By Max Kendix
It isn’t often that a court of law takes centre stage in political life in Britain. We like to save the endless public speculation, media analysis and hours of legal opinion on television for our friends across the pond. But in September last year, it was our very own Supreme Court that dominated public debate. Boris Johnson’s government had suspended Parliament to push through Brexit legislation, and tens of millions tuned in with bated breath to see Lady Hale, the first female President of the Court, read out the judgement.
“This court has already concluded that the prime minister’s advice to Her Majesty [to suspend parliament] was unlawful, void and of no effect … when the royal commissioners walked into the House of Lords [to prorogue parliament] it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued”.
A different voice
Lady Hale’s journey to making this momentous decision is one of defying the odds. “At my very first meeting of High Court Judges in January 1994, attended by six women and over 100 men, the men solemnly voted on what the women should be allowed to call themselves”.
Born in Yorkshire to two teachers, Hale was the first student at her school to be offered a place at Cambridge. Qualifying as a barrister in Manchester, she later became the first woman to be appointed to the Law Commission in 1984.
As well as the decision on suspending Parliament, “[My] greatest professional achievements would be some of the legislation resulting from the work of my team at the Law Commission”. There, she was instrumental in drafting the Children Act of 1989, which for the first time put children’s welfare at the core of decisions made about them.
Since retiring from the Supreme Court last year, she has joined the House of Lords, and is now officially The Baroness Hale of Richmond. But even as a leading judge, Lady Hale was not shy about criticising the judiciary’s flaws. For her, there are “some judicial decisions which might have been different had there been a greater understanding of women’s lives on the bench”. She brings up a case from 2010 (Radmacher v Granatino) where she stood out from the otherwise male Supreme Court bench in arguing that pre-nuptial agreements harm women.
Butwhat seems so necessary – a truly diverse judiciary – may also be a long time coming. Hale has opposed using positive discrimination to speed up those ends, but says that even so, “by our calculations, at the current rate of progress, it will only take just over 14 years to achieve gender parity in the judiciary. Better representation of BAME and different professional backgrounds will take longer, but is under way”.
For Hale, “it is important to look for judicial merit wherever it can be found – and to break down the assumptions that only the top barristers get the top judicial jobs”.
“Not pride, but satisfaction”
This is how Lady Hale previously described her feelings about the ruling to strike down Parliament’s suspension. The whole affair was streamed on their website, broadcast across the world, and was viewed as a vital illustration of the independence and authority of the British judiciary.
The political division was also loud and clear – after a High Court ruling in a previous Brexit-related case, The Daily Mail infamously ran a front-page story attacking the judges. For Hale, it was chilling: “The ‘Enemies of the People’ headline and profiles after the High Court’s decision in Miller (No 1) were dangerous: the criticisms of the very senior judges involved were inaccurate and unfair; it risked undermining confidence in the impartiality of judicial decision-making; and it inflamed an already poisonous political debate”.
This new case faced similar political divides: though the decision was legally about a suspension of Parliament, the government’s rhetoric of a legislature against the will of the people spurred up much of the same anger.
But as attention turned to the case itself, and televisions showcased the proceedings, tensions had calmed, and reports were more measured. For Lady Hale, transparency was key: “televising our proceedings must have helped: people could see that we were debating a serious legal issue – not a political one – in a calm and measured (even boring) fashion”.
Amidst the scrutiny and division, Lady Hale was pleased with the Supreme Court: “I try not to engage in too much pride, at least in my own achievements, but there are lot of reasons to feel satisfaction in that case: we got it heard within the shortest possible time, we got the judgment written in the shortest possible time, we reached a clear and clearly reasoned decision with which all eleven Justices agreed, and the court staff managed the intense media and public interest impeccably”.
That is not to say we should lose our guard when it comes to a judiciary under attack: “there are places where the independence of the judiciary has never been recognised and other places where it is increasingly under threat. I don’t think that is so in the UK, but the price of freedom is eternal vigilance”.
Politics in the court
Many compare Lady Hale to the late Ruth Bader Ginsburg (‘RBG’) in the United States. That may seem reasonable: both are iconic and recognisable female Supreme Court judges, and both judge in landmark rulings for women’s and children’s rights. But there is a key difference – across the pond, RBG fits into political discourse and calculations as a ‘liberal’, even ‘Democrat’ judge. Graphics adorning news sites split the bench into red and blue, with her recent death prompting Trump to appoint a more Republican replacement.
Here, Supreme Court judges are required to retire at 75, unlike the life sentences for their American counterparts – and are appointed by a panel of legal experts. For the Court’s highest profile President, British talk of the judiciary’s ‘politicisation’ should be clarified, and properly understood: “What do you mean by politicisation? You could mean that the judges are having to take more and more decisions which ought to be taken by politicians: this is not necessarily a bad thing if they are taken for sound legal reasons and not for party political reasons.
There is a sensible debate to be had about the relationship between law and politics, but what we don’t want is party politics to influence judicial appointments or decision-making. I don’t know the politics of (most of) my colleagues and long may that remain so”.
Brooches and advice
Sadly perhaps, Lady Hale is known by many as ‘spider woman’. As the famous parliamentary case went on, social media became awash with comments about the judge’s magnificent brooch depicting a large silver spider, poised as if to crawl away on her jacket. Soon many discovered Lady Hale had an entire collection of unusual brooches, even suggesting her choice for each case bore a hidden political message. The Baroness diplomatically dismissed that thought.
“I have a great many brooches, all of them gifts from family or friends, and most of them creatures of one sort or another – spiders, bugs, creepy crawlies, frogs, and so on. I don’t have a favourite – the brooches choose the garment they live on and once chosen that’s where they tend to stay. No message is intended”.
The generation ahead
For the future lawyers at Durham, Lady Hale’s advice is clear: “To be a good lawyer or judge you need a good legal brain, the capacity for hard work, and a great deal of courage”, says Hale. “Don’t let the bastards grind you down”.
Image: Supreme Court/EPA
Thanks to: James Adamson