IB April 2017

The Rule of Law or the Rule of Lawyers?
A reflection on the ‘Miller’ case
NEWS
In the December issue of ‘Counsel’ magazine the outgoing Chairman of
the Bar called for a defence of the Judiciary. This was in the aftermath
of media criticism of the High Court following its decision in the ‘Miller
case’ concerning whether the Government could trigger Article 50 to
leave the European Union following the Brexit referendum.
Subsequently I, like every other Barrister, received an email from the Bar
Council also stressing the Bar Councils defence of the Independence of
the Judiciary and the Rule of Law.
Whilst I certainly do not defend the media description of High Court
Judges as ‘Enemies of the People’, we in the legal profession do perhaps
need to recognise that the essence of the criticism was justified. In the
‘Miller’ case the Courts were overstepping their role and were interfering
in a political rather than a legal argument. The Rule of Law does not
mean the Rule of Lawyers and that means that the Judiciary should not
overreach their role and should respect the separation of powers and this
they failed to do in ‘Miller’.
Frankly, the argument as to whether or not the decisions in the Miller
case were right or not misses the point; the case should never have been
allowed to proceed in the first place. The decision whether the UK
should leave the EU was the supreme example of a Political decision and
the parties in the Miller case had no specific interest in that decision over
and above the interests of every other UK citizen. In R v Monopolies
and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763
Lord Donaldson MR memorably said that applications for Judicial
Review should be refused where an applicant had no specific personal
interest in the issue 'and was, in truth, no more than a meddlesome
busybody', a description that could well be held to apply to the
applicants in the Miller case. Unfortunately, the High Court in the Miller
case ignored Lord Donaldson’s wise words and permitted the Law to be
misused as a weapon in an essentially political argument, so turning
what was a political debate into Jarndyce v Jarndyce.
It is either naive or disingenuous to state that the Miller case merely
revolved around legal questions as if the judiciary and the Courts live in
an Olympian detachment from the affairs of mere mortals. The Courts
were being used as Political weapons by people whose only claim to a
hearing was that they could afford the legal costs. It was a corruption of
the political process which was permitted and facilitated by the Courts.
The principle of the separation of powers is fundamental to the exercise
of democracy but that requires each branch to respect its limitations as
well as its powers. For the judiciary to interfere in essentially Political
arguments is a breach of this principle. If there was a real argument
between Parliament and the Executive as to where the power lay to
execute Article 50 then that could and should have been dealt with by
Parliament exercising its powers to pass laws and if necessary to vote
down the Government. Where there is no conflict between Parliament
and Government then there is no justification for the Courts to interfere
at the arbitrary request of a non representative third party.
The judiciary are certainly not the ‘enemies of the people’ but they may
inadvertently become the enemies of the rule of law if they are seen to
overstep their proper role. The judiciary is the only part of Government
that is not subject to Democratic accountability and that answers to no
other authority. Unlike appointments to the US Federal Judiciary,
appointments to the UK Supreme Court are not subject to Parliamentary
approval. The Judges do however, need to accept that they cannot
expect to exercise American-style judicial power whilst retaining
traditional English Judicial deference. ‘Qui Custodet Ipsos Custodes’, is
an old question but it is one that needs to be asked in every generation;
mere platitudes about the rule of law and judicial independence will not
suffice. Either the judiciary controls itself and restrains from cases which
merely interfere in purely political arguments or the demands for control
of the judiciary will increase and that will have more implications for the
rule of law than merely unpleasant newspaper headlines.
Neil Addison
New Bailey Chambers
This article is written in a purely personal capacity
THE UK ASSOCIATION OF WOMEN JUDGES
**Dates for your diary**
ANNUAL CONFERENCE and
NOTICEOF AGM, BRISTOL
OUTREACH EVENT, BIRMINGHAM
Friday 12 May 2017
The UKAWJ has arranged outreach events in Portsmouth and Belfast
in previous years which have worked well. They give law students
an opportunity to hear from the UKAWJ President Baroness Hale,
followed by a "meet the judges" panel session. This year the outreach
event will be held at the Birmingham Civil Justice Centre, and we
will be followed by a dinner in the evening to promote the
association. This event will also provide an excellent opportunity for
members to meet with local judiciary, barristers, solicitors and
academics. The panel event will be followed by dinner at San
Carlos. For further details re venues, costs and membership/ booking
forms please contact the membership secretary:
DJ.Mathangi.Asokan@eJudiciary.net
Friday 03 November 2017
The UKAWJ theme of “Religion, Culture and the Law” continues
this year. Following the success of the 2016 Annual Conference in
Manchester, we will be considering these issues further across a
range of jurisdictions and subjects. This will be the focus of the
annual conference on Friday 03 November, which will be held in
Bristol. The AGM of the association will also take place on 03
November. The dinner will be held on Thursday 02 November.
Further information regarding the venues, speakers, costs and
booking forms for each event will be sent out in due course. But
please book the date in your diaries now!
We appreciate that the notice for the Outreach event is shorter than
for the Annual Conference - but we very much hope to see you at
one/ other - or both!
Christine Bispham
7 Harrington Street
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