CHAMPIONS OF THE PEOPLE
They are the three judges who ruled that the voters, not Parliament, should trigger Brexit
THREE of the 11 Supreme Court judges dissented from its majority ruling on Article 50 yesterday, with one warning his colleagues over the ‘risk’ of intruding into politics.
Lord Reed said the court should have upheld the Government’s appeal and allowed Theresa May to fire the starting gun on Brexit without first going to Parliament.
The judge said, in his opinion, it was not always ‘constitutionally appropriate’ for the judiciary to interrogate political issues.
Doing so was ‘fraught with risk, not least for the judiciary’, he added, appearing to suggest that in doing so the courts risked provoking a public backlash.
Eight of the judges – including the court’s president, Lord Neuberger – concluded a new law was required to give the Prime Minister power over Article 50, which begins the two-year process of leaving the European Union.
Ministers argued Mrs May did not need the approval of MPs and peers, and was entitled to use ancient ‘prerogative powers’.
The majority ruling concluded that triggering Article 50 would result in changes to domestic law – and ultimately would remove some rights which being in the EU gives to UK residents.
As a result, they said the Prime Minister required explicit parliamentary authority to start the Brexit process.
But in his minority opinion, Lord Reed – whose view was backed by Lord Carnwath and Lord Hughes – disagreed.
He argued that the 1972 European Communities Act simply translated EU law, which is the result of treaties signed by ministers, into domestic legislation.
And in a clear warning against judicial activism, he wrote: ‘Courts should not overlook the constitutional importance of ministerial accountability to Parliament.
‘Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without any possibility of judicial control: examples include the declarations of war in 1914 and 1939.
‘For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions.
‘ It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.’
Lord Carnwath argued that leaving the EU would ‘undoubtedly’ require Parliament to pass legislation. But he added that ‘the process, including the form and timing of any legislation, can and should be determined by Parliament not by the courts’.
‘That involves no breach of the constitutional principles which have been entrenched in our law since the 17th century, and no threat to the fundamental principle of parliamentary sovereignty,’ he said.
Lord Hughes said the referendum result ‘undoubtedly has enormous political impact’ but not ‘direct legal effect’.
He argued that leaving the EU did not alter the 1972 Act – it just meant it ‘ceases to operate because there are no longer any treaty rules for it to bite upon’.
Lord Reed, 60, one of two Scottish members of the court, has
‘Foreign to our traditions’ ‘Fumbled the law’ ‘It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, andmaybe fraught with risk, not least for the judiciary’
Lord Reed
spent a significant proportion of his adult life working in European institutions, including the European Court of Human Rights.
Married with two daughters, he was educated at George Watson’s College in Edinburgh, and Oxford University.
Lord Carnwath, 71, served as a legal adviser to the Prince of Wales from 1988 to 1994, when Charles’s marriage to Diana was disintegrating. He was a High Court judge from 1994 to 2002.
Lord Hughes, 68, is seen as a traditionalist in the court. He attended Durham University and was made a QC in 1990. He was appointed to the Supreme Court in 2013, having served as a Crown Court recorder and a High Court judge.
Responding to the ruling, former Tory leader Iain Duncan Smith accused the Supreme Court of ‘deciding to tell Parliament how to run its business’ and said Britain’s judges were ‘already politicised’.
He suggested there should be Parliamentary hearings for judges appointed to the court.
‘They’ve stepped into new territory where they’ve actually told Parliament not just that they should do something but actually what they should do,’ he told BBC Two’s Victoria Derbyshire show.
‘I think we should have something like the American hearings because we are creating a court which is challenging Parliament’s supremacy. Parliament should have the final say on the appointments.’
Professor Richard Ekins, head of the Policy Exchange think-tank’s Judicial Power project, said the ruling was ‘not justified by longstanding legal principle’.
He praised the minority opinion, saying: ‘It is encouraging that at least some justices saw through the claimant’s strained legal arguments … The Supreme Court’s judgment was not required to vindicate parliamentary sovereignty and is not supported by that fundamental principle of our constitution.
‘While the Court’s decision is a mistake, not a conspiracy, it is very sad that on such a public stage a majority of the Supreme Court has fumbled the law.’