Time to say Hale and farewell to judges who hand down opinions on Europe

In considering the Article 50 case, the Supreme Court needs to employ greater self-discipline

Since 2009, Britain has had something previously unknown to our constitution – a Supreme Court. Until then, our highest judges were formally entitled the Appellate Committee of the House of Lords, known as “the Law Lords”. They sat – without wigs, without gowns and without fuss – in Committee Room One of the House of Lords.

This reflected the fact that the British constitution has never had the formal “separation of powers” present in many written constitutions such as that of the United States. Our idea of parliamentary sovereignty forbade it. The Law Lords were, in practice, independent of government but connected to it through the office of Lord Chancellor and to Parliament by being members of the House of Lords.

By setting up a Supreme Court (and neutering the Lord Chancellor), the Blair-Brown government was making a grand statement about its Europeanstyle modernity.

If you call a court supreme and give it a separate building and special new gowns, you give it new pretensions. Last week, in Malaysia, one Supreme Court judge, Lady Hale, delivered a lecture. In it, she declared that she and her fellow judges “have definitely become the guardians of the UK Constitution”.

Next month, those judges will hear a very big case. As a sign of their might, all 11 of them will, for the first time, sit together. The case is the Government’s appeal against the High Court ruling that it cannot trigger Article 50 – the process which starts our negotiations to leave the European Union – by using its prerogative power, but must pass an Act of Parliament first.

Despite its imminent appearance in her court, Lady Hale told the assembled Malaysians a good deal about the case, including something we in Britain had not been told and which had not come up in the High Court. She said that a simple Bill might not be enough to trigger Article 50: “a comprehensive replacement” to the European Communities Act 1972 might be needed.

By doing this, Lady Hale broke a basic rule of litigation. Judges should respond to arguments made in their court, not introduce them before anyone gets there. What is the Government’s counsel, naturally basing his case on the High Court arguments, supposed to do now?

And what are we, British voters, supposed to think? Why should judges, whose utterances rightly have such privilege in court, feel free to comment on an upcoming case, especially when it might be taken to imply a prejudice in favour of one side (that an Act is needed)? What are we to make of Lady Hale’s “comprehensive replacement”, which could indefinitely delay the process we have just voted for and thus – politically – finish it off? Why is the doctrine of parliamentary sovereignty invoked to delay Brexit, but not to implement the clear intention of Parliament’s own European Referendum Act 2015?

The Supreme Court’s own Guide to Judicial Conduct states that judges should “show appropriate caution and restraint when explaining or commenting publicly upon their decisions in individual cases”. It is surely incredibly incautious and unrestrained to comment on your decision before you have heard the argument in court: it suggests that you might have made up your mind already. The Supreme Court had to put out a press release defending Lady Hale, but admitting that her “comprehensive replacement” was not discussed by the High Court. That shows the problem. I don’t know whether Lady Hale is biased, but I – and millions – fear she is unwise. We don’t want unwise judges deciding our future as an independent nation.

Appearances really matter. In the famous case at the end of the Nineties about whether General Pinochet, the former Chilean dictator, was immune from prosecution, Lord Hoffmann, one of the judges, eventually had to “recuse” himself, partly because his wife worked for Amnesty International, which was chasing Pinochet. Even a judge’s wife must be above suspicion. The case had to be reheard.

Studying the Article 50 case, I come across the Twitter account of Angela Holdsworth. She is the wife of Lord Neuberger of Abbotsbury, the President of the Supreme Court. Her tweets have the pleasant tone of a highly educated, mildly Left-wing grandmother with a strong interest in women’s rights and public affairs. Nothing in her views is obnoxious. But more than 50 of her tweets, from the June referendum onwards, contain attacks on Theresa May and her ministers or on Brexit, or both.

Here are a few. “Referendum underlines an enduring #bbc problem. Need to balance can give weight and credibility to the unreliable” (June 18). The referendum is “dangerous” because it “reduces complex issues to yes or no” (June 26). On July 2, she attacks “the 0.008 per cent who messed it [the vote] all up” (I’m not sure how that percentage was calculated). She retweets attacks on Boris Johnson and Gisela Stuart and a comparison of Donald Trump with Brexit (unfavourable to both).

After a holiday in Burma (nice pictures of temples), Lady Neuberger criticises the BBC World at One for giving too much space to Ukip (October 7), retweets “So many lies, so much ignorance. It’s the poorest will suffer most from Brexit” (October 16), and laments “our new nasty reputation and obstinacy of PM” (November 1).

As early as June 29, Lady N was on to the legal point which her husband will shortly decide. “It seems unlikely that a PM could trigger Article 50 without Parliament’s approval”, she retweeted.

The Supreme Court’s Guide to Judicial Conduct (see above) says judges should “bear in mind that political activity of a close member of a Justice’s family might raise concern in a particular case about the judge’s own impartiality and detachment from the political process.” It might indeed.

After the High Court judgment this month, there was outrage at the rude things said about the judges. I shared some of that outrage. They are learned and conscientious people, part of whose job is to uphold the legality of process against the natural tendency of politicians to cut corners.

But I also share the public frustration. I know, because I quite often meet senior judges, that they suffer more from group-think than of old. “The independence of the judiciary” did not only mean independence from government. It also meant independence from one another. Under the English system, judges always arrived at their own, individual legal opinions. The collective “view of the judiciary” was frowned on.

Nowadays, however, the judges act more like a trade union in wigs, aggrandising their power. Their present generation overwhelmingly supports Britain’s EU membership and wants the interesting work it brings. After the referendum, we naturally wish to scrutinise their connections and discover their views.

For what it is worth, I would say that at least Lords Neuberger, Mance and Kerr and Lady Hale are on the side which seems to me too disrespectful of parliamentary sovereignty and Lords Wilson, Hughes and Sumption have a more traditional, respectful approach. (About the four others, I know too little.)

Private opinions on Europe should not, in themselves, disqualify anyone, but the situation does demand from the judges the most special care, humility and punctilious propriety in approaching their great decision.

One reason that elites are so unpopular at present is the sense that there is one law for them and another for everyone else. How strange that the elite in charge of the law itself seems not to understand this.