Supreme Court misdirects itself

By September 24, 2019February 18th, 2021No Comments

Champions of the people (Not that we’re impugning the other judges’ integrity!): The three judges who ruled that the voters, not Parliament, should trigger Brexit

Three Supreme Court judges voted in favour of Government on Brexit

Lord Reed said not always ‘appropriate’ for judges to discuss political issues

But eight judges voted in favour of forcing exit process to go to Parliament

By Jack Doyle, Senior Political Correspondent For The Daily Mail

25 January 2017

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’.

Read more:

Patria says:-

Gentlemen, when the enemy is committed to a mistake we must not interrupt him too soon.

Attributed to Horatio Nelson