So the Supreme Court has decided to stick up for itself ( the Lord Chancellor not always being forward as we might like in the role of the court’s protector).What follows is the press release dealing with Lady Hale’s speech [see here]
Here is what the Supreme Court spokesman said,
“Lady Hale was simply presenting the arguments from both sides of the Article 50 appeal in an impartial way for an audience of law students, as part of a wider lecture on constitutional law. It is entirely proper for serving judges to set out the arguments in high profile cases to help public understanding of the legal issues, as long as it is done in an even-handed way.”
This strikes me as a rather jejune statement. First it is not widely accepted that judges are free to comment on cases before they hear them. Judges may be independent but they are subject to the obligation to be impartial and to be seen to be impartial which involves the exercise of a degree of circumspection. Second if the issues in the case are to be set out in advance by the judges should that not be a collective task rather than one undertaken by a single judge?
The press release continues,
“One of the questions raised in these proceedings is what form of legislation would be necessary for Parliament to be able to lawfully trigger Article 50, if the government loses its appeal. A number of politicians have raised the same question. Though it was not dealt with explicitly in the High Court judgment, it is not a new issue. In no way was Lady Hale offering a view on what the likely outcome might be.”
This statement makes the point for itself: the question of what Parliament can and should do is a political and not a legal question. I don’t think that judges should be commenting on this at all.