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.

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Following the Supreme Court ruling, what happens next?

robert_hazell (1)me 2015 (large)

Following today’s Supreme Court judgement, the focus of attention shifts back to parliament.  How long will it take for parliament to pass the necessary legislation? How likely is it that the legislation will be amended? Robert Hazell and Alan Renwick assess the implications for the Brexit timetable, and the government’s negotiating strategy.

What will happen to the government’s timetable?

The government have confirmed that they will introduce a short bill, probably just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both chambers recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

In November government sources suggested the bill would be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable, etc. Debate risks exposing continuing splits within both the Conservative and the Labour parties. Because the referendum specified nothing about what Brexit means, the battle continues between Brexiteers, who mostly support a hard Brexit, and Remainers hoping for a soft Brexit. Meanwhile Labour remains split on how to respond to the referendum outcome – to respect the will of the 52 per cent (who make up a majority in constituencies such as Stoke-on-Trent Central, where the forthcoming by-election will be hard fought), or speak up for the majority of Labour voters, who backed Remain. Speaking in parliament after the judgement, Labour’s Shadow Brexit Secretary, Keir Starmer, indicated that Labour would seek to amend the Article 50 legislation to require a white paper on the government’s plans, stipulate mechanisms for parliamentary scrutiny of the negotiations, and hold a ‘meaningful’ vote on the final deal. Legislation gives all groups in parliament multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

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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.

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The Article 50 judgement and withdrawing from treaties


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.

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Judicial Independence and Parliament

The Judicial Independence Project recently held its third seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence and Accountability: The Role of Parliament’.

The discussion focused on the relationship between Parliament and the courts and reference was made to the idea of ‘comity’ as the basis for this relationship: mutual respect combined with distance. Some worried, however, that comity might freeze relations so that there is little communication between both sides. It was noted that there is no constitutional bar to political criticism of the judiciary. It was generally agreed that criticism (even unfair criticism) does not affect the independence of judges.

Several speakers emphasised also that the high profile breaches of super-injunctions and anonymised injunctions by parliamentarians in 2011 were not breaches of the sub judice rule but rather breaches of court orders which are not captured by that rule. Injunctions of this kind raise different issues to sub judice and a new rule may be required.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Read the seminar note

When the supreme court won’t hear

Supreme court justices are caught up in a new age of accountability. In their judgments, they increasingly find themselves holding the government and other public bodies to account, as they decide more public law cases. On the other hand, they are often criticised as ‘unaccountable’ – an example being Michael Howard’s reaction to a court challenge to government cuts. In a similar vein, David Cameron said he was ‘appalled‘ by the court’s decision about the sex offenders register. The legitimacy of the court was also a factor in the Scottish government’s threat to withhold its funding after the decision overturning the verdict in a Scottish murder case.

Does this suggest that the supreme court has an accountability problem? In many ways, our top judges are more accountable than ever. True, they are not subject to ‘hard’ accountability. They do not have to answer for their decisions in front of political opponents, or lose their jobs if their decisions prove unpopular. They are subject instead to ‘soft’ or ‘narrative’ accountability that requires them to explain their judgments and the way the court conducts its business.

For our top judges, it has involved a big change, of practice and of culture. The law lords were tucked away inside the Palace of Westminster, with staff provided by parliament, no proper annual report or accounts, and a minimal website. The supreme court operates under the public gaze. Decisions are easily accessible on the court’s website, with summaries for those not legally qualified. The court is televised, with TV streaming hearings and judgments via the Sky News website. Criteria for appointment to the court include the ‘willingness to participate in the wider representational role of a justice’, by delivering lectures and talking to conferences. Some of the justices have featured in TV documentaries.

The chief executive’s annual report and accounts give an account to parliament and the public of its activities and how the court has spent its budget. ‘Soft’ accountability has fashioned a more transparent court that is much more energetic in giving an account of its judicial business and day-to-day operations, with 238,000 visitors to the court’s website last year.

But there are limits to the court’s quest for openness. The reasons for refusing permission to appeal to the court remain brief and formulaic. Yet leave to appeal matters, because two out of three applications are refused. Applications for leave are generally considered by a panel of three justices. Some practitioners have called for fuller reasons to be given since this could help avoid futile applications in future. True, the justices consider what information to convey to the parties when permission is refused, but this falls significantly short of the practice in some other top courts. In New Zealand, for example, there is a statutory requirement to give reasons for refusal to grant leave, with these reasons often running to over a page.

