Judge not . . .

We can use any four-letter words we like to describe the Queen, the Prime Minister or anyone else. A newspaper can brand the Royal Family, the Conservative Party, the Labour Party, the Church or the Civil Service as ‘enemies of the people’, and at times most have in effect been so branded. That is all part of the rough and tumble of public life in a free country. But if three judges are called ‘enemies of the people’, as they were recently after a court decision on the due process for leaving the EU, it becomes the most demonic attack on our fundamental liberties imaginable.  

Much though it pains me to defend the Daily Mail, its headline did not undermine the rule of law. The rule of law is what it says it is: what the law rules, everyone else must accept, governments included. No one is disputing that, not even the Daily Mail. The Government is not claiming to be above the court’s decision. It will abide by it. That is why it has appealed: it needs the Supreme Court’s approval to proceed as it would like.

Why should judges, uniquely, be beyond public criticism? If we disagree with a court’s decision, why should we not say so? Britain has had, for centuries, the most robust of public arenas, where freedom of expression has been permitted and sustained, frequently thanks to our judges. So why should judges themselves be immune from the public debate that they have helped to defend? Are they so hyper-sensitive as to assume that the slightest criticism of them, even expressed as strongly as it was by the Daily Mail, amounts to an assault on the entire edifice of the law?

There has been even greater hysteria at the reaction, or non-reaction, of the Lord Chancellor to the press coverage. Scandalised lawyers splutter that her principal job is to defend the legal profession. But no one attacked the legal profession, as a profession, any more than they attacked the rule of law. They attacked a particular decision made by a particular court. One can certainly agree that no Lord Chancellor should criticise a court decision, but is it really the job of a Lord Chancellor to rush to the defence of every decision reached by every court?

I would argue for the right of the Daily Mail to print such a headline even if there were no legitimate grounds for it, as is the case with so many of that paper’s headlines. (Note to lawyers: this is what is meant by freedom of the Press.) In this case, however, there are legitimate grounds for it.

The High Court ruling, now being considered by the Supreme Court on appeal, is that the Government has no right to trigger Article 50 of the Lisbon Treaty without the consent of both houses of Parliament. It may well be, and probably is, that under a strict legal interpretation that is indeed the position. That might appear to be the end of the argument: what else can judges do but give a strict legal ruling?

There may be disadvantages in a country having no written constitution, but there are also advantages. One of them is that it is easier for judges to use common sense when coming to a decision, rather than being constrained by a legal straitjacket. While they may choose a strict legal interpretation in a particular case, they may choose instead to reinterpret the law or to treat the case on its own merits. There is the opportunity for flexibility, and creativity, in the process. Many of those considered to have been among our finest judges have sometimes opted to make use of this freedom.

The question in this case is whether a valid decision has already been taken by Britain to leave the EU. One can reasonably argue that it has, and that the recent vote in the House of Commons confirmed it. While acknowledging that the European Union Referendum Act made no provision for the result to be legally binding on the Government, the behaviour of politicians since the referendum suggests that almost all of them treat the result as binding in practice. No one (apart from politicians in Scotland and Northern Ireland, who would like to challenge the result on entirely different grounds) has suggested that Parliament should review the result and then decide whether to leave the EU or not.

The argument that, since Britain entered the EU after a parliamentary vote, it can leave only after another such a vote, is not persuasive either. The 1972 vote to join was not prefaced by a referendum. The only democratic consent that existed was that the Conservatives had won the 1970 general election on a manifesto that included (amongst many other things) a promise to attempt to negotiate membership. In those circumstances, a parliamentary vote was essential. These are not the same circumstances.

The vital question that needs addressing is whether, on 23 June, the country took a legitimate de facto decision to leave the EU. If it did, then the Government’s use of the Royal Prerogative to begin the process of leaving ought to have been upheld. If it did not, then the decision does indeed need to be taken formally by Parliament. In choosing the latter interpretation, the judges in the High Court may have been acting according to the letter of the law, but it can reasonably be argued that they were acting against its spirit. It can also reasonably be argued that this was a case crying out for a creative judgment.

There is a widespread suspicion that many people in the British establishment would like to frustrate the result of the referendum. I share that suspicion, and I write as a Remainer. The judges’ decision has inevitably fuelled the suspicion. Hence the Daily Mail’s headline, however extremely it was phrased.

The House of Commons has now voted by an overwhelming majority to trigger Article 50 by the end of March 2017. For the Supreme Court to rule, in effect, that an unelected House of Lords now needs to do the same would, even by the standards of lawyers, be a decision of utter pedantry. It would bewilder most of the country. It would be absurd. And no doubt the Daily Mail, and other newspapers will say so in even more extreme language.

Others can and will take the opposite position. In the end, all opinions are immaterial because the Supreme Court’s decision will be binding. (Note to lawyers: this is what is meant by the rule of law.) I would hope, however, that all of us can agree that Britain’s judicial system is strong enough to withstand the assault of a daily newspaper on one judgment. Or even on two.