UK needs judges to limit government power, says Lord Kerr

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.

The internal market bill aims to enforce compatible rules and regulations regarding trade in England, Scotland, Wales and Northern Ireland.

Some rules, for example around food safety or air quality,  which were formerly set by EU agreements, will now be controlled by the devolved administrations or Westminster. The internal market bill insists that devolved administrations  have to accept goods and services from all the nations of the UK – even if their standards differ locally.

This, says the government, is in part to ensure international traders have access to the UK as a whole, confident that standards and rules are consistent.

The Scottish government has criticised it as a Westminster "power grab", and the Welsh government has expressed fears it will lead to a race to the bottom. If one of the countries that makes up the UK lowers their standards, over the importation of chlorinated chicken, for example, the other three nations will have to accept chlorinated chicken too.

It has become even more controversial because one of its main aims is to empower ministers to pass regulations even if they are contrary to the withdrawal agreement reached with the EU under the Northern Ireland protocol.

The text does not disguise its intention, stating that powers contained in the bill “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent".

The bill passed its first hurdle in parliament by 77 votes, despite a rebellion by some Tory MPs.

Martin Belam and Owen Bowcott

The influential Judicial Power project, part of the thinktank Policy Exchange, has recently questioned whether the supreme court should be abolished on the grounds that it indulges in “judicial activism” – intervening in matters that supposedly should be left to politicians.

But Kerr, who was a law lord before the UK’s highest court was transferred to the supreme court, said he “wholly rejected the notion that we have become more ready to interfere in the decisions of government than our predecessors in the House of Lords”.

The estimated £56m cost of creating the supreme court in Parliament Square was worth it, Kerr said. “Coming as I do from Northern Ireland, I believe that a spot of symbolism does not go amiss. I think it was very important to make clear in the minds of the public that the court stands fully independent from parliament and government.”

Kerr sat on both the 2016 article 50 Brexit case and the 2019 prorogation case, in which he was an active and close questioner of the government’s submissions.

His previous experience as senior crown counsel for the government in Northern Ireland courts, he suggested, may have helped. “When I appeared, as I did, before judges in [Belfast] who had occupied my position previously, they were the most testing and quite properly so.

“The government’s position ought to be strongly tested … It was an intensely interesting case. I failed to resist the temptation to ask questions.”

The government lost both cases when the justices upheld parliament’s sovereignty and its powers to scrutinise legislation.

Both landmark judgments, Kerr emphasised, “had nothing to do with the court conducting some sort of political analysis. All of the justices … were very conscious that we need to be aware of the perimeter between judicial decisions and avoiding intrusion into political areas.”