Another controversial issue is how the court determines the size and composition of the panels that hear cases. Composition matters, because a panel that decides a case by 3:2 might have come to a different result with a different set of justices. The court sits in panels of five, seven or nine justices. The factors determining how many hear particular cases are unclear (beyond the obvious concerns that panels have relevant expertise, as well as the need to ensure an even workload across the twelve justices). In its first year, the court sat in panels with more than five justices in 18 out of 68 cases (as compared with only three panels with five or more law lords in 2006-2009). As the trend is towards greater use of larger panels, the court needs to clarify the criteria used to determine the size and selection of panels.

The court’s decisions extend to many aspects of our lives. In the last two years, landmark decisions have touched on such matters as faith schools, bank charges, prenuptial agreements and control orders. These decisions have far-reaching policy implications, sometimes upsetting the policy preferences of elected politicians. True, parliament can legislate to reverse decisions of the court, and from time to time does so. But, in practice, the buck often stops with the justices. So it matters who they are and how they come to be appointed.

Only the most difficult and important legal questions fall to be decided by the court. There are often no clear-cut answers. Sometimes the law is unclear, and so the justices must choose between competing interpretations. Sometimes there is no law applicable, and the justices expound a new law. Because there are no clear-cut answers, and because different judges are influenced by different views on the judicial role, the identity of individual justices matters. Appointing one person rather than another influences the result of the questions decided by the court.

Under the new appointment arrangements in the Constitutional Reform Act 2005 the president and vice-president of the supreme court have an important say, since they are two out of five members on the body which selects new justices. Some have argued that while they should certainly be consulted, they should not be directly involved in selecting other members of the court, lest the court become a self-selecting oligarchy.

Others have suggested involving parliament, with appointees appearing before a parliamentary committee to explain their background and broad approach to judging. MPs are increasingly keen to scrutinise public appointments, with some 60 of the most important now subject to an appearance before the relevant select committee before the appointment is confirmed. But there seems less parliamentary interest in scrutinising the appointment of judges, and most candidates for judicial office recoil in horror at the prospect of a pre-appointment scrutiny hearing. Senior judges like the lord chief justice make regular appearances before select committees to explain the work of the courts, but parliamentary involvement in senior judicial appointments is still seen as a step too far.

This piece first appeared in the Guardian

Judicial Independence webpage

Judicial views on the selection process for senior judges

[Posted on behalf of Kate Malleson]

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee’s inquiry into the judicial appointments process last week. He argued against the introduction of any form of parliamentary hearings for Justices of the Supreme Court or the Lord Chief Justice. In this view, he is joined by most, if not all, the other members of the Supreme Court and senior judiciary who remain to be convinced that there is any role for Parliament in the appointment process of individual judges. More surprising, was Lord Phillips’ view about potential reforms to the role of the Lord Chancellor in the process. He argued that he would like the Lord Chancellor to be on the selection commission for Supreme Court appointments, believing that this would be preferable to the LC having a veto late in the process.

Even more unexpectedly, Lord Phillips strongly objected to the requirement that he must sit on the panel to choose his successor – he said that he had tried to argue that one can interpret the provision to excuse the President when the next President is to be selected but that he had not been successful in persuading others that his interpretation is tenable. Although this is the first time (as far as I am aware) that Lord Phillips has expressed this view publicly, he is not alone amongst the judges in accepting that the current process, whereby the President and Deputy President both sit on the Supreme Court ad hoc selection committee is problematic. There has been a strong groundswell of opinion outside the judiciary that this arrangement is likely to promote self-replication and is inconsistent with all other senior appointments processes in either the public or private sector. It appears from the evidence taken by the Committee that some of the senior judges share this concern. This now, therefore looks like an area in which the Committee is likely to recommend reform.

The last surprise from Lord Phillips was his decision to produce a draft of a provision that might replace the ‘merit’ provision in the Constitutional Reform Act 2005. His amendment read that: “The Commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and the current composition of the Court”. Having produced the draft provision Lord Phillips made clear that he himself would object to such a change and would argue against it. What the Committee will make of that position is hard to know.

