On Monday morning, on the edge of Parliament Square, the United Kingdom’s judicial elite assembled to hear argument in R(Miller) v Secretary of State for Exiting the European Union. Inside the Supreme Court, a packed courtroom fell silent as the matter was called on for hearing. Outside, protesters braved the morning chill to trade taunts and slogans.
Though a jarring disruption to the staid routines of Britain’s highest court, the febrile atmosphere surrounding the appeal has come as a surprise to few. In deeply divided post-Brexit Britain, the referendum’s bitter aftermath has amplified the worst tendencies of national debate. Always prone to flights of law-and-order hysteria, whole segments of the British press have seized upon the Miller litigation as the occasion for a no-holds-barred venting of anti-judicial bile.
Leading the coverage is, of course, the Daily Mail, which has kept up a steady drumbeat of outrage since the first Miller judgment in November. That ruling — in which three judges of the High Court held that the UK government must secure the authorisation of Parliament before triggering the two-year process of withdrawal from the EU — elicited an extraordinary response from the Mail. After using its front page to brand the judges ‘”enemies of the people”, the paper proceeded to comb through the background of each member of the court, pausing over those matters that are deemed exceptionable in the Daily Mail universe.
And so the Lord Chief Justice was said to be “a committed Europhile”, while the Master of the Rolls, Sir Terence Etherton, was billed as an “openly gay ex-Olympic-fencer” (the subject of a much-publicised riposte by J.K. Rowling). Not discouraged by the Justice Minister’s (belated and half-hearted) defence of the judges, the Mail treated its readers, in the days leading up to the government’s appeal to the Supreme Court, to a similar profile of the 11 Supreme Court justices, each of whom was assigned a “Europhile rating”.
Other, more august publications have baulked at the crassness of the tabloid approach, and have instead taken the traditional tack in which a (usually non-lawyer) pundit is appointed to demonstrate how horribly the judges have gone awry. These pieces follow a familiar formula. Long on invective and short on law, they are typically so preoccupied with the evils of “judicial activism” that no space is left for any discussion of the judges’ reasoning. Of course, this rarely deters the pundit, who — munificently endowed with the commonsense denied to judges — has no difficulty in declaring how the case ought to have been decided.
This atmosphere has, unsurprisingly, made itself felt in the courts. On Monday morning, David Neuberger, the President of the Supreme Court, noted that the parties had been asked whether they wished to make an application for any of the judges to recuse themselves, and that no objection had been made to any of the justices sitting on the appeal. Neuberger was also at pains to stress that the matter was concerned solely with questions of law. These highly unusual steps were plainly taken to ease the tension surrounding the appeal, though it is doubtful they will affect the views of the court’s detractors in the media, most of whom seem wedded to portraying the justices as being determined to derail Brexit.
This could change, of course, if the Supreme Court ultimately rules in favour of the government. The court’s decision — expected in January — is difficult to predict. The appeal raises technical questions of law on which reasonable minds may differ. The difficulties stem in part from the fact that the UK — almost alone among modern states — lacks a codified constitution that sets out the powers of each branch of government. In the UK, it is necessary to look to a miscellany of sources to identify the principles of the constitution. Though this may seem hopelessly uncertain, it would be a serious mistake to think that the adoption of a written constitutional instrument could sweep away all constitutional doubt: the appeal in Miller is concerned to a great extent with the proper interpretation of statutory provisions. These difficult questions of interpretation would still need to be resolved even if the appeal were taking place against the backdrop of a codified constitution.
The outcome and aftermath of Miller will be intently watched by an anxious British political class. But it might well be watched most keenly by those who might, not long ago, have aspired to senior judicial office in Great Britain. For this small and elite group, the indignities being visited upon senior members of the judiciary may well serve as yet another argument against taking up a judicial appointment at all. For serious contenders for high judicial appointment, the bench has always been immensely unattractive from a financial point of view: even the most generous judicial salary cannot hope to compete with the eye-watering fees commanded by those at the heights of the Bar. Those who have accepted senior judicial office have therefore done so out of a commitment to the law and a sense of public service, and with the knowledge that their work and accomplishments will be respected by their professional peers and the public. Certainly, to the type of person who becomes a judge, this latter consideration matters a great deal: to be a senior lawyer is to spend a professional lifetime assiduously courting respectability. If the furore surrounding Miller is indicative of the treatment senior judges can expect in an increasingly polarised and politically tense Britain, many of these lawyers may see a career as a judge as coming at too great a price.