- Advocate General for Scotland, Lord Keen, says that First Minister Nicola Sturgeon cannot veto Brexit
- James Eadie QC reveals Theresa May may table ‘one-line’ bill to start Brexit if they lose Supreme Court appeal
- Gina Miller smiles as she enters Supreme Court for second day for most important appeal case in UK history
- 11 judges asked to overturn last month’s ruling that the PM must seek MPs’ approval to trigger Brexit
- Attorney General Jeremy Wright blasts High Court’s ‘wrong’ decision and says PM must act on June 23 vote
- Government QC James Eadie says it would be ‘bizarre’ if MPs voted on something the public already decided
Martin Robinson, Uk Chief Reporter For Mailonline
Scotland’s devolved powers do not extend to stopping Brexit in its tracks, the country’s top lawyer told the Supreme Court today.
Advocate General for Scotland, Lord Keen, says that First Minister Nicola Sturgeon and the Edinburgh Parliament cannot veto triggering Article 50 of the Lisbon Treaty because the UK Parliament is sovereign on foreign affairs.
He said: ‘Our relationship with the European Union is not within the competence’ of the devolved nations – Scotland, Wales and Northern Ireland. He also said it was not for the courts to intervene either.
It also emerged today that Theresa May could force a new ‘one-line’ bill through Parliament to trigger Brexit if judges write off the result of the EU referendum as ‘legally irrelevant’.
James Eadie QC – known as the ‘Treasury Devil’ because he argues the Government’s most crucial cases – has insisted that the verdict of the people on June 23 should be binding.
He also rejected the suggestion that its Brexit strategy is an ‘affront’ to parliamentary sovereignty.
11 Supreme Court judges are being asked to overturn last month’s High Court ruling spearheaded by remainer Gina Miller that Theresa May must ask Parliament for permission to trigger Brexit.
WATCH THE SUPREME COURT LIVE HERE:
Legal battle: Advocate General for Scotland, Lord Keen, left today, says devolved powers do not extend to stopping Brexit while James Eadie QC, right – known as the ‘Treasury Devil’ because he argues the Government’s most crucial cases – has insisted that the verdict of the people on June 23 should be binding
Day two: Gina Miller – again flanked by a security detail (far left and far right) – arrives at the Supreme Court in her battle to prevent Theresa May triggering Brexit herself. Her financier husband Alan was with her (pictured centre, furthest at the rear)
Grin: Ms Miler, a successful investor in her own right, smiled to pro-EU supporters who again gathered outside Britain’s highest court
In a major hint about what the Government might do if it loses one of the most important appeal cases in British legal history, Mr Eadie said: ‘If the Supreme Court decides against our arguments here then the solution in legal terms is a one-line act’.
Warning: Scotland’s top lawyer has said that Westminster is sovereign over Nicola Sturgeon, pictured yesterday, and the Scottish Parliament on the EU and foreign affairs
He added: ‘Maybe that would lead to all sorts of parliamentary complication and possible additions and amendments and so on, but that’s the solution.’
Mr Eadie, in concluding remarks, told the justices: ‘It is said that the Government giving Article 50 notice is an affront to Parliamentary sovereignty because Parliament has created rights and only it can alter them,
‘Our case fully respects, and offers no affront, to Parliamentary sovereignty.’
The QC said: ‘Parliament is already deeply involved, and unsurprisingly involved, in the whole process of withdrawal’, adding: ‘Parliament can look after itself’.
Mr Eadie said the Government would ‘address policy area by policy area’ to see ‘what the brave new world should look like’.
He argued that the ‘apparent simplicity’ of the case put forward by those challenging the Government’s use of the prerogative ‘represents, we submit, a serious constitutional trap’.
If the Supreme Court ruled against the Government, then the ‘courts would be imposing, in effect, a new control of the most serious kind in a highly controversial, and by Parliament, a carefully considered, area’, he said.
The judges are expect to rule on the case in January.
Remain star Gina Miller arrived at the Supreme Court today – again flanked by heavy security – for day two of the battle for Brexit.
The millionaire ex-model, 51, was also accompanied by her husband Alan, nicknamed ‘Mr Hedge Fund’ because he made £30 million after starting one of the City’s first in 1997.
Ms Miler, a successful investor in her own right, smiled to pro-EU supporters who again gathered outside Britain’s highest court for day two of one of the most important appeal cases in British legal history.
She says she requires bodyguards and has spent £60,000 on security because of online rape and death threats – yesterday the Supreme Court’s top judge warned trolls they would be prosecuted.
