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Top U.K. Judge Says Courts Can Make Laws Ahead of Brexit Trial

  • Justice Neuberger comments in speech to lawyers in London
  • Supreme Court to hear Dec. 5 challenge to triggering of Brexit

The president of the U.K. Supreme Court said its judges have the power to make laws and must protect human rights, in a speech delivered weeks ahead of a Brexit legal challenge that may put the judiciary in conflict with the government of Prime Minister Theresa May.

The sovereignty of the U.K. Parliament “does not preclude the necessity for a degree of judicial law-making,” David Neuberger said in a speech about the court’s role delivered at the Inner Temple Hall in London. He also said that the Supreme Court has “no more important role” than to protect fundamental human rights.

Human rights established under European law are key to the legal challenge to be heard by the U.K.’s top court on Dec. 5, in which a hairdresser, a finance entrepreneur and other citizens argue that human rights will be affected when May triggers Britain’s exit from Europe. They are seeking a vote in Parliament before that can happen, something May’s government wants to avoid.

In the only direct reference to the case, Neuberger said: “In the forthcoming Brexit appeal, I anticipate that all 11 of us will sit – which would be the largest panel since the Law Lords were created in 1876.”

Another Supreme Court judge, Brenda Hale, was criticized last week for referring to the legal challenge in a speech in Malaysia.

The president of the EU’s top court said there are “many, many ways” that questions about the U.K.’s planned exit could end up before his court, according to an interview in Monday’s Financial Times.

“I can’t even start intellectually beginning, imagining how and where and from which angle it might come,” said Koen Lenaerts, president of the EU Court of Justice in Luxembourg.

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