The constitutional principles of the independence of the judiciary and the rule of law were tested severely by the furore which arose from the decision of a very strong High Court bench (Thomas LCJ, Etherton MR and Sales LJ) in the case of Miller and others v the Secretary of State for Exiting the European Union  EWHC 2768.
Since Article 50 of the Treaty on European Union states that any Member State may decide to withdraw from the EU “in accordance with its own constitutional requirements” and the UK’s unwritten constitution is silent on the matter, it was both inevitable and right that the Court was asked to determine precisely what are the UK’s constitutional requirements for withdrawing from the EU. It is also right for that decision to be appealed to the UK Supreme Court so the matter can be resolved conclusively.
I know a little about this subject because I teach Public Law on the GDL at Cardiff University. It seemed to me that it was likely that Parliament, which is sovereign, rather than the Crown using its prerogative powers, should give notice of withdrawal under Article 50(2). The question for the Court to consider and the judgment it delivered were about due process. The case is about how the Article 50 notice should be given, not whether it should be given. The judgment is at pains to make this perfectly clear. It was regrettable, mischievous and shameful for certain parts of the press and particular politicians to claim otherwise. It is also worrying that Liz Truss, the new Lord Chancellor, who recently swore an oath to respect the rule of law and defend the independence of the judiciary, took so long to respond to the judgment and support the judges. She still hasn’t condemned the press and she should be ashamed of herself.
The Law Society has spoken out in favour of the judges and attacked the press. Sadly, its contribution was overshadowed by the prominence given to the Bar Council’s defence of the judiciary. The Bar Council met on 5 November, 2 days after the judgment was given and was therefore able to give a swift and authoritative response to the press attacks which had been endorsed by its council. But I want to point out that the Law Society has being supporting the judiciary, too.
I am mentioning this case at the beginning of this article as it is the most important case of the century so far (although it will be eclipsed by the Supreme Court decision) and constitutional issues are the theme of the article. The constitutional issues which the Law Society is presently grappling with are trivial in comparison to Article 50.
Governance issues dominated the October council meeting which was held, once again at ICAEW hall. By the end of the meeting it had been decided that:
• To establish a new Main Board;
• This Board will be chaired by a solicitor;
• The other Board members will be the three office holders (President, Vice President and Deputy Vice President), 5 other council members, two solicitor members who are not council members, up to 2 lay members and the chief executive;
• The lay members of the Main Board and the chief executive will not have a vote; and
• There will be no limit on the number of consecutive terms of office for council members.
This is the first step in the review of the Law Society’s governance. The next steps are to review the size and membership of council and the Law Society’s boards and committees.
I am broadly in favour of what has been agreed. I applaud the president for the manner in which he has led council through a number of debates which were potentially unpleasant but were conducted in a civilised and good humoured way thanks to his chairmanship. I am not completely convinced of the need for lay members on what looks to be a very large board (it has up to 14 members) and I am concerned that the role of president will be diminished by the new role of chairman of the Main Board (whose term of office will be 3 years rather than the 1 year of a president’s term). However, these points were aired thoroughly at the meeting, everyone who was present had an opportunity to contribute to a debate which was not guillotined and these matters have been decided for now.
The size and composition of council is always an unpleasant topic for discussion. It will certainly be on the agenda of the December meeting and I expect the vote to be taken at the February meeting. I will be arguing strongly for adequate Welsh representation when this issue is debated, but I fear that the current quota of 5 council members from Wales will shrink to 3 or even 2 if the hardline reformers have their way. Perhaps more controversially, I will be arguing for the continuation of the rule which allows solicitors who do not have practising certificates to be council members. The woman who was commissioned to review the workings of council this time last year wished to restrict council membership to practising solicitors and I suspect this reform is still on the agenda.
My article is mercifully short this month. This is mainly because I have written another article for this issue and my deadline for submitting this article expires in 15 minutes’ time. So I will now wish all of you and yours and very merry Christmas and a happy and prosperous New Year. I hope that 2017 may be a more settled year than its predecessors.
I will conclude by mentioning a member of the judiciary, since I started by referring to the constitutional need for the judiciary’s independence. Our Designated Civil Judge, HHJ Seys Llewellyn QC is about to retire. He has adorned legal Life in Wales with his decency, his kindness, his intelligence and his dry sense of humour. He has been a strong supporter of both Cardiff and District law society (even attending our annual dinner on his birthday!) and the Confederation of South Wales Law Societies, for whom he spoke every year at their Civil Updates Day. He has also helped raise thousands of pounds for Reaching Justice Wales and I hope we will see him at the Cardiff Legal Walk in future. Thanks you, judge, for your support, particularly your support for me when I was president of Cardiff and District law society. I hope you have a long and happy retirement. n
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