Her lawyers argue that Theresa May must ask Parliament for permission to trigger Brexit – Mrs May argues that the vote to leave the EU on June 23 gave her the mandate to do it herself.
Stand-off: Protesters outside the Supreme Court in London, on the second day of the Government’s appeal against a ruling that the Prime Minister must seek MPs’ approval to trigger the process of taking Britain out of the European Union
On the second day of the government’s appeal, Eadie told the court that by giving approval for June’s referendum on whether Britain should leave the EU, parliament had accepted that Article 50 would have to be triggered in the event of a ‘leave’ vote as that was the only way to implement the result.
Britons voted for Brexit by 52 to 48 percent and the government has said this mandated it to begin the divorce process using a historical ‘prerogative’ power where ministers act on behalf of the monarch without going through parliament.
May has also promised that lawmakers would be given plenty of opportunities to have a role in the exit process.
‘The idea that parliament will not be involved can’t possibly be sustained,’ Eadie said.
As well as hearing further submissions from the Government, the judges will start to hear argument this afternoon on behalf of Gina Miller.
The justices are also set to hear from other parties, including Northern Ireland and the Welsh and Scottish Governments.
Yesterday the Supreme Court judges were warned not to make the ‘bizarre’ decision to let MPs vote on whether to trigger Brexit when the public has already demanded it.
James Eadie QC said that Parliament voted to hold an EU referendum knowing it would be for Britain to decide on June 23, not them.
He said: ‘Was Parliament really in 2015 doing no more than simply reserving to itself the right to decide whether to leave or not as it saw fit? Not merely is that highly improbable – it would be little short of bizarre if that were to be the position’.
The Government has appealed to the Supreme Court after the High Court ruled last month that the Prime Minister can only trigger Brexit following a vote in Parliament – rather than use her prerogative to act on the referendum result.
Attorney General Jeremy Wright QC said the High Court made the ‘wrong’ decision because the EU vote was written off as ‘legally irrelevant’ even though it was set up with the ‘universal expectation that the Government would implement its result’.
And in a stinging rebuke for the Remain supporters opposed to Theresa May triggering Article 50 of the Lisbon Treaty he told the court: ‘If this is all about standing up for Parliament, I say Parliament can stand up for itself’.
The Supreme Court justices acknowledged the case has stirred up ‘strong feelings’ throughout the nation and vowed to stay impartial as they consider whether the Government has the power to trigger Britain’s departure from the EU.
It came as the Supreme Court’s top judge issued a stark warning about online abuse as remain figurehead Gina Miller was flanked by a team of bodyguards.
Mrs Miller, 51, says she has had death and rape threats as she also jumped to the defence of the ‘disgracefully vilified’ 11 judges who will decide on her Brexit battle this week.
Supreme Court President Lord Neuberger started the four-day appeal hearing – dubbed one of the most important cases in British legal history – with a warning to those who have targeted Ms Miller and others with abusive emails and social media messages.
He said: ‘Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law.
‘Anyone who communicates such threats or abuse should be aware that there are legal powers designed to ensure that access to the courts is available to everyone’.
The judge said that no addresses of people involved should be published to protect them.
Courtroom drama: James Eadie QC – known as the ‘Treasury Devil’ because he argues the Government’s most crucial cases – back on his feet addressing the 11 judges
Critics highlighted how four of the 11 judges have formal links to the EU or linked institutions – and five have publicly expressed views which appear sympathetic to the EU and its aims.
Mrs Miller, 51, pictured today, says she has had death and rape threats as she also jumped to the defence of the ‘disgracefully vilified’ 11 judges who will decide on her Brexit battle this week
Lord Neuberger said: ‘This appeal is concerned with legal issues and, as judges, our duty is to consider those issues impartially, and to decide the case according to the law. That is what we shall do’.
All the parties involved in the Supreme Court battle over Brexit have formally given their backing to the 11 justices hearing the historic case, it was announced at the start of the hearing.
Lord Neuberger, the court’s president, said all parties had been asked whether they wished any of the judges to stand down and he said that they have no objection to any of the justices sitting on the appeal.
The Government is again being represented by Attorney General Jeremy Wright QC, who warned judges not to defy the ‘will of the electorate’ or ‘stray into areas of political judgment’.
Mr Wright said that the prerogative was not ‘an ancient relic’, but a ‘constitutional necessity’ that had been used regularly by prime ministers.
Wright said the government wasn’t using prerogative powers ‘on a whim or out of a clear blue sky’ but as the result of a process in which Parliament had been ‘fully and consciously involved.’
