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The last thing the country needs is a government in which ministers wield “unbridled power”, the UK’s longest-serving high court judge has said.
In a frank defense of the judicial system, Lord Kerr of Tonaghmore, who retired late last month, said that judicial controls on the government were part of a healthy democracy.
Kerr said he understood why governments were “irritated” by legal challenges, but warned that attacking lawyers “was not profitable.”
His comments follow criticism from Prime Minister Boris Johnson and Home Secretary Priti Patel from “activist” lawyers and “human rights leftists” whom they blame for obstructing immigration controls and “paralyzing” the justice system. penal.
The government has also created an expert panel to examine how courts address judicial review challenges, saying it wants to balance the right of citizens to challenge government policy in court with the executive’s ability to govern effectively.
Kerr, a former Chief Justice of Northern Ireland, joined the Supreme Court in 2009, when it was first formed, and served for 11 years.
In an interview with The Guardian, he rejected Patel’s description of the profession. “Lawyers are not activists,” he said. “They are reactivists. People pose problems for lawyers and lawyers decide whether they can fit into some kind of legal framework in which a legitimate challenge can be undertaken.
“I can understand that the government is less than satisfied when decisions they have made frequently after considerable deliberation are challenged… But it doesn’t seem to me that attacking the attorneys who provide the services that allow those challenges to be made… is particularly profitable. “
Ministers may be “irritated by legal challenges that may seem frivolous or ill-conceived,” Kerr said.
But, he added, “if we are operating a healthy democracy, what the judiciary provides is a mechanism to guarantee or verify the validity. [of] laws that have been enacted by parliament or the appropriate international treaties that we have signed … The last thing we want is for the government to have access to unbridled power.
However, for the ministers, he acknowledged, “on a day-to-day basis it is a difficult message. They want to get on with government business and they don’t want the interference.
“Parliament is certainly sovereign … When the government acts above the powers [parliament] has decided, it’s completely healthy and completely appropriate that there is some institution to point this out.
The Human Rights Act, he explained, was often an example of that process. “It is parliament,” he said, “that has told the judges: ‘Please look at this legislation and tell us if it is compatible with the European convention. [on human rights]. ‘”
Kerr said he “fully agreed” with comments made by former Chief Justice Lord Neuberger, who last week said the domestic market bill, which allows the government to violate international law and exempts some of his powers of legal challenge, he was in danger of leading the UK down a “very slippery slope” toward dictatorship or tyranny.
The Internal Market Bill aims to enforce compatible rules and regulations regarding trade in England, Scotland, Wales and Northern Ireland.
Some rules, for example around food safety or air quality, which were previously established by EU agreements, will now be controlled by decentralized administrations or Westminster. The internal market bill insists that decentralized administrations must accept goods and services from all nations of the UK, even if their standards differ locally.
This, the government says, is in part to ensure that international traders have access to the UK as a whole, relying on the standards and rules to be consistent.
The Scottish government has criticized it as a Westminster “takeover”, and the Welsh government has expressed fear that it will lead to a race to the bottom. If one of the countries that make up the UK lowers its standards, for example on the importation of chlorinated chicken, the other three nations will have to accept chlorinated chicken as well.
It has become even more controversial because one of its main goals is to empower ministers to pass regulations even if they are contrary to the withdrawal agreement reached with the EU under the Northern Ireland protocol.
The text does not disguise its intention, stating that the powers contained in the bill “have effect without prejudice to any relevant international or national law with which they may be incompatible or incompatible.”
The bill overcame its first hurdle in parliament by 77 votes, despite rebellion from some Tory MPs.
Martin Belam Y Owen bowcott
The influential Judicial Branch project, part of the Policy Exchange think tank, has recently questioned whether the Supreme Court should be abolished on the grounds that it indulges in “judicial activism,” intervening in matters that are supposed to be left to politicians.
But Kerr, who was a warlord before the UK’s highest court was transferred to the supreme court, said he “completely rejected the notion that we are more willing to interfere in government decisions than our predecessors in the House. of the Lords “.
The estimated cost of £ 56 million to create the supreme court in Parliament Square was worth it, Kerr said. “Coming like me from Northern Ireland, I think a point of symbolism is not bad. I think it was very important to make it clear in the public mind that the court is totally independent from parliament and the government. “
Kerr sat on both the 2016 Article 50 Brexit case and the 2019 extension case, in which he was an active and close interrogator of government submissions.
His previous experience as the government’s chief crown attorney in the courts of Northern Ireland, he suggested, may have been helpful. “When I appeared, as I did, before the judges in [Belfast] who had previously held my position, were the most testers and with good reason.
“The government’s position should be strongly tested … It was a very interesting case. I couldn’t resist asking questions. “
The government lost both cases when judges defended the sovereignty of parliament and its powers to control legislation.
Both landmark rulings, Kerr emphasized, “had nothing to do with the court conducting any kind of political analysis. All the magistrates … were very aware that we must be aware of the perimeter between judicial decisions and avoid meddling in political areas ”.
