Article 50 High Court judgement demonstrates judicial independence

Law Society President Eilidh Wiseman and Dean of the Faculty of Advocates Gordon Jackson QC jointly commented on the High Court judgement on the role of the UK Parliament in invoking Article 50:

"A strong, independent judiciary and legal profession are vital to ensuring that anyone, regardless of their status, has access to justice and that the rule of law is upheld

Members of the judiciary are expected to be strictly impartial when considering how the law should apply in any particular case and our courts provide a politically neutral way of determining a course of action.

The importance of having an  independent judiciary and legal profession is recognised around the globe and is a principle incorporated into  numerous domestic and international treaties and enshrined in many national constitutions – and in some countries can be the only barrier to authoritarian government. Indeed, in Scotland and in the UK as a whole there is a statutory obligation on government to uphold the independence of the judiciary.

Access to justice is an important feature of our system and anyone can bring a matter to court if they believe their rights or obligations are being affected – and even government is not immune to challenge. 

Given the complexity of constitutional law matters around Brexit, the case brought by Miller and Dos Santos against Secretary of State for Exiting the European Union  merited going before the courts. It is important to understand what the judges were being asked to consider. Despite some of the protest and accusations that the judiciary is interfering with the ‘will of the people’, the High Court judges decision does not affect the outcome of June’s referendum vote to leave the EU. That has already been decided.

The case asked the court to determine whether, as a matter of the constitutional law of the United Kingdom, the Government was entitled to use its powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.

The  judges agreed with the claimants and ruled that the prime minister did not have power to trigger Article 50 of the Lisbon Treaty to start the two-year process of negotiating Brexit without the prior authority of parliament.

The Government has already stated its intention to appeal the judgement.  Whether the Supreme Court will have the same view as the High Court remains to be seen. If it does, then it will be for MPs to ensure that they properly represent their constituents as the debate on Brexit moves forwards.

What we as citizens – whether we voted to leave or remain within the EU – can be sure of is that no matter where the political debate takes us, the High Court judgement has demonstrated that the judiciary and legal profession act independently and consider cases before them in light of their legal competence regardless of political or public opinion."