He told the justices that the case was of ‘great constitutional significance in which there is understandable and legitimate interest both inside and outside this courtroom’.
He said lawmakers had passed the European Referendum Act of 2015, laying out the rules for a referendum on EU membership, in ‘universal expectation … that the government would implement its result.’
‘Secondly, in the light of what followed the Divisional Court (High Court) judgment, it should be said with clarity this is a case which the claimants brought perfectly properly and which it is now perfectly proper for this court to decide.’
It was for the Government to exercise prerogative powers in the conduct of the UK’s affairs on the international plane.
He told the judges that triggering Article 50 ‘will not be an exercise of the prerogative right on a whim or out of the blue’ but was part of a process in which ‘Parliament has been fully and consciously involved’.
Mr Wright said the use of the prerogative in the circumstances would be lawful.
James Eadie QC, also representing the Government, described the prerogative as ‘a long-standing, well-recognised set of powers firmly established in our constitutional arrangements’ which were ‘fundamental to our constitution and essential to effective government’.
The 11 judges who will decide on the case file into the Supreme Court yesterday at the start of the four day hearing
The chosen ones: Members of the Supreme Court, back row from left, Lord Carnwath, Lord Sumption, Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge. Front row from left: Lord Kerr, Deputy President Lady Hale, President Lord Neuberger, Lord Mance and Lord Clarke
He added: ‘It’s no small thing to alter the constitutional balance by limiting long-standing powers’.
He also argued that although when Britain joined in 1972 it was agreed in a referendum and in Parliament – but the then European Communities Act does not demand a vote for MPs if Britain decided to leave.
He said: ‘Article 50 was not even a gleam in someone’s eye at that point’.
JUDGE BLASTS LACK OF DETAIL ON EU REPEAL BILL
One of the Supreme Court judges criticised the lack of detail on Theresa May’s Great Repeal Bill.
Lord Carnwath (pictured) says he has been looking for detail on the piece of legislation the Prime Minister plans to use to remove the act that took the UK into the EU.
When he asked Government QC James Eadie if he had any more detail he said he would have to come back to him.
It was announced at the Tory party conference on October 7.
Lord Carnwath said: Do we have any evidence about that? About what it is, what it’s going to do?
‘It seems to be of some relevance to ask ourselves, what is Parliament’s role going to be between now and the end of the two years?
‘I think there’s been a statement at the Conservative Party conference. Has there been anything else?’.
He added that ministers are allowed to tweak Britain’s relationship with Brussels without a vote and should be able to do the same after a referendum.
Lord Neuberger is leading a panel including Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge.
If the Government’s appeal is unsuccessful, and any potential further appeal to the European Court of Justice in Luxembourg also fails, the Government’s plans for Brexit could be thrown into disarray.
But Mrs May has made it clear she still intends to give an Article 50 notification by the end of next March to start the leave negotiations with 27 other EU countries.
The High Court ruling was won by Gina Miller, 51, an investment fund manager and philanthropist who was selected to bring the lead case.
She reported that her high-profile role had led to death threats and she had spent £60,000 on security, but she is returning to the battle represented once more by Lord Pannick QC.
Her case is being supported by ‘concerned citizens’ drawn from all walks of life, including London hairdresser Deir Dos Santos, 37, who helped start the legal battle over Brexit but, say his lawyers, has been forced underground after receiving ‘vile’ hate mail.
The Attorney General said: ‘The country voted to leave the European Union in a referendum provided for by an Act of Parliament.
‘The Government is determined to respect the result of the referendum. The Government’s case is that it does have legal power to trigger Article 50 on the timetable set out by the Prime Minister. We do not believe another Act of Parliament is necessary.’
Counsel General for Wales Mick Antoniw said: ‘The people of the UK voted to leave the European Union. I respect that decision and we will not work against the referendum result.’
He said: ‘Leaving the EU will lead to significant changes to the devolution settlement in Wales – only the UK Parliament can make those changes, which should be with the agreement of the National Assembly for Wales.’
The Welsh Government’s legal team ‘will argue that the judgment of the High Court should be upheld, and that an Act of Parliament is required for the UK Government to give notice under Article 50’.
BATTLE FOR BREXIT EXPLAINED: RECORD 11 JUDGES WILL RULE ON ARTICLE 50 CASE
Who is hearing the case?
Eleven Supreme Court justices – a record number to hear an appeal.
What is the issue?
The panel is being asked by the Government to overturn a High Court ruling that the Prime Minister must seek MPs’ approval to trigger the process of taking Britain out of the European Union.
