Scottish legal bodies unite to defend judicial independence

Strong support for the independence of the judiciary and the legal profession has been voiced by the Faculty of Advocates and the Law Society of Scotland, as the row continues over the fallout from last week’s Brexit ruling of the High Court.

The decision by three senior judges, including the Lord Chief Justice and Master of the Rolls, that invoking the article 50 process to start the UK’s formal withdrawal from the European Union requires parliamentary approval, was greeted with a right wing newspaper backlash including a headline declaring the judges “Enemies of the people”. Some politicians called for the judges to be dismissed.

Liz Truss, the Secretary of State for Justice and Lord Chancellor, was criticised for failing to defend the rule of law in line with her oath of office. In a statement issued on Saturday she said merely that "The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality. In relation to the case heard in the High Court, the Government has made it clear it will appeal to the Supreme Court. Legal process must be followed."

Attorney General Jeremy Wright QC, who presented the Government’s case before the High Court, has since said the Government would respect the final judgment: “That is what the rule of law requires: that however big the case may be, the rule of law matters more.”

In their joint statement, Gordon Jackson QC, Dean of Faculty, and Eilidh Wiseman, President of the Law Society of Scotland, said: “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.”

Noting the importance of access to justice and the ability to challenge the Government in defence of individual rights, the statement went on to emphasise that that the judiciary was not interfering with the "will of the people", but deciding whether, as a matter of UK constitutional law, the Government was entitled to use its powers to give notice under article 50.

The Dean and President concluded: “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 forward.

“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 judgment 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.”

Robert Bourns, President of the Law Society of England & Wales, commented: "Attacks on the judges simply because they were doing their jobs does our country no credit and Government ministers must be unequivocal in their support for the rule of law, even if they disagree with the judgment.

"It is part of the role of lawyers to defend unpopular causes and there has been an increasing narrative in recent months that seeks to conflate the jobs solicitors and barristers do with the causes they represent as part of our system of justice. The extension of this to disparaging and criticising judges is dangerous and damaging."

Ministers are reported today to be preparing a bill to be introduced to Parliament should they lose the appeal, in order to keep to the Prime Minister’s timetable of giving the article 50 notice by March 2017.