Brexit Pops the Question for U.K. Courts: How Powerful Are You?

LONDON (Capital Markets in Africa) – The white-haired Supreme Court judge leaned forward with a stern look, interrupting a lawyer who argued that Prime Minister Boris Johnson’s suspension of Parliament was unlawful.

Justice Nicholas Wilson was miffed at Ronan Lavery for describing the Brexit risks to peace in Northern Ireland. That exposed the decade-old court to an accusation it’s been at pains to disprove: that it has become a player in the U.K.’s political arena.

Played out with hundreds of thousands of Britons watching on live television, the tense moment shows how a centuries-old democracy with no supreme-court tradition is in uncharted territory as politics splinters over leaving the European Union. The 11-judge panel will rule this week on whether Johnson’s five-week suspension — weeks before the Brexit deadline — was legal.

Viewers “might get entirely the wrong impression that we’re discussing Brexit or Northern Ireland,” Justice Wilson admonished Lavery during arguments on Thursday. “Don’t abuse our politeness and don’t abuse Lady Hale’s patience,” he said, referring to Supreme Court President Brenda Hale.

The case landed in the nation’s highest court after legal challenges in London and Scotland resulted in conflicting outcomes. Its first step is to determine whether to hear the case or, as Johnson’s team argues, leave it to the politicians to resolve.

The justices may have been busily distancing the supposedly staid judiciary from the hurly-burly of Parliament. Yet the hearings are the latest sign that the courts are more central to British public life than ever before.

Alan Beith, a Liberal Democrat peer in the upper house of Parliament, attests to that.

“There has been a significantly higher willingness by the judiciary to ensure that the executive acts within the law,” said Beith, who headed Parliament’s Constitutional Affairs committee when the Supreme Court’s creation was approved in 2005. “There are some people who say they’re going too far, but then again others are very happy about it.”

Modern Court
The court, which started operating only a decade ago, may have echoes of the U.S. Supreme Court but its reach is markedly shorter. The judges aren’t political appointees and, with no written constitution to interpret, they rarely strike down laws.

While the U.K. prides itself on being the mother of democracy, the highest court was until recently a group of peers sitting on the auburn upholstered benches of the House of Lords, the upper house of Parliament.

No one suggested that the Law Lords weren’t impartial. Still, former Prime Minister Tony Blair wanted to change the optics as the U.K.’s component parts — Scotland, Northern Ireland, and Wales — assumed more local legislative control and European laws were strengthened.

“We’d go around the world arguing for the separation of powers and what did we have at home?” Beith recalled. “It was an indefensible anomaly.”

The change has led to the spectacle of split rulings, including last November over a challenge to the legal ban on assisted dying and in a case in May on court oversight of a spying tribunal.

One judge, Robert Carnwath, addressed the question of judicial reach: “That it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.”

Cultural Divide
Brexit has elevated the Supreme Court to an ever-present player in public life and revealed its willingness to rein in the executive. In 2017, the court sat with 11 judges for the first time. They ruled the government needed Parliament’s approval before starting Brexit negotiations.

“There is a cultural division within the courts,” said Richard Ekins, a law professor at the University of Oxford and head of a project on judicial power at the Policy Exchange think tank, which often channels ideas for Conservative politicians.

“Some judges see themselves as the guardians of the constitution or are keener on protecting human rights as they see them and so on,” Ekins said. “Others have a clearer sense of the proper limits of judicial power. What happens next depends on the changing political culture.”

Johnson set up this epic court clash when he tested political convention to the breaking point by suspending or proroguing, Parliament until about two weeks before the Oct. 31 deadline for a Brexit deal with the EU.

Without the horsehair wigs and flowing robes associated with English judges and led by one of the judiciary’s more progressive thinkers, giving them the aura of modernity, they took part in their own existential debate last week. So just as the U.K. leaves the EU, its judiciary may be more aligned with western European traditions than ever before.

“Are we being asked to inquire into a political decision or are we being asked to determine whether it clashed with a precious legal principle?” Justice Wilson said. “If there’s anybody better placed to protect the legal principle of parliamentary sovereignty, it is us here.”

Source: Bloomberg Business News