Who made the ruling at the High Court and when?
A panel of three judges in London – headed by Lord Chief Justice Lord Thomas – made the ruling on November 3.
Who is presenting the case for the Government?
The Government’s top law officer, Attorney General Jeremy Wright, will be arguing the case for quashing the High Court decision.
What will he argue?
The justices will be asked to find that the High Court ‘erred’ in its ruling, and that it is for the Government to exercise prerogative powers in the conduct of the UK’s affairs on the international plane.
Who else will be presenting arguments?
The justices will hear from a wide range of parties, including the Scottish and Welsh Governments and from Northern Ireland.
How long will the case take?
The legal submissions will be heard over four days.
When will there be a ruling?
Not until the new year.
The judges and the people: The 11 unaccountable individuals who will consider a case that could thwart the will of the majority on Brexit. The Mail makes no apology for revealing their views – and many have links to Europe
By Guy Adams for the Daily Mail
A decision by the Supreme Court against the Government’s right to trigger Article 50 would raise profound questions about the power of an unelected judiciary to over-ride the will of the British people.
In this context, it is vital that the judges are seen to be independent. Yet four of the 11 members of the Supreme Court have formal links to either the EU, its courts or European institutions; five have publicly expressed views which appear to be sympathetic to the EU; while six have personal links with individuals who have been critical of the Leave campaign.
Only four have no obvious associations with the Remain ethos. Just one, Lord Sumption, has given indications of Euroscepticism.
Crucially, the British justice system revolves around the principle that judges — and particularly Supreme Court judges — are fair-minded individuals capable of treating all cases entirely on their legal merits, regardless of their private loyalties.
So who are these men and one woman? How do they each view the EU and its influence on British law? And what personal beliefs (if any) must they put aside to give dispassionate hearing to one of the most important court cases in our country’s history?
Neuberger: Praised influence of EU law
1. Lord Neuberger of Abbotsbury
Education: Westminster & Oxford
President of the Supreme Court, who, with his wife, Angela, divides his time between a £3 million mews house in London’s Notting Hill and a country home in Dorset.
Lady Neuberger — a TV producer and one-time Labour aide, who has made films for the EU — has in recent months used Twitter to launch roughly 50 attacks on Theresa May, her Government or Brexit.
‘So many lies, so much ignorance. It’s the poorest will suffer most from Brexit,’ reads one. The referendum is ‘dangerous’ because it ‘reduces complex issues to yes or no’ says another.
A week before the vote, she declared ‘referenda mad and bad’ and dismissed Ukip and Brexit as ‘just a protest vote’. Six days afterwards, she posted a Remain-friendly message: ‘It seems unlikely a PM could trigger Article 50 without Parliament’s approval.’
Of course, one expects Lord Neuberger to ignore such views when sitting as Supreme Court president. Another person close to him with strong anti-Brexit views is his sister-in-law Julia, a Leftish peer who used to take the Lib Dem whip (but became a crossbencher in 2011 when she took a job as a full-time rabbi).
She recently announced she has decided to apply for a German passport due to shame over the referendum result, criticising the ‘anti-immigrant’ nature of the Leave campaign.
Neuberger was until recently a governor of the University of the Arts, London — whose vice-chancellor, Jeremy Till, emailed students on the day after the EU referendum to say that the Leave vote ‘breaks my heart’, adding: ‘I make no apologies in sharing my shock and dismay.’
As for Neuberger, he has expressed views that betray an empathy with EU legal institutions. In 2013, he told The Times he would oppose withdrawal from the European Convention on Human Rights, favouring a ‘dialogue’ with Strasbourg.
In August, he praised the influence of the EU on common law in the UK, saying: ‘Studying and sometimes applying the reasoning of the Strasbourg court has led UK courts to take a more principled and structured approach.’
Last week’s Spectator magazine reported that he recently told an acquaintance ‘the High Court would be right to find against the Government and that he would support it’.
All of which has prompted Eurosceptic MPs to call for Neuberger to stand down from next week’s hearing. Tory Andrew Rosindell says: ‘Clearly, his position is compromised.’ It must be noted that the Supreme Court’s code of conduct warns justices to be aware ‘that political activity’ of a close relative can raise concerns over impartiality.
However, officially, the court is ‘absolutely confident’ there has been no breach in Neuberger’s case.
Hale: Happy for EU courts to overrule UK
2. Lady Hale of Richmond
Education: Richmond High (a grammar) & Cambridge
They don’t come more progressive than Hale, the most senior female judge in British history, whose coat of arms carries the motto Omnia Feminae Aequissimae, meaning ‘women are equal to everything’.
