Brexit legislation could put judges on 'collision course' with government

Judges will end up on a collision course with the government if parliament does not defeat controversial clauses within Brexit legislation, the former president of the Supreme Court has warned.

Lord Neuberger told a meeting organised by the International Bar Association’s Human Rights Institute last night that the UK Internal Market Bill was ‘quite extraordinary and very worrying’. As well as allowing the UK government to breach its obligations under international law, ministers would have the right to make regulations which the courts would not be entitled to review.

Neuberger said: ‘This country has a remarkable unbroken history of 350 years of observing the rule of law and has an enviable reputation for that. At home, one of the most important aspects of any democratic society is the right of individuals to go to court to challenge the government when the government has done something wrong, when it has breached the rights of individuals. Once you deprive individuals of the right to go to court to challenge the government, you’re in a dictatorship, you’re in a tyranny.’

Lady Kennedy QC, director of IBAHRI, asked what would happen if the bill got through parliament. Neuberger said lawyers and others would go to court. He added: ‘One of the most regrettable aspects of this from the point of view of the judiciary is it will put the judges in a position where it is on a collision course with other parts of the government or it will be seen as craven… It is an unenviable position to put the judiciary in, it is not a sensible position to put the judiciary in. That’s where it will have to be fought out because that’s what the rule of law is about. You sort out problems in court. If you do not, you have civil war.’

Asked about the attack on judges, who were branded ‘enemies of the people’ in the aftermath of the article 50 case, Neuberger said: ‘The so-called “enemies of the people” upheld the rights and powers of parliament, the rights and powers of the executive… They stood up for people, for the democratically elected legislature for the people.’

Former attorney general Dominic Grieve said the law officers’ role was to ‘facilitate the government getting what it needs in a lawful manner’.

He said: ‘All this mumbo jumbo that parliament is not bound by international law – no it’s not, but the executive is, and the executive introduced this piece of legislation into parliament’.

Grieve agreed with a suggestion that the lord chancellor and attorney general should have resigned. ‘The lord chancellor takes an oath of office to respect the rule of law… the lord chancellor’s position in that context is extremely difficult and in my view untenable I regret to say as well,’ he said.

You can watch a recording of the discussion here.