‘Any society in which the safeguarding of rights is not assured and the separation of powers is not observed, has no constitution’, so said Montesquieu, the influential French political philosopher in The Spirit of the Laws 1748, whose theory of the separation of powers has been implemented in constitutions across the world.
Fast forward to the United Kingdom in 2016 and it is clear that some of our political leaders and commentators may still have a thing or two to learn from the philosophers of old when it comes to the importance of the separation of powers. It is unclear how much of the outrage surrounding the Miller Case is based on outright political opportunism or an actual misunderstanding of the separation of powers, however what is very clear is that it is posing a substantial threat to how the work of our judiciary is viewed in the public sphere.
The vitriol directed towards the high court judges has been alarming. In a democracy, for leading national newspapers to brandish judges as ‘enemies of the people’ simply because they disagree with a judgement they have made is dangerous. With the freedom of the press comes a duty to report responsibly. The High Court judgement was not a political judgement on the virtues (or lack thereof) of Brexit, it was a legal interpretation regarding situations in which the right of the executive to use prerogative powers can be exercised. It is incredibly short-sighted for anyone who believes in democracy to call into question the right of the courts to interpret the law, the third pillar of our democracy, simply because their judgement is politically inconvenient to the executive.
There are some who would have you think that it is unprecedented for the courts to rule against the executive and that the judges are overstepping the mark in the current Miller case. This is simply not true. There are countless examples throughout history where the courts have deemed that the executive has overstretched its powers and they have ruled accordingly. Recent examples can be seen in the 1995 case between the government and the Fire Brigades Union and in the 2004 ‘Belmarsh 9’ case.
Although political parties of all colours have been deemed to overstretch their powers at one point or another, the strengthening of the separation of powers is one of the great achievements of the last Labour government. The 2005 Constitutional Reform Act removed the ‘Law Lords’ from the House of Lords and created the Supreme Court, thus ensuring a greater separation between the political and the legal.
This achievement needs defending, particularly in the current context where some critics of the judiciary have been describing them as ‘unelected Judges’. This is extremely careless language and the people using it should be careful what they are wishing for. It is absolutely right that judges are unelected and we should be vocal in our criticisms of people making this argument. The judiciary must remain independent from the executive and legislative to ensure that they can be held to account legally, as well as at the ballot box every five years.
Whatever the judgement of the Supreme Court in the Miller case, in a time of increasing populism those who believe in democracy need to speak out in defence of the judiciary and its crucial role in ensuring the separation of powers.
Grace Skelton is a former national secretary of Labour Students. She tweets at @graceskelton
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