A prominent critic of the tradition of wigs being worn in court, she achieved prominence as a Law Commissioner during the Eighties and Nineties making countless pronouncements said to have undermined the institution of marriage. ‘We should be considering whether the legal institution of marriage continues to serve any useful purpose,’ reads one such remark, from an academic essay.
In another typical article, she asked: ‘Do we still think it necessary, desirable or even practicable to grant marriage licences to enter into relationships?’ Her own marital history seemed to dovetail with this theme. In 1984, shortly after being appointed to the Commission, she left first husband John Hogget for a fellow commissioner, Julian Farrand.
They married just 12 days after the divorce came through. Today, she and Farrand have homes in Westminster and Richmond, North Yorkshire, where his Remain activist son, Benjamin, is occasionally resident.
She recently backed a European Court of Human Rights ruling over votes for prisoners, and in a 2015 speech in Oxford spoke favourably about the process via which European courts can overrule British ones.
Most troubling, though, was a recent speech in which she suggested the Government might have to create a ‘comprehensive replacement’ for the European Communities Act before triggering Article 50, which could delay Brexit for years.
Critics said these comments risked breaking the fundamental rule of litigation: that judges should respond to arguments made in court, not introduce them into a debate beforehand.
They also wondered how her speech conformed with the Supreme Court’s Guide to Judicial Conduct, which tells judges to ‘show appropriate caution and restraint when explaining or commenting publicly upon their decisions in individual cases’.
The Supreme Court responded by saying Hale ‘was simply presenting the arguments from both sides of the Article 50 appeal in an impartial way for an audience of law students.’
Mance: Made fawning speeches in Luxembourg
3. Lord Mance
Education: Charterhouse & Oxford
Began his career at a Hamburg law firm in the early Sixties, and has retained intimate links with the European legal establishment ever since.
He represented the UK on the Council of Europe’s Consultative Council of European Judges (an advisory body of the Council of Europe) for over a decade, and served on the Lords EU Select Committee.
His enthusiasm for the European project was made clear in 2013, soon after David Cameron announced an in-out referendum, when he said: ‘I remain an optimist that future developments will meet the concerns of all but the most extreme Eurosceptics and that the UK’s relationship with the Court of Justice will continue.’
Last year, he made a fawning speech in Luxembourg upon the retirement of Vassilios Skouris as President of the European Court of Justice, declaring that his presidency has ‘seen a powerful reaffirmation of the autonomous and binding nature of EU law’.
His wife Dame Mary Arden is a Lady Justice of Appeal, a member of the Permanent Court of Arbitration in The Hague and an ad hoc judge of the European Court of Human Rights in Strasbourg.
She sits on the Advisory Board of the King’s College London Centre of European Law — whose president, Sir Francis Jacobs, spent 18 years as Advocate General at the Court of Justice of the European Communities and worked as an official at the European Commission of Human Rights.
Director of King’s College Centre of European Law’s is Andrea Biondi, a pro-Remain activist who on Twitter said of the referendum vote: ‘No plans no competence, just mediocrity. The whole next UK generation that voted Remain do not deserve this political class.’
Lord Mance’s son, Henry, works as political correspondent for the Financial Times, the anti-Brexit newspaper whose editor Lionel Barber has been offered a Legion d’Honneur for the title’s ‘positive role’ in the European debate.
On Twitter, Mance Jr this week mocked Ukip and recently criticised the Telegraph for attacking judges who reached the original High Court Article 50 decision.
Mance’s daughter, Abigail, is married to management consultant David Bosomworth — whose Twitter feed alleges that Brexiteers have decided to ‘tank the pound, make prices soar, destroy the economy and stoke xenophobia’.
Kerr: Championed the Human Rights Act
4. Lord Kerr of Tonaghmore
Education: St Colman’s Newry (a top boys’ boarding school in Ulster) & Queen’s Belfast
Dubbed a ‘human rights hero’ by delegates at a conference organised by Justice, the campaigning human rights organisation, he is a former Lord Chief Justice of Northern Ireland.
In 2001, he sat as an ad hoc judge in the European Court of Human Rights — an episode curiously missing from his official CV on the Supreme Court’s website — and has since made it known that he approves of the incorporation of EU law into British justice.
In a 2014 speech, he championed the Human Rights Act, saying: ‘Citizens of the UK are as much Europeans as anybody else and are entitled to cast a jealous eye on the rights of their brethren in the rest of Europe.’
