The Supreme Court Judges Who Thwarted May’s Brexit Plan

The 11 members of the top U.K. court faced unprecedented public and political pressure over Brexit.

U.K. Court: Parliament Must Vote on Brexit Trigger

The manner of Britain’s exit from the European Union was decided by a golf enthusiast, a bellringer and an ex-banker, among others, who sit as judges on the U.K. Supreme Court.

Hearings ran for four days from Dec. 5  in what was by far the biggest case in the seven-year history of the court, and the first where all 11 judges sat together to hear arguments. On Jan. 24 they ruled that the Prime Minister Theresa May’s government must obtain authority from Parliament to trigger Article 50 of the Lisbon Treaty, which begins the formal process of Brexit. She had proposed starting the process without a vote.

The case brought with it a level of scrutiny that’s rarely experienced by British judges, even those at the top of the profession.

Unlike in the U.S., judges on the U.K. Supreme Court aren’t household names. In fact, outside of legal circles, it’s hard to find someone who can name one.

Here’s a brief guide to the 11 justices who decided how the U.K. will begin Brexit.

The Ex-Banker

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Lord David Neuberger, 68, president of the Supreme Court, studied chemistry and worked at merchant bank N. M. Rothschild & Sons in the 1970s before taking up law. A proud defender of judicial independence, he’s sparred with Theresa May before, when as Home Secretary she criticized judges for blocking extraditions. “I think attacking judges is not a sensible way to proceed,” he said in a 2013 interview. 

In a speech earlier this year, he said it is vital for judges to protect citizens “against excesses of the executive,” but his views on Brexit remain inscrutable. “As a serving judge, it is not for me to comment either on whether these developments are good or bad,” he said about the referendum. 

During the Brexit trial: After British lawmakers voted to approve a motion about the Brexit notice, Neuberger asked Miller’s lawyer, essentially, what’s the point of her case? “The average person in the street will think it seems odd if one says you have to go back to Parliament and have an act of Parliament passed to show what its will is, when you’ve already been to Parliament.’’

Decision: Parliament must vote

What else? Neuberger was baffled to learn that Jay Z had named an album after a medieval charter of rights: the Magna Carta. “I suppose that when it comes to subtle allusions, rap singers may have it over judges.”

The Feminist

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Source: Supreme Court

In 2009 Lady Brenda Hale, 71, became the first woman Justice of the Supreme Court. She spent 18 years teaching law at the University of Manchester and working part-time as a barrister, or specialist trial attorney. She’s spoken passionately about the need for more female judges, and in support of equal rights generally. “If judicial diversity is such a good thing, why do we have so little of it?” she said in 2014.“ We are out of step with the rest of the world.” 

On the subject of Europe, she attracted criticism in November for raising a question about whether Article 50 would require new laws, even though she made clear she wasn’t expressing a view about the case. 

During the Brexit trial: Many of Hale’s interventions were to complain about the “confusing” filing system for the case documents. But she also spoke out about the importance of European laws in the U.K. “There are vast swathes of domestic law which have been enacted in domestic law as a result of EU obligations.”

Decision: Parliament must vote

What else? She once described the white horsehair wigs worn in British courts as “silly gear,” in an interview with the Telegraph newspaper. That’s no longer a problem for Hale as Supreme Court judges don’t wear wigs.

The Francophile

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Source: Supreme Court

Lord Brian Kerr, 68, served as Lord Chief Justice of Northern Ireland from 2004 to 2009. He also sat as a judge of the European Court of Human Rights in a dispute over aircraft noise from London’s Heathrow. On the day of the controversy over Lady Hale’s speech, Kerr told the BBC he is “not particularly looking forward to the public interest” in the Article 50 challenge but he’s “certainly not disheartened by it.” In a May 2007 paper he grappled with the “illogical” nature of the U.K. constitution, adding that in modern times “it has shown itself to be as strong and flexible as ever.”

During the Brexit trial: Kerr said that, if the Supreme Court sides with Miller against the government, “we are not issuing an edict to Parliament or to the executive that you must do this or you must do that; we are simply saying what the law is.”