Human Rights and Judicial Appointments: The Judges meet the Lords

The Lords Constitution Committee took evidence from Lord Phillips (President of the Supreme Court) and Lord Judge (Lord Chief Justice) yesterday. The topic of the meeting was the Committee’s current inquiry into the judicial appointments process but the discussion touched on some broader themes, including the role of the judiciary and of the European Court of Human Rights in Strasbourg.

For watchers of the judiciary the exchange repays watching – you can watch the whole thing here:

There’s no transcript yet but one should appear on the Committee website soon:

The most newsworthy part (it received a good deal of press coverage today) was Lord Judge’s opinion that the UK courts are not necessarily bound by the decisions of the Strasbourg court. Lord Phillips expressed the view that the Human Rights Act meant ultimately that ‘Strasbourg is going to win’. Lord Judge appeared to disagree, and suggested that a debate would eventually need to happen in the UK Supreme Court about what exactly the Human Rights Act means when it says that UK courts are required to take account of Strasbourg decisions. It is at least arguable, he said, that having taken account and given due weight to these decisions, the British courts are not obliged to follow them. One might interpret this as a very polite suggestion that the Supreme Court should change its approach to this issue.

(Whether there is an actual disagreement here is open to interpretation, but there is certainly a live issue. At the moment the UK courts treat Strasbourg precedents as binding and a decision that is directly addressed to the UK certainly binds the UK in international law. And while precedent does not formally bind in international law it is generally very persuasive. As such Lord Phillips’ point seems entirely correct. However, traditionally the Strasbourg court has spoken of affording a ‘margin of appreciation’ to states and it could certainly be argued that – again as a matter of international law – Lord Judge is correct to say that there should be some space for disagreement about what the provisions of the Convention mean between domestic courts and Strasbourg.)

On judicial appointments, both judges agreed that the President of the Supreme Court should not have a role in the selection of his successor and both expressed hostility to the involvement of Parliament in appointments. Lord Judge expressed hostility to the idea of a ‘beauty parade’. However, they were open to alternatives, such as the involvement of the Lord Chancellor throughout the process of selection of senior judges (rather than just at the end, as at present) or the involvement of an MP as part of the selection committee. Both judges were at pains to point out that the role of the UK Supreme Court is, unlike some of its peer Courts in other countries, not political and that different considerations therefore apply to selecting judges for it.

Ireland gets a new Chief Justice…

… and a new barrier broken. Not only will Mrs. Justice Susan Denham be the first woman to lead the Supreme Court, she will also be Ireland’s first Protestant Chief Justice (that the latter point is less remarkable than the former  illustrates that a lot has changed in Ireland in the last 30 years). The soon-to-be Chief Justice’s appointment does not come as a surprise: she has always been very well-regarded and, having been appointed in 1992, is the longest serving member of the Court. Generally regarded as quietly activist on a Court that is more or less ideologically inscrutable (but in practice conservative in recent years), the appointment may give a more liberal direction to the Irish Supreme Court. Two of the most senior Irish law officers are now female. With the recent change of government Ireland also got its first female Attorney General, Máire Whelan SC.

One of the new Chief Justice’s first tasks will be to smooth relations between the government and the judiciary which have been ruffled by a proposed referendum to facilitate the reduction of judicial pay, due to take place in the autumn.

(PS: I am open to correction on this, but I believe Mrs. Justice Denham may also have broken through a somewhat more difficult glass ceiling by being the first Chief Justice to graduate from Trinity College Dublin and not University College Dublin, from whence the vast majority of her predecessors and current colleagues have graduated. There’s hope for us all…).

Injudicious Talk?

So it’s finally happened. The dogs on the street knew the identity of CTB, the footballer who held a super-injunction prohibiting publication of details of an alleged affair. Yesterday afternoon,in the course of a Commons debate on privacy, John Hemming MP used the protection of parliamentary privilege to name CTB as Ryan Giggs. [] As a result the media (and this blog) have been freed to repeat this information without threat of legal sanction. This is one of several similar incidents recently. In March, Mr. Hemming used privilege to reveal the existence of an injunction held by Sir Fred Goodwin and last week Lord Stoneham stated in the House of Lords that the injunction in question related to an allegation of an affair.