Despite such opinions, Kerr is adamant that they will not influence his Supreme Court role in the Article 50 case, telling Radio 4 that it is his job to ‘apply the law’ uninfluenced by ‘personal views’.
Clarke: Opposed efforts to subvert Commons
5. Lord Clarke of Stone-Cum-Ebony
Education: Oakham & Cambridge
A barrister for 27 years and a judge for 23 more.
He is the oldest and perhaps most experienced member of the Supreme Court, having been the first justice to be appointed directly to it in 2009.
He’s best known for conducting the safety inquiries such as the one into the Marchioness riverboat tragedy on the Thames.
He has no known ties to the EU or to European institutions, and has opposed previous attempts by the court to subvert Parliament.
6. Lord Sumption
Sumption: Said his £1.6m salary was ‘puny’
Education: Eton & Oxford
Regarded as the most brilliant advocate of his generation. Has acted as a barrister for a wide range of clients — such as the Government in the Hutton Inquiry into the Iraq war and Chelsea FC owner Roman Abramovich.
In 2001, he was named as one of the ‘million-a-year’ club of top barristers by the Guardian, but responded by claiming his ‘puny £1.6 million a year’ was dwarfed by earnings in the worlds of business, sports and entertainment.
The only Supreme Court member who hasn’t previously served as a full-time judge, he’s also thought to be the most Eurosceptic member, thanks (in part) to a 2013 speech in which he said the European Court of Human Rights exceeded legitimate powers and ‘undermines the democratic process’.
His daughter, Madeleine, is director of Oxford University’s migration observatory, an impartial research organisation whose studies have been quoted by both the Leave and Remain campaigns. He is director of the English National Opera, whose chief executive Cressida Pollock gave a pre-referendum interview saying: ‘My biggest concern — and that of all arts organisations — is Brexit.’
He also sits on the board of the Royal Academy of Music, whose leading guest conductor Yan Tortelier wrote to the Guardian in June describing the Brexit lobby as ‘upsetting,’ and ‘rather offensive, if not Trumpesque’.
Reed: Ex-head of Eu Forum of Judges
7. Lord Reed
Education: George Watson’s College (a smart Edinburgh private school) & Oxford
One of the court’s two Scots, he’s spent a big portion of his adult life working for European institutions.
In the late Nineties, he was a judge in the European Court of Human Rights, where he was on a panel that decided the killers of Liverpool toddler James Bulger had not received a fair trial.
He acted as expert adviser to the EU Initiative with Turkey on Democratisation and Human Rights, and as chairman of the Franco-British Judicial Co-operation Committee. Between 2006 and 2008, he was President of the EU Forum of Judges for the Environment and has made occasional headlines as a High Court judge.
For example, he spared an armed robber from jail, saying he should instead buy victims a bouquet of flowers to say sorry.
And he sparked controversy after deciding that a paedophile who had photographed himself raping a 13-month-old baby, should be jailed for just five years because he had ‘expressed remorse and shame’.
Before joining the Supreme Court, he was a director of Children in Scotland, a charity which responded to the referendum by writing to the Guardian, moaning: ‘We are dismayed that 16-and 17-year-olds . . . were denied the right to have their say in the most important decision of recent times.’
Wilson: Opposed release of Prince’s letter
8. Lord Wilson of Culworth
Education: Bryanston & Oxford
Owner of a string of race horses.
A veteran family court judge, he has been accused of straying into areas that elected politicians ought to decide on.
For example, he backed extending human rights law to change rules regarding assisted suicide.
However, in other cases, he has come down against the Supreme Court bossing Parliament around.
He dissented from colleagues who last year voted to overrule the Government by ordering the release under Freedom of Information rules of Prince Charles’ so-called ‘black spider’ letters to Ministers.
Carnwath: Owns a palatial villa in Italy
9. Lord Carnwath of Notting Hill
Education: Eton & Cambridge
A committed environmentalist, he has frequently used EU laws to support this agenda. Came to prominence as legal adviser to the Prince of Wales from 1988 to 1994, when Charles’s marriage to Diana was disintegrating.
After being runner-up for the job of British judge at the European Court of Human Rights in Strasbourg, he founded the EU Forum of Judges for the Environment and served as its Secretary General from 2004-05. The forum exists to ‘promote the enforcement of national, European and international environmental law’.
Recently hosted a conference on ‘Climate Change and the Law’ at which a speaker asked whether courts might be able to play a role in ‘scotching’ global warming denial.
