The response to the High Court’s article 50 judgment has emphasised that there is a distinct lack of constitutional understanding in the UK, writes Adele Edwin-Lamerton
It has been a tumultuous few weeks in the Brexit saga. After the initial shock of the referendum result itself, it was business as usual for a while.
Theresa May then announced that Brexit really does mean Brexit, giving a date of March 2017 for triggering article 50. This meant that the focus, maybe even the panic, increased, with people wanting to know the details of what a post-Brexit country will look like. This reached a peak when Gina Miller announced that she was seeking a judicial review of the government’s decision to trigger article 50. It prompted demonstrations by ‘Brexiteers’ claiming the ‘establishment’ was seeking to go against the will of the general public and block the country’s exit from the EU.
The case has now been heard and the now infamous article 50 judgment has been handed down by the High Court. Three very experienced and respected judges, Sir Terence Etherton, Lord Justice Sales, and Lord Chief Justice Thomas, have held that once notice is given under article 50, some rights under EU law (as incorporated into domestic law by the European Communities Act 1972) would inevitably be lost on completion of the article 50 process. Therefore, the government cannot give notice under article 50 without reference to parliament.
This would seem logical to many in the profession. If parliament is sovereign, then it should not be possible for the government to subvert it. It seems that many UK newspapers, however, did not understand or share this view, and the backlash has been extraordinary.
Take, for example, the by now notorious headline from the Daily Mail which declared the judges ‘enemies of the people’ and trumpeted that one of them is an ‘openly gay ex-Olympic fencer’. It is astounding that in this day and age, a national newspaper can level such small-minded criticism at who a person is as an individual.
What is even more astounding is the lack of support for the judiciary from the justice secretary, Liz Truss, whose response in support of the judges did not come until several days later, when many felt it was too little, too late.
This negativity has not escaped the ire of many UK lawyers, who have been quick to voice their disapproval. Truss’s predecessor, Lord Falconer QC, went so far as to call for her to be sacked.
The article 50 judgment has emphasised that there is a distinct lack of constitutional understanding in the UK. This was arguably already displayed by the outcome of the referendum itself, with many people reportedly feeling misled by the Leave campaign. Judging by the outpouring of scorn following the High Court decision, the roles of the legislative, the executive, and the judiciary are far from clear for many.
However, with the decision of the Supreme Court due in the new year, it does not appear that this is anywhere near over. In the meantime, let’s hope that the reputation of our world-revered independent judiciary is not discredited further by organisations seeking to sell newspapers with inflammatory headlines, or at least that, if this happens again, the justice secretary is quicker to speak out in support of the hard work they do.
Adele Edwin-Lamerton is the vice chair of the Junior Lawyers’ Division committee
This article was first published by Solicitors Journal on 19 December 2016 and is reproduced by kind permission.