Conservative MP Dominic Grieve said the criticisms over the High Court judges' decision were ‘horrifying’ and reminded him of ‘Robert Mugabe’s Zimbabwe’.Three High Court judges found that the government could not start the formal process - the triggering of Article 50 - of leaving the EU by using the royal prerogative alone, and would need the backing of Parliament. There have been many occasions in the past when judges have made ‘political’ decisions that have been unpopular with one group in society or another and they have faced the opprobrium of the public and not only were they regarded, to use the headline in yesterday’s Daily Mail, as ‘enemies of the people’ but especially in the thirteenth, fourteenth and fifteenth centuries paid with their lives. This was before the ‘independence of the judiciary’ was established in the early eighteenth century. Let us be clear, the appellate judiciary in the High and Supreme Courts are asked to make decisions on points of law and, while they may well have their own views on Brexit—it would be surprising if they did not—that was not the issue on which they were asked to adjudicate. They were simply asked whether the government had the right to trigger Article 50 without there being a vote in Parliament. To my mind rightly, they decided that the government could not use its executive powers because it would mean effectively overturning an act of Parliament, the domain of the House of Commons and House of Lords.
Labour has urged the government to come out and defend the three judges behind the controversial High Court ruling on the process of leaving the EU and called the silence of Justice Secretary Liz Truss ‘embarrassing’ and said she had ‘let down’ the judiciary.
The reaction to the judgement highlights the ignorance many of us have about the nature of the judiciary and the basis on which it makes decisions. While the effect of the judgement has political consequences, it was not—and this was something the judges recognised in their statement about it not being political within the judgement—a political judgement but simply a restatement of what the law has been since the seventeenth century: the executive does not have the right to dispense with laws by decree. Those who called for Brexit wanted Parliament to assert its sovereign powers and this is precisely what this judgement allows them to do. You might not like the judgement and it might be inconvenient but you’ve got what you voted for…a sovereign parliament asserting its rights.
The critical question now is how Parliament uses those rights. We know that the Lords largely supported the ‘Remain’ position whilst the Commons also had a less clear majority in favour of remaining. But the people have spoken and most of the MPs interviewed in the media suggested that they would vote for Article 50…assuming a one line bill…but the Lords appear less clear. There have been calls for transparency about what the aims of the negotiation will be and resistance from the government to what it calls a ‘running commentary’ on the issue. The problem with this is that there is little consensus among those calling for transparency over what that actually means in this context. Should the government simply lay down the broad principles…’we want to achieve a, b and c…that it seeks to achieve? Well, yes but nothing more…you cannot have a situation where 650 MPs are effectively the negotiating team for Brexit…it simply won’t work. Once it has completed its negotiation should it bring this back to Parliament for approval…again probably yes…but whether Parliament can then amend those conclusions or not becomes difficult. Presumably the EU will say after the negotiations…this is what we’ve agreed, you have to accept it and if not, you leave the EU with no agreement about further relations. We all knew that Brexit was going to be messy; Thursday’s legal judgement simply messed things up a little more.