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Top ex-judges reunite to help parliament fix Brexit mess

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Cream of retired legal crop agree future of ECJ is a big problem

Left to right: Lord Neuberger, Lord Thomas, Sir Konrad Schiemann and Lord Hope

Hearing a quartet of some of the most important former judges grapple with the United Kingdom’s future relationship with the European Court of Justice (ECJ) has made it ever more clear that Brexit is very, very complicated.

Gathered in the House of Lords’ third committee room at 11:15am this morning were former Supreme Court president Lord Neuberger, former Lord Chief Justice Lord Thomas and former UK judge turned ECJ judge Sir Konrad Schiemann. Lord Hope, the former Supreme Court deputy president, popped in about 40 minutes later, apologising he’d been “being entertained elsewhere”.

The task at hand for this ensemble of retired judicial brainpower was to assist the Lords’ Justice Sub Committee, part of the select committee on the European Union, better understand the ECJ’s post-Brexit jurisdiction.

Led by Doughty Street Chambers barrister Baroness Kennedy of the Shaws, the Committee is home to its fair share of lawyers. Lord Gold, for example, is a former senior litigation partner at Herbert Smith Freehills, while Baroness Shackleton of Belgravia used to be a Farrer & Co partner. Lord Lester of Herne Hill, Baroness Ludford and The Earl of Kinnoull are all barristers.

With all that legal brainpower in one room, you’d be forgiven for thinking chatting about the ECJ would be a Tuesday morning treat for the 12-person Committee. Wrong.

The ‘this is going to be complicated’ klaxon was sounded within minutes of our arrival when Kennedy went right back to basics and opened the session by reminding those in the room (and those watching via parliamentlive.tv at home) the distinction between the different European courts. Human rights are largely the preserve of the European Court of Human Rights (ECHR) in Strasbourg which, though relevant, was not the subject of the session today. The ECJ’s raison d’être is the maintenance and interpretation of EU law. Schiemann, the only judge in the room with experience of sitting on the ECJ, stressed that while there was sometimes an overlap, “the courts are keen not to stand on each other’s toes”.

One thing the ECJ and the ECHR do have in common, though, is their ‘meddling nature’, some strands of the press would say. Kennedy believes this is a big misconception. Echoing the comments she made during a Legal Cheek interview, Kennedy said the UK had, in fact, played a “very important” role in developing European law. When asked by Kennedy if he agrees, Lord Chief Justice turned arbitrator Thomas replied:

“Of course! Most European lawyers do recognise the importance and influence of our law and our legal methods.”

How we maintain that influence is a big point of contention. Thomas finds it difficult to believe we alone, sandwiched between major influencers like the United States and the EU, could be a big player in legal development.

Moving on, the panel of judges were asked for their views on: the most workable alternative to direct ECJ influence over UK law; the possibilities of a new international court structure; the continuing relevance of instruments such as the European Arrest Warrant; and the future of the Brussels Regime (which enables citizens to obtain orders that are legally binding abroad).

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It sounds like an EU law exam from hell, but take solace in the fact even the panel of top judges couldn’t find the answers. Thomas said to the Committee:

“Every question you’ve asked us is very complicated! Unless you think things through carefully… you pay for it very heavily in the end. The sort of questions you’re asking are the right questions… [But] the difficulty a committee like this faces is the time pressure, with only just over a year to go [until the two-year limit set by Article 50 expires].”

With Neuberger conceding that “there are so many uncertainties at the moment”, a number of issues were placed by the ex-judges into the metaphorical “difficult box”. The Committee, though no doubt thankful for Neuberger, Thomas, Schiemann and Hope’s contributions, seemed flummoxed themselves at times. “Goodness, it’s complicated!” Lord Cashman exclaimed at one point, while Baroness Neuberger — who just so happens to be Lord Neuberger’s sister-in-law — told the former judges: “It’s great having you here, but I don’t think you’ve made our task any easier!”

Screenshot via Parliament TV

There were, however, some lighter moments. Everything became a bit awkward when a whole class of teenage students filed their way in at about 12:30pm to observe, many forced to stand alongside the Committee members.

And then there was Schiemann’s laughter-inducing discussion on the EU Charter of Fundamental Rights.

When asked by Kennedy if he thinks the potential loss of the Charter would be significant, he sought to explain the wide range of citizens affected by the document. He, aged 80, admitted the rights covering old people have become increasingly interesting to him of late, Kennedy giggling: “to us all!” Committee members range in age from a sprightly 54 to 82, and boast an average of 67 years. While Schiemann spent time discussing the elderly’s Charter right to engage in social activities and how this may impact his right to his local bingo club, I couldn’t help but notice a number of walking sticks resting behind the Committee tables.

