The government’s latest Brexit legislation puts Britain on a “very slippery slope” towards a dictatorship, the former president of the UK Supreme Court has warned.
In a major intervention Lord Neuberger, who presided over the country’s highest court from 2012 to 2017, said the government’s proposals sought to do away with “one of the most important aspects of any democratic society”.
Speaking at a virtual meeting of eminent lawyers on Wednesday evening the judge told MPs and peers that the offending clauses of the bill “need to be defeated”, preferably in parliament.
“It seems to me that this bill is quite extraordinary and is very worrying,” he said. Clauses included in the Internal Market Bill allow the government to “freely breach its obligations under international treaties” and also “make regulations which it would appear the courts are not entitled to review”, he said.
“This country has a remarkable unbroken history of 350 years of observing the rule of law, and has an enviable reputation for that: it gives us authority abroad when we criticize other countries for breaking international law,” the top judge, now a crossbench peer, warned.
“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 the government has breached the rights of individuals. Once you deprive individuals, people, of the right to go to court, to challenge the government, you are in a dictatorship, you are in a tyranny.
“Quite how often and to what extent judges should interfere with ministers’ acts if a matter of opinion and judgement … but the rights of citizens to go to courts and protect their rights and ensure that the government complies with its legal obligations is fundamental to any system. The fact that this particular right is proposed to be taken away by legislation is a very fundamental problem. It is the beginning, it can be feared, of going down a very slippery slope.”
Lord Neuberger linked the new powers to the coronavirus pandemic and suggested that if the government was seen to be ignoring the law, ordinary people might also decide to reject it,
“The government understandably expects people to obey the law: but I ask rhetorically, what moral authority does the government have expecting people to obey these draconian laws, if it itself is announcing that it intends to break its obligations under international law and intends to stop people going to court to enforce their rights against the government?” he said.
“In our democratic system government has to operate by consent and by respect and if a government undermines its right to respect and undermines its authority in this way then we are all getting into serious difficulties.”
Lord Neuberger is the second former Supreme Court judge to speak out about the government’s record on rule of law this week. On Tuesday Lord Sumption, who retired from the court in 2018, told a parliamentary committee that he believed ministers were intent on “doing down the courts as potential sources of impediments for the government’s program”.
The former top judge was joined in criticism by other senior constitutional experts, who sounded the alarm about the “worrying trend” of disrespect for the rule of law emanating from Downing Street.
The Conservative government has been widely criticized for its actions and rhetoric around rule of law, with Supreme Court judges branded “enemies of the people” by the government’s media outriders at the Daily Mail in 2016.
Since then, the government has unilaterally suspended parliament to try and force through its program, and actively chosen to defy international law over the Brexit deal Boris Johnson signed at the start of 2020.
Just this week the Home Secretary Priti Patel used her Tory conference speech to mount another attack on the legal profession – accusing “lefty lawyers” of trying “to play and profit from the broken system”.