On the day that the prime minister formally set in motion the process of leaving the EU, the president of the Supreme Court has spoken out about the media attacks on the judiciary following last year's Brexit litigation.
Giving evidence before the House of Lords constitution committee this morning, Lord Neuberger contrasted the reaction to the divisional court’s decision, ’which was quite inappropriate in some newspapers’, and the Supreme Court’s decision - even though the two decisions were the same.
Neuberger said that the initial press reaction - which include the Mail's 'enemies of the people' headline prompted 'a degree of dismay' in the Supreme Court. 'The judiciary of England and Wales felt attacked personally,’ he added.
Neuberger said the lord chancellor has a particular duty to speak up in such circumstances, especially when the lord chief justice and Supreme Court president are unable to speak because they are involved in the case.
He said: ’If newspapers had rights under freedom of expression to be critical, then surely freedom of expression entitles the lord chancellor to correct what they say and criticise them for what they say. Section one of the Constitutional Reform Act means she has a duty to do it,' he said.
However 'that doesn’t mean we should sit back and leave it all to the lord chancellor. That would be quite wrong. We have a duty, unlike judges of 50-60 years ago, to speak. But we have to be careful about what we speak about. We can’t speak about our decisions - it will just muddle what we say in our judgments if we start to explain what we say in [them].
’We can’t speak about the issues we’re going to have to decide. Then people would justifiably object to us trying the cases. We can’t go into political issues - that’s not our function. We expect government ministers to speak, to keep off our turf, we have to keep off theirs.’
Meanwhile Lady Hale, deputy president of the Supreme Court, told the committee that ‘crucial’ questions must be resolved following the triggering of article 50 of the Treaty of the European Union.
Hale said: ’It should be made plain in statute what authority, or lack of authority, or weight or lack of weight, is to be given to decisions of the Court of Justice of the EU after we have left, both in relation to matters that arose before we left and more importantly to matters after we leave. That is because that’s not something we would like to have to make up for ourselves. It is very much a political questions and we would like statute to tell us the answer.’
The committee heard that there was a lot of EU law that cannot be simply taken into UK law by the proposed Great Repeal Bill because it involves multilateral treaties.
Hale said: ’If those are to continue to be part of UK law, there will have to be multilateral agreements with other member states, that they agree to our remaining part of that club should we wish to do that. If that happens, there will be jurisdictional questions as to how that is to be interpreted.
’For the remaining member states in the EU, that will be done by the Court of Justice of the EU. But what about us? Would there be a new court or would it be the Supreme Court?’
As the government changes law over the next two decades, Neuberger highlighted the possibility of increased litigation should this be done by secondary legislation.
He added: ’Whether the Supreme Court with 12 justices can cope with that remains to be seen. If it isn’t, it may be appropriate to draw on judges who are not members of the court but entitled to sit there to cope with what may be a temporary bulge of work. But I would have thought that’s as high as it would get, if it gets there at all.’