Around the same time, he ruled in the Supreme Court in favour of pressure group which took the Government to court over its failure to produce an air quality plan in keeping with European law.
An acclaimed viola player and lover of European culture, he and his wife Bambina divide their time between a £5 million penthouse in Kensington and a palatial villa on Lake Iseo in Italy.
Sits on the Advisory Board of the King’s College London Centre of European Law, whose director is a pro-Remain activist
Hughes: Against efforts to usurp Parliament
10. Lord Hughes of Ombersley
Education: Tettenhall College (a boarding school in the Midlands) & Durham University
A traditionalist who was made a QC in 1990.
He has opposed previous efforts by the Supreme Court to usurp Parliamentary sovereignty.
He served as a Crown Court recorder before becoming a High Court judge.
Appointed to the Supreme Court in 2013.
He commutes from a village near Droitwich, Worcestershire.
11. Lord Hodge
Hodge: No professional links to Europe
Education: Trinity Glenalmond (one of Perthshire’s smartest boarding schools) & Cambridge
A pillar of the Edinburgh establishment. No obvious professional links to the EU or European institutions.
However, his son George is an ardent Remainer who works for the UN. Hodge Jr’s Twitter feed in June called the Leave campaign ‘one of the most disgraceful spectacles in modern British political history.’
Before joining the Supreme Court in 2013, Lord Hodge was a trustee of a centrist think-tank called The David Hume Institute.
Last month, the institute hosted a speech on Brexit by former Cabinet Secretary Lord (Gus) O’Donnell, who said of next week’s case: ‘I have yet to meet any constitutional lawyer who thinks the Government will win.’
Backing a terror suspect and criminal migrants – how judges have been over-ruling Ministers
HOW JUDGES ARE CHOSEN IN SECRET
The Supreme Court was created by Tony Blair and is the most powerful legal institution in British history.
Yet despite the extraordinary and unprecedented sway they hold over public affairs, not to mention the daily lives of ordinary citizens, these 11 senior justices are selected for the job — which pays £213,000-a-year — via an entirely private and at times highly opaque process.
In stark contrast to other nations, Britain elevates new members to its Supreme Court — where they sit for nine months each year — without their personal and political views ever being scrutinised by Parliament. The public is given no insight into the outlook or approach they intend to adopt in office.
This is very different to the U.S., where the selection of the nine justices who sit on their Supreme Court, the ultimate interpreter of their revered written Constitution, is accorded a level of attention that wouldn’t shame the choosing of a new Pope.
Consequently, whether the court’s justices are ruling on power station gas emissions or gay marriage, Americans are rarely surprised by how each votes. In a tortuous appointment process, the justices and their views have already been put through the wringer.
The U.S. Constitution dictates that presidents nominate and appoint justices, who serve for life unless they retire, with the ‘Advice and Consent of the Senate’.
In Britain, justices are appointed via a five-person ‘special commission’ headed by the Supreme Court’s existing president. It contains one senior judge along with one member of each of the Judicial Appointments Commissions (JACs) of England and Wales, Scotland, and Northern Ireland.
JACs in turn contain a mixture of senior judges, lawyers and ‘lay-members’.
In England and Wales, for example, the commission consists of six judges, a solicitor, a barrister and eight quango-crats, largely drawn from the civil service and academia.
Since they are essentially self-selecting, it follows that the Supreme Court is too. The ‘special commission’ meets behind closed doors to select its new candidate, and the recommendation is then referred to the Lord Chancellor, the Government’s chief legal officer, who can reject it only in extremely rare and ‘closely defined circumstances’.
Thanks to this process, the Supreme Court is 91 per cent male and 100 per cent white. The average age of members is 68. Nine went to public school and eight attended Oxbridge.
There have been many cases in recent years of British judges over-ruling decisions made by elected politicians. Here are some of the most egregious examples . . .
An Al Qaeda terror suspect — considered one of the country’s most dangerous extremists and a potential suicide-bomber — asked judges to ease restrictions imposed on his Terrorism Prevention and Investigation Measures (TPIM) order.
He said he wanted them relaxed so he could enjoy a ‘normal social life’. This was despite then Home Secretary Theresa May warning that he would contact other Islamic extremists to plot attacks against Britain.
Ruling: Sitting at the High Court, Mr Justice Wilkie said the constraints on the 24-year-old Somali were ‘chilling’ and ‘disproportionate’ and that he should be able to mingle more freely with students at his university to avoid his ’embarrassment and isolation’.
