Readers will know that the High Court has recently ruled that the Government cannot trigger Article 50, the formal two-year mechanism for leaving the EU, without a vote in Parliament. The case will come before the Supreme Court next month.
Whatever the final outcome, one thing is already clear: there has been a great deal of ill-informed media comment about the role of the judiciary. As so often, however, history itself provides a corrective.
After his accession to the throne in 1625, King Charles I found himself embroiled in foreign conflicts for which he was unable to raise taxation from Parliament. Instead, he decided to levy a forced loan from wealthy landowners and merchants without parliamentary consent. This was resisted in some quarters, and in 1627 five knights were arrested and brought to trial for refusing to pay up.
It was a long-established principle that private property could not be taken from individuals without their consent, and the forced loan was seen in just this way. So there was widespread astonishment when the judges refused to grant a write of habeas corpus to free the prisoners, and widespread suspicion that they had been unduly influenced by the King.
To many people, this felt like arbitrary imprisonment by royal command; they believed that a basic safeguard of the rights of the individual, the right to a fair trial, a safeguard written into Magna Carta no less, was being set aside. If the right to enjoy one’s own private property was not safe, the thought went, then nothing was safe.
Concerns such as this led to the Petition of Right (1628), setting limits to the King’s prerogative powers, and they later gave rise to crucial clauses in the Act of Settlement 1701, which prevented judges from being removed by the monarch or by government. From then onwards the independence of the judiciary was formally written into our law, by Act of Parliament.
Judicial independence remains absolutely fundamental to the rule of law today. Legal judgments must be made impartially, without fear or favour and according to law, regardless of what the monarch, the media or politicians might desire.
This does not undermine the sovereignty of Parliament, as some have suggested; on the contrary, it affirms it. For Parliament itself has placed those judges under a specific duty to act according to law. This is a basic foundation of our democracy.