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The Constitutional Role of the Judiciary: Precedents and Position?

Publication date: Tuesday, 8th June 2021
PDF: The Constitutional Role of the Judiciary: Precedents and Position?

The legal process prompted by the UK’s withdrawal from the European Union culminated in two Supreme Court decisions. These have raised serious questions about the role of the judiciary in the UK’s constitution.

In Politeia’s latest publication: The Constitutional Role of the Judiciary: Precedents and Position, The Rt. Hon. David Jones MP, Deputy Chairman of the European Research Group and former Minister at the Department of Exiting the European Union (2016-2017), explains the intersecting roles of the three branches of government throughout the Brexit process.

He argues that the role of the Courts during the Miller cases leading to the decision of the judiciary to nullify the prorogation of Parliament is an ‘unwelcome’ development which politicises the judiciary and poses a potential danger to national security. Jones observes:

“Might it (the judiciary) decide that a treaty concluded pursuant to the prerogative power was unlawful and strike that down? Might it decide that the use of military force without Parliamentary approval is also unlawful? Imagine the potentially catastrophic impact on the nation’s security if, at a moment of extreme national peril, the Government were obliged to engage in litigation brought forward by an aggrieved pacifist.”

Jones observes that the process of the UK’s withdrawal from the European Union started a constitutional debate about respective roles of the three branches of government. He concludes:

“The present position therefore appears to be that the constitutional role of the judiciary is unclear; Parliament has one view of it, the judges another. Furthermore, the judges would appear to have their own, rapidly evolving view of the constitutional role of Parliament itself”

Recalling that The European Union (Withdrawal Agreement) Act 2020 includes ‘the ringing declaration: It is recognised that the Parliament of the United Kingdom is sovereign’, Jones concludes:

The troubling question is what will happen if, when the force of that declaration comes to be tested, the response of the Supreme Court is: “Says who?”

 
Notes to Editors:
The Constitutional Role of the Judiciary: Precedents and Position? by David Jones MP will be published by Politeia on Tuesday, 8th June 2021.

  1. Established in 1995, Politeia is an independent, non-partisan think-tank providing a forum to discuss economic, constitutional and social policy with a particular focus on the role of the state in people’s lives.
  2. The Constitutional Role of the Judiciary: Precedents and Position? by David Jones MP will be published on Tuesday, 8th June 2021.
  3. This is an updated and revised text specially prepared for publication of an analysis by David Jones MP for the Politeia-BPP Law School series, The Constitutional Role of the Judiciary: Precedents and Position? given at the opening event on the 23rd April 2021.
  4. The Rt Hon David Jones MP has been Member of Parliament for Clwyd West since 2005. He served in government as Secretary of State for Wales between 2012 and 2014 and later as Minister of State at the Department for Exiting the EU between 2016 and 2017. He is currently a member of the Public Administration and Constitutional Affairs Committee and European Scrutiny Committee.

The Rt Hon David Jones MP

David Jones has been Member of Parliament for Clwyd West since 2005. He served in government as Secretary of State for Wales between 2012 and 2014 and later as Minister of State at the Department for Exiting the EU between 2016 and 2017. He is currently a member of the Public Administration and Constitutional Affairs Committee and the European Scrutiny Committee.

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