But Lady Hale appears to have already upset pro-leavers
Lord Kerr has spoken for the first time about next month’s Supreme Court Brexit appeal hearing, taking the opportunity to reassure the public — and hopefully a few newspaper editors — that the court’s decision will be based on law and not the “personal views” of the judges involved.
In an unprecedented move, all 11 Supreme Court justices — including Kerr (pictured top) — will hear the Article 50 appeal on 5 December, after the government lost out in the High Court earlier this month.
The result created a media backlash, with one newspaper branding the judges involved “enemies of the people”, while others appeared to suggest they were somehow pro European Union.
With the Supreme Court case less than a month away, Kerr has told BBC Radio 4 show The World Tonight that despite what many sections of the media might claim, it’s the judiciary’s function to “apply the law”, uninfluenced by the “personal views”of the judges involved.
The top judge, who was recently described as an “unashamed champion of the Human Rights Act” by The Daily Mail, said:
We are not involved in reaching decisions based on anything other than the legal principles as they are presented to us and the legal analysis which we conduct as to these extremely difficult and complicated questions.
Continuing, Kerr — who is one of the inaugural Supreme Court justices, having been elevated to the position in 2009 — revealed that while he and his colleagues do have “personal views” on Brexit, they are “extremely conscious” about setting these aside during the case.
Despite describing the public interest in the case as “entirely healthy”, Kerr — having already been attacked by certain section of the press — admitted that he’s “not particularly looking forward” to it. Revealing that Supreme Court staff are already bracing themselves for the big Brexit hearing, Kerr said:
Our communications staff and our reception staff are well prepared to cater for that public interest and to ensure that as much facility for those who are interested in it is provided, so that the public can hear the arguments as they are presented.
Kerr’s comments come after Deputy President of the Supreme Court, Lady Hale, revealed that the government is now back tracking on its argument that the Article 50 issue was non-justiciable. During a speech in Kuala Lumpur, just days after the High Court decision, she told law students:
As is well known, the referendum on whether the United Kingdom should leave or remain in the European Union produced a majority of 51.8% in favour of leaving. But that referendum was not legally binding on parliament.
Continuing, Hale appeared to express concern for the “difficult and delicate issues” surrounding the relationship between parliament and the government. She said:
Another question is whether it would be enough for a simple act of parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement of the 1972 act.
According to The Guardian, Hale’s speech — which was only published online yesterday — has sparked anger amongst a number of “pro-Brexit Tories”.
Iain Duncan Smith MP slammed Hale, arguing that it’s not for judges “to tell parliament how they should go about that business”. Elsewhere, Dominic Raab warned that “if judges dip their toes in political waters by making speeches outside the courtroom, they are asking to get splashed back”.
Keen to clarify Hale’s comments, the Supreme Court issued a statement late last night, claiming that the top judge was “simply presenting arguments from both sides of the Article 50 appeal in an impartial way”. Continuing, the statement said that it “was entirely proper” for judges to explain “high profile cases” to ensure the public understood the “legal issues” involved.
A response to some reactions to Lady Hale's lecture on constitutional law (which included an explanation of the Article 50 #Brexit case) pic.twitter.com/p1IeiF7Cev
— UK Supreme Court (@UKSupremeCourt) November 15, 2016
The appeal hearing is likely to last four days, with the decision expected in the new year.