Reaction: Then Tory MP Patrick Mercer said: ‘If this fellow was concerned about his social life then maybe he shouldn’t have been spending his time in Afghanistan. His lack of social life doesn’t keep me awake at night. The prospect of him having an opportunity to blow himself up does.’
Families of four British soldiers killed in Iraq sought a landmark legal ruling giving them the right to sue the Ministry of Defence for negligence and breach of human rights. Three died when their poorly protected Snatch Land Rovers were blown up by roadside bombs. The fourth died in a ‘friendly fire’ incident when his Challenger tank was hit. The MoD, supported by defence Ministers, said the Human Rights Act did not apply because the soldiers died on the battlefield.
Ruling: In 2013, the Supreme Court backed the families’ legal fight and said the Government owed a duty of care to properly equip and train troops sent to war.
Reaction: Then Defence Secretary Philip Hammond said: ‘It can’t be right that troops on operations have to put the European Convention on Human Rights ahead of what is operationally vital to protect our national security.’
Violent thug John Gilbert, convicted of grievous bodily harm, fought to overturn then Justice Secretary Chris Grayling’s ban on sending high-risk violent prisoners to open jails. The Minister had stopped inmates with a history of absconding from being transferred to lenient Category D prisons after a string of criminals fled minimum-security jails.
However, in 2015, Gilbert, who had once failed to return from day release, claimed it breached prison rules.
Ruling: High Court judges threw out the Government’s ban — branding it ‘unfair and unlawful . . . except in exceptional circumstances’. They said a prisoner’s rehabilitation depended on a period in an open prison.
Reaction: Chris Grayling said: ‘This is why it is so important a Conservative government has the chance to reform our human rights laws and restore common sense.’
Arsonist Barbara Gordon-Jones challenged the then Justice Secretary’s ban on sending books to criminals in jail. The policy had been introduced amid concerns parcels sent into prison containing books were being used as a cover for smuggling in drugs, mobile phone SIM cards or other contraband. Books were already available in the prison library, the Minister said.
Ruling: The High Court overturned the ban in 2014, ruling it was ‘strange’ for the Government to treat books as a privilege when they could be considered essential for an inmate’s rehabilitation.
Reaction: A Ministry of Justice spokesman said: ‘This is a surprising judgment. Restrictions on parcels have been in existence across most of the prison estate for many years and for very good reason. We are clear that we will not do anything that would create a new conduit for smuggling drugs and extremist materials into our prisons.’
Two Romany women who wanted to set up caravan sites on Green Belt land went to court after then Communities Secretary Eric Pickles blocked them.
They claimed last year that the Minister racially discriminated against travelling families by personally examining appeals against councils that had refused planning permission, rather than passing the job to a Whitehall-appointed inspector. (The rule had been brought in following the ten-year saga of travellers camped at Dale Farm in Essex.)
Ruling: Mr Justice Gilbart said that Mr Pickles had broken the 2010 Equality Act and that the Minister had ‘discriminated unlawfully against a racial group’.
Pictured: The Supreme Court in Parliament Square
Reaction: Tory vice-chairman Bob Neill said: ‘This has given the impression that travellers can ignore planning rules.’
A foreign-born rapist who faced deportation claimed he should be given taxpayers’ money so he could travel across the country to see his baby son — despite squandering cash smoking two packets of cigarettes a day. The failed asylum seeker said he was unable to afford the £13.55 return fare for the 130-mile round trip from Hampshire to Kent — and banning him from having extra money breached his human rights to family life.
Ruling: High Court judge Michael Kent overruled then Home Secretary Theresa May last year, saying the violent criminal was entitled to claim travel expenses.
Reaction: Tory MP Philip Hollobone said: ‘Many people will be absolutely appalled by what is yet another abuse of the justice system.’
A Libyan convicted of 78 offences challenged his deportation from Britain on the grounds that he was an alcoholic.
The man, identified only by the initials ‘HU’, argued that he would be tortured and imprisoned in his homeland where drinking alcohol is illegal. Sending him back to Libya would breach his human rights, he claimed. His case was estimated to have cost British taxpayers a six-figure sum.
Ruling: Upper Immigration Tribunal judges last year overturned Home Secretary Theresa May’s decision, claiming it would violate the European Convention on Human Rights because of the risk of ‘unacceptably savage’ abuse the career criminal faced in Libya.
Reaction: Tory MP Peter Bone said: ‘This kind of things drives people mad. On the doorstep they find cases like this outrageous. Few people will think this man should remain in the country. He has completely abused our hospitality.’
Compiled by IAN DRURY
Published at Tue, 06 Dec 2016 14:47:35 +0000