Decision: Parliament must vote

What else? Having sat on the Franco-British cooperation committee, his hobbies include traveling to France and playing his two sons at tennis.

The Internationalist

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Source: Supreme Court

Lord Jonathan Mance, 73, studied in Luxembourg and worked for a Hamburg law firm early in his legal career. He’s retained an international profile as a judge, working on a panel that checks the suitability of candidates to the European Court of Justice and currently chairs the executive council of the International Law Association.

“The European Union and its predecessor treaties have seen Europe experience fifty years of, basically, peace, weaving an unprecedented net of governmental and institutional collaboration between its component states,” he said in a 2013 lecture. “The European legislative process may be imperfectly democratic, but it is the best we currently have.”

During the Brexit trial: One of the most outspoken judges, especially during the government’s arguments, which he characterized as Parliament doing “whatever the government decides without actually expressing a view itself.” Mance then asked: “Is that realistic?” He also noted that “the word ‘referendum’ is a foreign expression derived from Switzerland. Thirty years ago it was almost unknown to Englishmen.”

Decision: Parliament must vote

What else? Mance is unlikely to be phased by the presence of protesters outside the Supreme Court. In 1997, a woman pulled a gun and threatened to shoot three judges including Mance, who calmly left the court and raised the alarm.

The Mariner

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Born on the west coast of Scotland, Lord Anthony Clarke spent 27 years as a barrister specializing in maritime law. As a judge, he oversaw two inquiries into a boat accident on the River Thames that killed 51 people. 

At 73, he’s due to retire next year and doesn’t give as many speeches as some of his colleagues. When he does, he’s more likely to cite the opinions of other judges than give his own. Speaking in 2010, he said it was the Supreme Court’s job to interpret laws, not make them. On the subject of European courts, he said in 2007: “We all have much to learn from each other and much to contribute.”

During the Brexit trial: He weighed on an argument over the pronunciation of a now-famous piece of case law relating to the British government’s seizure of the De Keyser hotel a century ago. “Down here we think it is De Kay-zer,” he said.

Decision: Parliament must vote

What else? A Who’s Who guide published in 1985 lists golf and tennis among his hobbies. He still plays both when he gets time.

The Historian

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Lord Jonathan Sumption, 67, stands out, not least because his hair, an altitudinous swoop of grey in the style of a mad scientist. Forty years ago he quit a history fellowship at the University of Oxford to study law because he “wanted to be able to pay my grocery bills,” but still writes history books in his spare time. Unusually, he was a practicing barrister when he was appointed to the Supreme Court, with almost no experience as a sitting judge.

He’s been outspoken about European laws, and about judges interfering in politics, key issues in the Brexit case. In a 2011 lecture, he said he was “uncomfortable” about the idea of courts “correcting” electoral decisions. Politicians answer to the public in a way judges don’t, he said. Law “is a poor instrument for achieving accommodation between the opposing interests and sentiments of the population.” He also said it was “problematic” for judges to rule using European human rights laws that didn’t reflect the proper role of the U.K. parliament and government ministers. 

During the Brexit trial: Wore a succession of gaudy ties, which generated their own enthusiastic media coverage. He gave the government’s lawyer James Eadie a rough time. “You seem to have given two diametrically opposed answers in the last five minutes to the same question,” Sumption told Eadie. “We will obviously have to work out which answer we accept.”

Decision: Parliament must vote

What else? His second home is a French chateau.

The Golfer

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Before his appointment to the Supreme Court in 2013, Lord Patrick Hodge, 63, was the Scottish judge responsible for matters relating to government finances. He was a government lawyer early in his career, working for energy and tax collection ministries. 

Hodge is sensitive about public criticism. In a November speech, he warned that media coverage of the Brexit ruling was proof that judges and politicians were not doing enough to stop the media portraying a “caricature of the judiciary.” 

“All judges have a duty to take care to preserve political and public support for the rule of law; senior judges in particular have a duty to explain,” he said. 

