The Supreme Court case about Article 50 is now over, but the response to it in many quarters has suggesting a troubling misapprehension of the proper role of the judiciary in the constitution.
As a non-lawyer, my own coverage of the debate has necessary been hedged somewhat. I’m a constitutional conservative and so inclined to believe the dissenting minority judgement over the majority, as I find it more cogently argued and it tends to be supported by legal commentators I respect.
But I’ve seen several commentators, none of them lawyers, making comments along the lines of: “The Supreme Court has made the right decision, of course MPs should have a vote on Article 50. It’s Parliamentary sovereignty!” I’ve also had the activist sort of QC accuse me of supporting the “ancien régime” for my suspicion of the majority ruling.
Set aside for the moment that, as I explained in an earlier article, the executive is as much a part of Parliament as the House of Commons and thus supporting the sovereignty of the institution as a whole doesn’t place one on any given side in a dispute between its constituent parts. Such attitudes are wrong on a more fundamental level.
In short, it’s not the role of any of our courts to hand down that law which they or we feel ought to exist. Their proper function is to uphold the law as it is. To do else is to usurp the privileges of the political elements of the constitution, whose role it is to decide what laws we have.
So whether or not you or I individually feel that MPs ought to have a vote on Article 50 has absolutely nothing to do with whether or not the justices made the right call in the Miller case. It’s entirely irrelevant. What matters is its fidelity to the law: beware any defence of it, or attack on it, that deals in broad assertions or statements of principle.
My own disinclination towards the majority ruling doesn’t flow directly from my support for the prerogative powers for the executive – although being human, that undoubtedly plays some part in it – but from my belief that reaching it required improper interpretative adventurism on the part of the justices who produced it. I would be bound to raise the same objections were they to twist the rules in support of a point that I favour.
For their part the justices themselves will, I’m sure, maintain that their role is to uphold the proper processes of the law, not seek the right outcomes, although the strength of that conviction likely varies from judge to judge.
Yet that so many of those commentators whom I noticed endorsing the judgement did so without such hedging about their own legal understanding suggests that their belief that the Supreme Court got it right rests in their support for the outcome, rather than any particular consideration for the underlying law.
We might also include this articles such as this one by Fraser Nelson, another non-lawyer, which breezily portray as entirely straightforward a case sufficiently complex that three of the UK’s most senior judges found against it. That too suggests that political sentiment is the underlying motivation.
Regardless of your view on the proper balance of power between the executive and the legislature in this particular case, such a shift in public attitudes towards the courts bodes ill for the proper functioning of the constitution. If a larger number of properly political questions are going to end up in court, it’s more important than ever that we assess trial outcomes by their fidelity to the law as written, and not by whether or not they deliver political outcomes we like.
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It takes more than an activist judiciary and legal establishment to effect what Policy Exchange calls “the judicial capture of political accountability”. Legislators have colluded in this process by farming their rightful authority out to the judiciary, amongst other external groups, sometimes in ways that will require judges to make value judgements quite inappropriate to their position. It will only accelerate if commentators, and by extension the public, start to expect such interventions by the courts.
Britain doesn’t have the sort of openly partisan judicial wrangling we see at the upper levels of the American system, but that is due in large part to the different role played by our courts in a system where a sovereign Parliament, rather than a hallowed document, is the supreme element of the constitution.
If we shift towards the American model, with judges increasingly intervening in the political and legislative process, it is both likely and just that political interest in, and accountability for, judicial appointments should follow.
Those who wish to avoid that face a difficult challenge, and must overcome the engrained habits of many of our judges, lawyers, and legislators. The least they can do is avoid making the same mistake themselves. We must be clear-eyed about judicial adventures, even – especially – when we like where they take us.
Henry Hill is a freelance writer and assistant editor of ConservativeHome.