These incidents suggest that parliamentarians may be starting to assert a direct role in interpreting the appropriate boundaries between privacy and freedom of expression and in challenging rival judicial interpretation of the balance of these values. There is nothing wrong with this as a matter of constitutional principle. Parliament has always acted as supreme constitutional authority (just as judges have always made law). However, direct challenges to the authority of the judiciary are unusual because if Parliament doesn’t like the wider implications of a judicial decision it can simply change the law (but of course Parliament doesn’t appear to be sure quite what an alternative privacy law should look like, and doesn’t want to court media criticism any more than do judges).

The reality is that the judicial position that underpins the jurisprudence on privacy in Britain is entirely defensible. Of course it is possible to disagree with it, but is it so far beyond the pale that it deserves the kind of criticism it has received? Only last Friday, Lord Judge suggested that MPs should think carefully before using privilege to frustrate injunctions in this way. [See the press conference for Lord Neuberger’s report on Super-Injunctions:] And yesterday morning a fresh application to discharge Mr. Giggs’ injunction had already been rejected by the High Court (a second application after Mr. Hemming’s statement was also rejected). Given the timing, Mr. Hemming’s statement thus represents something of a challenge to the authority of judges; a minor one, perhaps, but a challenge nonetheless. Depending on one’s point of view, this may also amount to a challenge to the rule of law. Is it really worth having a constitutional crisis over an alleged celebrity affair?

There is an interest in privacy – particularly in respect of the most intimate aspects of family life – that tends to go unspoken for in this debate. Partly, this is because the media has a professional (and pecuniary) interest in making secret things public and because, to some extent, politicians follow agendas that are set by the media. The widespread media position that super-injunctions amount to press censorship is of course literally true, but insufficiently fine-grained. The media account of the privacy debate significantly underplays the damage that publication causes to families. The super-injunction granted to Trafigura in 2009 (which prevented publication of a report into the dumping of toxic waste in Africa) [] was orders of magnitude more worrying than an order that suppressed some celebrity gossip about a footballer and a Big Brother contestant. The balance of interests in the first case is not the same as that in the second (not least because companies don’t have family lives). And it’s not as though it’s hard to see the qualitative difference between these two kinds of story – the common ‘slippery slopes’ argument that tends to blight discussion of freedom of expression and privacy is not always well founded. (Readers may want to see Conor Gearty’s more extensive argument about privacy and the Max Mosley case on the UK Constitutional Law Group Blog available at:

Of course, it might be reasonable to argue that the balance of interests was changed in this case by the fact that Mr. Giggs’ name was already public knowledge through circulation on Twitter and the internet more generally. It is possible that we are in a world in which privacy is impossible for people who are in the public domain (and perhaps for private citizens too). In that context a privacy injunction might be as effective as an injunction that water should run uphill and simply not worth having. Nonetheless the courts appear to have been receptive to the argument by Mr. Giggs’ lawyers that there were important differences between publication on Twitter and publication in the print and TV media, with all that the latter could entail [see:]. A thoughtful Guardian editorial makes a similar point today:

All of that said, Mr. Hemming has not had things all his own way. The response from fellow parliamentarians has been notable in its lack of support for his position, with a number expressing regret or emphasising that privilege should not be used in this way. Responding yesterday in the same Commons debate to a suggestion that the judiciary should ‘butt out’, Attorney General Dominic Grieve MP said that ‘I have to say to my hon. Friend that I am not quite sure what they are supposed to butt out from. If he is suggesting that they should butt out from doing their duty and following the judicial oath that they take, I am afraid I disagree with him.’ And in the Lords, former Lord Chancellor Lord Falconer commented that: ‘There is something quite ugly about unpopular people being named in Parliament despite the fact that a judge has thought that they are entitled to privacy,’ and noted also that the issue of privacy had been the subject of significant debate when Parliament enacted the Human Rights Act. Even Mr. Hemming’s own party leader, Nick Clegg, (speaking today) was critical. []

No one is suggesting that the general authority of the judiciary is likely to crumble over this. But there is a very public challenge here from some parliamentarians and from the media and so far the judiciary appear to be sticking to their guns. The Attorney General has announced a joint committee to investigate this issue. It will be interesting to see what happens next.

Lord Neuberger’s report on Super-Injunctions is available at: