Miller and the media: Supreme Court judgement generates more measured response

img_4218In this post Ailsa McNeil presents the findings of an analysis of newspaper coverage of the High Court and Supreme Court rulings in the Article 50 case. It shows that whilst the High Court judges faced an onslaught of criticism from Brexit-supporting newspapers the reaction to the Supreme Court judgement was more measured. Two factors can explain this: the fact the prospect of parliament delaying the triggering of Article 50 appeared remote by the time the Supreme Court delivered their verdict and the widespread condemnation of some of the coverage of the High Court judgement.

The reaction from some newspapers to November’s High Court ruling provoked almost as much controversy as the decision itself. The judges, branded ‘Enemies of the people’ (Daily Mail, 4 Nov 2016), faced an onslaught of criticism, which knew no bounds. The attacks were personal, vicious and an affront to the rule of law. Although the coverage of the Supreme Court decision was less hostile, some newspapers continued to admonish the judiciary.

We analysed the editorials published on the day following the decisions, 4 November 2016 and 25 January 2017 respectively, in five broadsheets (The Guardian, The Independent, The Financial Times, The Daily Telegraph and The Times) and five tabloids (The Daily Mail, The Daily Mirror, The Sun, The Daily Star and The Daily Express). Where the publication lacked an opinion piece, we used the closest equivalent, usually written by the political editor.

For each, we considered several questions: whether the article was critical or supportive of the judgement; whether it condemned the judges, or if the commentary was likely to decrease trust in the judiciary. Finally, we asked if the editorial breached the Attorney General’s guidelines for contempt of court.

Of the editorials that were critical of the High Court ruling, two published articles that spoke about the judges in terms that we considered would decrease a readers trust in the judiciary. The Daily Mail was quick to question the independence of the ‘unelected’ High Court judges. The article made several statements which suggested the decision was not made impartially. This tone was echoed in the Daily Express. Explicit criticism of the courts, with judges being criticised as out of touch, or too lenient in their sentencing, is not unusual. However, the severity of the criticism this time was unprecedented, as was the outrage that the media coverage generated amongst defenders of judicial independence and the rule of law.

Continue reading

Brexit in the Supreme Court, and after: your questions answered

robert_hazell (1)hamish

The Supreme Court will be the centre of political attention this week when the government’s appeal of last month’s High Court ruling on the triggering of Article 50 is heard. Robert Hazell and Harmish Mehta offer an overview of what the case is about, the likely outcome and its implications for the Brexit timetable.

The Brexit appeal to be heard by the UK Supreme Court (UKSC) from 5 to 8 December is the constitutional case of the century. All eyes will be on the Court hearing (which is to be broadcast live). And not just in Britain, but around the world. In recent weeks Robert Hazell has been advising foreign embassies, banks and investment managers from New York to Tokyo about the significance of the case, and the consequences which may flow from the court’s decision. They were particularly concerned about the impact on the timetable, the likelihood of the government getting authorising legislation through parliament, and the possibility of Brexit being delayed or even aborted. Here are some answers to their most frequently asked questions.

What is the case about?

On 3 November the High Court ruled that it was unlawful for the government to use prerogative powers to trigger Article 50 of the Lisbon Treaty to start the negotiations for Brexit, without reference to parliament. The government accepts that the judgement requires legislation to authorise the triggering of Article 50. But it has appealed to the Supreme Court to have the judgement reversed. All 11 Justices will hear the appeal from 5 to 8 December in a packed timetable. Their judgement is expected in January.

What is the likely outcome?

The case has generated huge interest amongst constitutional lawyers. Initial comment was strongly supportive of the High Court judgement, but since then the 30 or so commentaries on the UK Constitutional Law Blog have been more evenly divided. The government is likely to lose the appeal, because it has not significantly shifted its ground from the arguments it advanced in the High Court. In particular, it still maintains that Article 50 is irreversible: once triggered, it leads inexorably to the UK’s departure from the EU. The reasons for that are political: the government does not want to allow the possibility of second thoughts. But it seriously weakens the government’s legal case. It enabled the claimants to show that triggering Article 50 would lead inevitably to the abolition of statutory rights, such as the right to vote in European Parliament elections, and the alteration of UK statutes. They then argued that under a series of cases going back to the seventeenth century, statutory rights can only be abolished and UK statutes can only be altered by another statute, not by the prerogative.

Continue reading

The constitution of democracy and the pretensions of the plebiscite

weale

Albert Weale writes that the Article 50 case raised questions about which form of democracy can claim legitimacy –  the constitutional democracy established in the UK or the plebiscitary democracy now favoured by many Brexiteers. He discusses these two models and concludes that the only meaningful interpretation of democracy is the constitutional one. In this context the outcome did not represent the judges against the people, as some newspaper headlines suggested, but the judges for the people.

When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?

For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise. That the claim of the plaintiffs could properly go before the courts was agreed as much on the government side as on the plaintiffs’ side. Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour. The case was not about whether Brexit should happen but how it should happen.

There are legal arguments claiming that the High Court was wrong to suppose that triggering Article 50 will alter the rights that citizens enjoy under the law of the land. Those arguments make much of the distinction between the European Communities Act as a conduit or vehicle of rights as distinct from being a source of rights. Those arguments will be for the Supreme Court to decide. But what is certainly prompted by the reactions to the judgement is a broader question of constitutional politics. As well as questions of constitutional law, there are important questions of constitutional and democratic theory. For what is at issue in the controversy was which form of democracy could claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy that Brexiteers now favour.

Continue reading

The Article 50 judgement and withdrawing from treaties

hamish

The coverage of last Thursday’s High Court judgement on Article 50 has understandably focused on its immediate consequences for the process by which the UK will leave the European Union. However, if upheld by the Supreme Court, it is also likely to have wider constitutional significance. In this post Harmish Mehta explores the implications of one part of the court’s judgement, that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law or diminish the rights of individuals. He suggests that this could mean that the government could not withdraw from the European Convention on Human Rights without parliamentary approval.

Part of the UK constitution is the judgements of its courts of law. Such judgements can have transformative and prolonged effects on UK constitutional practice.

On 3 November, the High Court (‘the court’) handed down its judgement in R (Miller) v Secretary of State for Exiting the European Union ([2016] EWHC 2768), which stated that the executive does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union (‘TEU’) for the United Kingdom to withdraw from the EU [para. 111]). The UK Supreme Court will hear the appeal against the judgement on 5-8 December.

Of course, Miller has a considerable impact on the prospects of the UK exiting the EU in the near future. However, it should not be forgotten that Miller is a judgement of wider constitutional importance. Subject to it being modified by the Supreme Court, it has the potential to shape the UK constitution beyond Brexit. This is partly the consequence of its appeal to, and development of, longstanding and far-reaching principles of constitutional law. It rivals even R (Jackson) v Attorney General ([2005] UKHL 56) in its exploration of the UK’s constitutional history and statements of apparent constitutional truisms.

In this post I will explore the implications of one part of the court’s judgement, which amounts to what I will call, for brevity alone, the ‘unmaking principle’. This principle is that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law, be it statute or common law, in any way, or diminish rights of individuals.

Continue reading

We need to talk about our democracy

me 2015 (large)Meg-RussellRecent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.

Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.

Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.

This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.

Continue reading