Brexit, Trump And The Isolation Of The Judiciary
By questioning the motivations of judges, establishments in the UK and the US are undermining the rule of law.
Courts in the most influential legal systems from around the world have recently been called upon to decide questions that lie at the confluence of law and politics. These questions not only impact upon the viability of existing government policy, but will define the lives of those nations for years to come. Confronted with controversial policy decisions entangled in difficult legal questions, judges in the United Kingdom and the United States are finding themselves increasingly isolated.
Following a narrow but decisive referendum in favour of the UK leaving the European Union, the Supreme Court was tasked with deciding whether the government had the constitutional authority to unilaterally trigger the notification for withdrawal under article 50 of the Treaty of the European Union. Leaving aside the wisdom of the decision to leave the European Union, the question before the Court was far from straightforward. The Court was confronted with two competing legal principles.
- On the one hand, it is well established that the government has the ‘prerogative power’ to enter into treaties and conduct foreign affairs.
- On the other, courts have also long accepted that fundamental rights (including those protected through EU law) cannot be overridden without express parliamentary intervention.
Parliament Will Notify EU On Article 50: UK Supreme Court
It was accepted on all sides that in the event of a conflict between the two, statutes enacted by Parliament would always overcome executive exercises of the prerogative power. Rather, the subtler disagreement between the parties concerned what a ‘conflict’ entails. British statues incorporating EU law said nothing at all about withdrawal.
In the face of this statutory silence, the majority on the Supreme Court held that to permit the government to trigger withdrawal unilaterally would frustrate the will of Parliament.
However, three out of eleven judges decided that there was no conflict between prerogative and statute, and therefore a unilateral notification under article 50 was legally permissible.
Equally interesting as the decision itself is the manner in which the UK Supreme Court arrived at it. When the High Court’s judgment (arriving at a similar conclusion) was published, the judges deciding the case were accosted with hate and vitriol of spectacular proportions in the tabloid press. The high water mark was set by one newspaper describing the judges as ‘enemies of the people’, and another that profiled one of the judges as ‘an openly gay ex-Olympic fencer’. The government remained stoically silent in the face of these personal affronts to the judges, until the Minister for Justice made a belated (and equivocal) statement on the independence of the judiciary.
The immediate aftermath of the High Court judgment profoundly influenced the manner in which the Supreme Court decided the case.
This was equally a demonstration of solidarity as it was a recognition of the significance of the issues at stake. A dedicated page on the Supreme Court’s website stated that the judges were ‘aware of the public interest in this case and the strong feelings associated with the wider political questions’ it prompted, but that the duty of the judges was to ‘decide the case according to the law’.
This was re-emphasized during the hearings, and in the opening paragraphs of the decision of the majority:
This case has nothing to do with issues such as the wisdom of the decision to withdraw from the European Union, the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of any future relationship with the European Union.Majority Ruling Of The UK Supreme Court
The eight judges in the majority also chose to publish a joint decision, rather than identify which of them was its author. As the dust settled following Court’s decision, the President of the Supreme Court confirmed his disappointment at the sluggishness of the establishment in defending the judiciary.
Courts Strike Down Trump’s Travel Ban Executive Order
There are interesting parallels between these developments and recent events in the United States. The first iteration of President Trump’s executive order restricting immigration from seven countries was poorly drafted, and not only included visa holders and other non-citizens, but also extended to residents of the US holding green cards. The executive order was later restricted such that it would no longer apply to green card holders. Version three of the executive order, bearing further modifications, is reportedly in the pipeline.
Despite the obvious policy concerns raised by the executive order, the constitutional questions that it provokes are more difficult to resolve. As constitutional scholars have noted, the US President has typically enjoyed wide discretion in excluding aliens from American territory.
It is also uncertain whether courts can look behind the text of the order, which focuses on nationality, to the statements made by the President, which clearly indicate that it is motivated by religious considerations.
A federal district court temporarily restrained the enforcement of the executive order. The administration’s appeal against this decision proved unsuccessful. Personal affronts to the judges that decided the case against the administration were soon to follow, with none other than the President stating that a ‘bad high school student’ would have seen merit in the government’s arguments.
Balancing the power to interpret the Constitution amongst different branches of government is a virtue. Whereas legislatures – or in some instances, governments – bring democratically grounded perspectives to interpreting the Constitution, courts protect minorities that lack representation in the political mainstream. Nevertheless, there is a significant difference between criticising the reasoning of a court on the one hand, and questioning the motivations of its judges on the other. In engaging in the second exercise rather than the first, the establishments in the United Kingdom and the United States are undermining the rule of law. Courts should respond in the only way they can – through transparent decision-making processes, the quality of their reasoning, and deliberation of judgment.
Chintan Chandrachud is an Associate at Quinn Emanuel Urquhart & Sullivan LLP, London. He is the author of Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom.
The views expressed here are those of the author’s and do not necessarily represent the views of Bloomberg Quint or its editorial team.