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19 Comments

SingaporeSwing

Really interesting piece!

Anonymous

Apart from the headline being completely misleading, since when does a lot of coffin-dodgers sitting around pointing out difficulties constitute “helping sort out a mess”????

Anonymous

Partly explains why the country is in the mess it’s in …

Michael Hawkyard

And I thought I was the only one who describes himself (at 71) as a coffin-dodger. …. Well, I suppose if we don’t have, inter alia, knowledge of the difficulties faced before we investigate solution of them we are probably threshing about without direction. (‘scuse me, go to get off to my gym now.)

Anonymous

Interesting article – more of this, and less of the career conundrum stuff, please.

Anonymous

Informative piece. No mention of Amal. No rehashed ROF article. There is hope for Katie yet.

Anonymous

She couldn’t resist the “top” ex-judges though could she

Not Amused

Err…

Quite a few of those people are the most headline Remoaners we have.

I am not sure the value of a gilded echo chamber.

Corbyn. Symphathiser

Yes, could LC stop posting news which Not Amused doesn’t like, or mentioning people who disagree with them? Perhaps you could have articles with headlines like “Against All Evidence, Brexit Is Great!!!” over and over.

Not Amused

1. Asking people who have an incredibly strong view on a subject to be objective is asking for trouble.
2. We live in a culture where the views of these people is known, but never told to the public.

In those circumstances it doesn’t seem obviously wrong for me to say something which might warn, otherwise naïve, readers to balance the views they are being given.

I have written about decent Remain voters, for whom I have a great deal of respect. It is only fair that I also point out the less decent ones. Brexit has exposed the paucity of thinking in our country and the ugly underbelly of tribalism and narcissism. Those are topics I have long argued against, so again, it’s not surprising to find me criticising them here.

To the young these elderly people appear utterly respectable. To those of us who are older, who remember the more gifted generations who came before or who can recall (or who are lucky enough to be informed of) the foibles of the individual, they appear much less so.

Anonymous

Which of these former judges is “less decent”? I’m intrigued.

Corbyn. Symphathiser

Oh, asking people with strong views isn’t objective! I see. But you feel fine having posted that statistics which disagree with you are all politically motivated and need to be silenced? If you accept that you yourself are biased and unobjective, that would be appreciated. I’ll not hold my breath.

Hahaha, the Daily Mail and The Sun – two very pro-Brexit papers – are the best selling in the UK, and you complain that “well maybe pro-Brexit views haven’t been given a fair hearing”? Do you not understand that you won the vote? You’re like Trump and his fans who endlessly moan about Hillary “Who Needs to Campaign?” Clinton. You got what you wanted and you’re upset that not everyone fell in line like soulless incurious puppets, so you interpret any anti-Brexit information – whether it be opinion, statistics, the obvious incoherancy and incompetence of the Conservative government – as mean and biased and nasty and wah.

Someone being “decent” is obviously relative, so I’ll not venture further into this, though I note that your view is that all these judges are not decent people. Weird to be a lawyer who thinks that the judicial system is rotten from top to bottom – have you considered becoming an anarchist?

And, finally, “people who disagree with me are young and don’t know what they’re talking about”. Thanks for your re-run of this cutting edge opinion. Maybe next you’d like to inform us that policemen are getting younger and shorter? That summers used to be longer? That sixpence and ha’penny was enough to see one through the week?

I actually feel quite bad about picking on you (which I accept I do) because I am motivated (as I’ve said before) not with a view to changing your mind but to let people know that you’re not some all-knowing lawyer ideal because you appear to be a middle-aged frumph on the Internet. I’d like you to know I don’t think you’re a bad person, and I wish there was more diverse, defined personalities on LC. In the absence of this, I tend to spar with you the most (though as a busy person I’m sure it’s not really a problem or issue for you).

Thanks, and have a good day.

Anonymous

And, finally, “people who disagree with me are young and don’t know what they’re talking about”

I think N/A is also, simultaneously, claiming that the old (the judges) don’t know what they are talking about either.

Anonymous

Why do you post such drivel Not Amused ?

Anonymous

Are we leaving the EU?

Anonymous

We’re off the see the wizard, the wonderful wizard of Oz…

(More realistic than Brextremist fantasy.)

Anonymous

Belgarvia?

Anonymous

CJEU – since Lisbon.

Deed U No

Quite
On the matter, of – unemployed elderly former judges,
I’d like to guide my lords and ladyships to the job board website- nodesiretoretire.com
it contains jobs a plenty with the right transferable skills!

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