Our judges are great. Let’s see what they say on Article 50

Anyone who enjoys intellectual debate will pray that the counsels of caution do not prevail.

BY Bruce Anderson   /  21 November 2016

Anyone who enjoys intellectual debate will pray that the counsels of caution do not prevail. The Government is being advised to drop its appeal against the Lord Chief Justice’s ruling on withdrawal from Article 50, and that may be the sensible course. An appeal would encourage unseemly populist agitation against the judiciary, which might help Ukip to revive. Moreover, the Government could well lose. Yet if there were no appeal, David Neuburger, Jonathan Sumption and other luminaries would lose an opportunity to give their opinion. That would be a loss, whatever their verdicts.

As for the insensate populists and the cruder tabloids, a Government which cannot face them down is not worthy of the name. Although the Court of Appeal judgment requires concentration, it is accessible to the layman and the point at issue is clear. As a result of the constitutional arguments of the Seventeenth Century – including those which occurred on the battlefield – it was established that the Royal Prerogative cannot be used either to make laws or dispense with them. That has remained true in the intervening centuries, while that Prerogative was exercised by the Crown in Parliament, with an increasing emphasis on Parliament. But it can be used to make or unmake treaties, to declare war and to send the armed forces into battle. Article 50 would have profound legislative consequences. So is it merely a treaty matter or is it tantamount to legislation? That is surely a matter on which highly intelligent persons can take differing views. A couple of weeks ago, my colleague Gerald Warner tried to impugn the Judges’ intellectual honesty. As readers will be aware, Gerald himself is a man of impeccable integrity, which  reinforces his moral and intellectual rigour. On this occasion, Homer nodded: a rare – a unique – lapse. We are fortunate in our judiciary, as the new Lord Chancellor, Elizabeth Truss, belatedly recognised. The Lord Chancellor is the judiciary’s political shield. She did speak out, yet she should have been quicker. She has many qualities. But her job involves great responsibilities. She is new to it, and that showed. Let us hope that it too was a unique lapse.

Anyway, I want to find out what Lord Sumption’s mighty intellect makes of all this, not to mention his colleagues’ contributions. The glory of the British constitution is that it evolves. Even so, it may be time to consider and clarify the nature of the Royal Prerogative. So if this Appeal went ahead, it could lead to a very important judgment.

This all raises a further point. Life expectancy is increasing and the Psalmist’s gloom about life after three-score and ten has been refuted. Many people are working until a later age, in undiminished vigour. But there is an exception. Judges have to retire at Seventy. So my Lords Neuburger and Sumption are both coming to the end of their judicial careers, which seems ridiculous. It may be that Jonathan Sumption wishes to devote more time to his history of the Hundred Years War, and no doubt David Neuburger would be equally active. But if they would be happy to serve for longer, it is absurd that they should be prevented from doing so. Even though the Lord Chancellor is barely in her Forties, one hopes that she will see the need for a quick legislative change.