When I speak with lawyers in other jurisdictions around the world, it is our judiciary that they particularly praise for its professionalism and independence. We should not underestimate the role this plays in the UK's economic success, both for the City and for making our region an attractive place to do business. Trust in our legal and financial systems is probably the single biggest factor in attracting investment and, as the economic implications of Brexit take hold, that trust and reputation will be more important to safeguard and promote than ever.

The issues we in the UK face in the wake of the referendum are profound. They will determine the course of this country for decades to come. Defending the role of judges is not about trying to limit this debate. If anything, the opposite is true. The principles of freedom of speech from which we have benefited for centuries do not depend on EU law, but on common law rights which have been recognised and applied by judges acting fearlessly and impartially in fulfilling their role under our constitution.

Far from being enemies of the people, judges are in fact among their most faithful of servants.

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