During the Brexit trial: The Article 50 case “is about what is the correct legal mechanism by which it is done, and nothing else,” Hodge said.

Decision: Parliament must vote

What else? He is a member of Edinburgh’s Bruntsfield Links Golfing Society,  the world’s fourth oldest golfing body, which celebrated its 250th anniversary in 2011.

The Family Man

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Source: Supreme Court

Lord Nicholas Wilson, 71, spent 12 years in the family division of the High Court deliberating on the legal consequences of divorce, yet it was only the debate about the introduction of same sex marriage that caused him to "reflect on the institution of marriage in any depth," he said in a 2014 speech in Belfast. Wilson studied at Oxford before being called to the bar in 1967. He became justice of the Supreme Court in 2011.

He once criticized elements of the British press for being “impervious to evidence inconsistent with their pre-conceived agenda,” when covering family justice. 

During the Brexit trial: “Our entry into the EU was a joint effort,” Wilson told the government’s lawyer. “If our accession was the result of joint effort, should our departure not equally be so?”

Decision: Parliament must vote

What else? He was the first Supreme Court judge to have his swearing-in ceremony broadcast live, on a dedicated online channel.

The Uncontroversial One

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Lord Robert Reed, 60, served as a senior judge in Scotland for 13 years, and sat at the European Court of Human Rights during appeals by Robert Thompson and Jon Venables, who murdered the toddler James Bulger when they were 10.

In a 2014 speech on EU law, he quipped that, while he didn’t expect to have his head impaled on London Bridge, he "nevertheless subscribes to the view that it is wise for judges to avoid speaking in public on controversial topics." Judges wanting to avoid controversy “would be well advised at present to give a wide berth to our relationship with the EU," he said. True to his word, he hasn’t had anything to say publicly about the subject since. 

During the Brexit trial: “When you are talking about a constitution in which there are a number of important institutions,” he said on the second day of the case, “the court has to be conscious of what competence it properly has to exercise in this field.” Judges are only “part of the picture.”

Decision: No Parliament vote

What else? In 2010, he overturned a five-year jail sentence given to a Scottish grandmother who kept her father’s World War II pistol as a souvenir, not knowing it was against the law.

The Singer

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Lord Robert Carnwath, 71, was educated at Eton, the most prestigious private school in England, and studied law at Cambridge. Between 1988 and 1994, he was legal adviser to the Prince of Wales. It’s hard to find any record of him talking about European or constitutional matters. “Dispassionate and objective appraisal are our watchwords,” he said of British judges. 

When the U.K. Supreme Court was created in 2009 (it was previously part of the House of Lords), Carnwath was skeptical it would be an improvement. “I found it difficult to see the point of what seemed to be a very expensive way of doing not very much.” He has since changed his mind, saying the court has brought a new sense of collective responsibility.

During the Brexit trial: He asked “whether really the question we are dealing with is not so much a question of parliamentary sovereignty, which everyone accepts, but whether we as a court can tell Parliament how to exercise that sovereignty?”

Decision: No Parliament vote

What else? A keen musician, he sings in London’s Bach Choir, which has provided the soundtracks to several movies. If you listen carefully enough, you might be able to hear the judge’s vocals on Ridley Scott’s 2005 film Kingdom of Heaven.

The Bellringer

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Lord Anthony Hughes, 68, became a barrister in 1970. He’s spent time as a judge in family and criminal courts where, according to Lord Neuberger, “he always looked fresh and relaxed,” in contrast to his stressed and exhausted peers. Hughes studied at Oxford and counts bellringing as a hobby, making him “the first campanologist to reach the Supreme Court,” according to Neuberger. He has not had any public speeches published since the Supreme Court was established in 2009.

During the Brexit trial: He asked about the enormous legal consequences of Brexit. All the rights and laws in safety standards, competition, compensation: What happens to them at the end of the notice period? “Do they simply lapse?” Eadie responded: “They do.”

Decision: No Parliament vote

What else? In 2008 Hughes ruled that filming a man’s naked chest did not amount to voyeurism. Only the chests of females are “private,” he said.

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