19 October 2020. The Guardian, UK: The last thing the country needs is a government in which ministers exercise “unbridled power”, the UK’s longest serving supreme court justice has said.
In a forthright defence of the courts system, Lord Kerr of Tonaghmore, who stood down at the end of last month, said judicial checks on the government were part of a healthy democracy.
Kerr said he understood why governments became “irritated” by legal challenges but warned that attacking lawyers was “not profitable”.
His comments follow criticism from the prime minister, Boris Johnson, and the home secretary, Priti Patel, of “activist” and “lefty human rights” lawyers whom they blame for obstructing immigration controls and “hamstringing” the criminal justice system.
The government has also created a panel of experts to examine how judicial review challenges are dealt with by the courts, saying it wants to balance the right of citizens to question government policy in court against the executive’s ability to govern effectively.
Kerr, a former lord 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 dismissed Patel’s description of the profession. “Lawyers are not activists,” he said. “They are re-activists. People bring problems to lawyers and lawyers decide whether they can be fitted into some sort of legal framework in which a legitimate challenge can be taken.
“I can understand the government is less than pleased when challenges are made to decisions they have taken frequently after very considerable deliberations … But it doesn’t seem to me that attacking lawyers who provide the services that allow those challenges to be made … is particularly profitable.”
Ministers might be “irritated by legal challenges which may appear to them to be frivolous or misconceived”, Kerr said.
But, he added, “if we are operating a healthy democracy what the judiciary provides is a vouching or checking mechanism for the validity [of] laws that parliament has enacted or the appropriate international treaties to which we have subscribed … The last thing we want is for government to have access to unbridled power.”
However, for ministers, he acknowledged, “on a day-to-day basis that’s a difficult message. They want to get on with the business of government and they don’t want the interference.
“Parliament is certainly sovereign … When the government acts in excess of the powers [parliament] has decided, it’s entirely healthy and entirely appropriate that there be some institution to point this out.”
The Human Rights Act, he explained, was often an example of that process. “It’s parliament,” he said, “which has said to the judges, ‘Please look at this legislation and tell us whether it’s compatible with the European convention [on human rights].’”
Kerr said he “fully agreed” with comments made by the former president of the supreme court Lord Neuberger, who last week said that the internal market bill, which enables the government to breach international law and exempts some of its powers from legal challenge, was in danger of driving the UK down a “very slippery slope” towards dictatorship or tyranny.