British Judges Can’t Escape Brexit Turmoil, Even in Malaysia

  • Justice Hale asked whether new laws needed before Article 50
  • The Supreme Court will hear Brexit challenge on Dec. 5

Brenda Hale.

Photographer: John Stillwell/PA via AP Photo

U.K. Supreme Court Justice Brenda Hale gave a speech to law students in Kuala Lumpur last week about courts and constitutions. Mostly dry legal analysis, she devoted a few lines to Brexit.

“I shall have to be particularly careful about what I say” before the court reviews the issue next month, she said. 

Not careful enough, it turned out.

On Tuesday, six days later, the Supreme Court published her speech on its website. The British press honed in on a few lines in which she repeated questions others had asked before, including whether the vote was binding and if it mandated comprehensive legislation.

Pro-Brexit lawmaker Douglas Carswell immediately criticized her for having made up her mind before the trial. At about 7.30 p.m., after Sky News reported that new legislation could delay the process by two years, the pound jumped 0.6 percent.

The 11 U.K. Supreme Court judges, all of whom will hear the case over whether Prime Minister Theresa May can trigger Brexit without a vote of Parliament, aren’t used to this kind of scrutiny. Unlike in the U.S., they are not well known outside of the legal circles and see themselves as operating outside of the political arena. They are appointed by an independent commission and try not to express personal views in public.

‘Intensely Politicized’

“This case is intensely politicized and it is likely that, in the post-truth age, the newspapers will report such issues in a partisan way,” said Robert Thomas, a law professor at the University of Manchester. “Accordingly, judges need to choose their words with care. It’s generally preferable for a judge not to comment in advance of a case.”

In June, British voters decided to leave the EU. Since then political infighting and lawsuits have clouded the issue. The question of when the government should invoke Article 50 of the Lisbon Treaty, starting the two-year countdown, is especially fraught. The U.K. Supreme Court will hear a challenge starting Dec. 5 on whether a vote in Parliament is required before the Article 50 notice, something May wants to avoid.

Amid the confusion, currency traders are seizing any morsel of news about Brexit.

“Traders will look at a headline or a little further into the story and they’ll make a snap judgment on what that means,” said Lee Oliver, a former currencies trader at Citigroup Inc. who now runs foreign exchange consulting firm Cotio Consulting. “Quite often that judgment may prove incorrect, but if the market moves in the direction the trader thought they’ll be happy anyway because he’ll have made money.”

Recently, comments by a Czech negotiator and news that Germany was shutting down private diplomatic channels to the U.K. have affected the strength of the pound as politics takes over from economics as the main sterling driver.

Now it’s the turn of lawyers and judges.

‘Enemies’

During an October trial in the Article 50 case in London, the pound strengthened as much as 0.5 percent after comments by the U.K. attorney general about the need for a vote on a final Brexit deal. After the judges ruled against the government, the pound climbed to a three-week high, even though the case would ultimately have to be decided by Hale and her colleagues. The Daily Mail newspaper called the three-judge panel “enemies of the people.

The Supreme Court said Hale was simply presenting arguments on both sides of the Article 50 appeal and didn’t give any views on the outcome of the case. Academics also rallied to her defense.

“The reaction is vastly overblown and Lady Hale meant in no way to endorse that question as serious matter of dispute, but rather meant only to indicate that it is one of the questions being circulated in discussion,” said Jeff King, a law professor at University College London. “It is not an issue that is material to the core legal dispute in the Supreme Court.”

The comments failed to convince Carswell, the U.K. Independence Party’s only elected member.

“If their lordships have decided their verdict already they might let us know in the Supreme Court in Britain, not in Malaysia,” Carswell told the Telegraph newspaper.

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