Yesterday morning, the government published its response to the review into judicial review. In response, nuisance-maker-in-chief Gina Miller expressed “concern” at the Lord Chancellor’s description of Courts as “the servants of Parliament”.
“I am concerned, however, by the way in which the Lord Chancellor has chosen to interpret it, particularly his description of the Courts as ‘servants of Parliament'”
This is a conventional orthodox legal view. What Gina doesn’t appear to realise is Buckland was, in fact, quoting the submission of one Baroness Hale – the president of the Supreme Court who sided with Gina twice against the government (once around triggering Article 50, and again during the 2019 prorogation). Hale wrote:
“In the vast majority of cases, judicial review is the servant of Parliament. It is there to ensure that public authorities at all levels act in accordance with the law which Parliament has laid down. In only a very few cases does it operate to ensure that public authorities act in accordance with the common law. If Parliament does not like what a court has decided, it can change the law.”
Gina’s taking aim at the wrong target this time….
Last week the government moved once again to sort out Britain’s turgidly Blairite, messy constitution by appointing a new chair of its review into the Human Rights Act and review of the role of judges to investigate whether they’ve become too political in recent years. Chosen to head the committee is former judge Sir Peter Gross, who, on the same day of his appointment, gave a speech to Swansea university on the subject of “The Judiciary Today – The Least Dangerous Branch”. Some of his comments are illuminating…
Perhaps most eye-catching is his belief that judges should avoid institutional overreach, and his cutting jibes that judges all the way up to the Supreme Court should maintain the traditional virtue of “Judicial reserve and restraint”. At one point specifically referencing Gina Miller’s second Supreme Court, Sir Peter argues judges should not “court public controversy”:
“And judges ought not to be seen as “celebrities””
A pointed criticism of Baroness Hale and her spider broach?
While these comments might excite Tory ranks who want to see the courts reined in, later in his speech Sir Peter said the courts will have a “major role” to play “in the post-Pandemic and post-Brexit times ahead.” Gina Miller’s ears will be pricked…
Guido’s combed through the speech and gives you Sir Peter’s main points below:
Former president of the Supreme Court Lady Hale has made headlines this weekend after telling Times Radio that any judge has to uphold the law, whether domestic or international. Hacks like Cathy Newman claimed she’d heaped pressure on the Justice Secretary and the Attorney General…
Unfortunately for those hoping to continue the now-settled row over the Internal Market Bill, Guido’s has discovered some interesting contradictory cases from Baroness Hale’s past, which show her commitment to adhering international law hasn’t always been quite so clear cut:
- In 2015, Hale agreed with Lord Mance that “The United Kingdom takes a dualist approach to international law”, in other words, if international law is not incorporated into UK law by parliament, ministers (a) can ignore it but (b) they can follow it if they want to.
- In 2012, Lady Hale said she preferred to apply the intention of the UK Parliament over the relevant international EU law because the liberty of the subject (Assange) was involved
- In 2014, Hale used a speech to say that recent cases focusing on UK constitutional rights and those on the relationship between EU law and our constitutional order have grown “awareness of the extent to which the UK’s constitutional principles should be at the forefront of the court’s analysis.”
Some may ask why Lady Hale’s opinions changed in this case involving Boris, though Guido readers will remember her previous failures to avoid being overtly political…
Amber Rudd and her daughter Flora have come out as the latest members of the (totally neutral and objective in her rulings) Supreme Court judge Baroness Hale fan club; rocking t-shirts featuring a replica of Hale’s infamous spider broach on the House of Commons terrace. In the eyes of the Tory Party whips, Amber has always been pro-rogue…
As Guido reported, last week the head of the Supreme Court, Baroness Hale – who a fortnight ago ruled that Boris’s prorogation was unlawful – took a deliberate dig at the PM during a speech. This poorly-disguised political move perhaps shouldn’t have come as a surprise to followers of Hale’s past interventions since she has always found it difficult to adhere to neutrality of the judiciary. She is the supreme courter of controversy…
The prorogation case brought forward by Gina Miller wasn’t Hale’s first Brexit intervention, she caused outrage in 2016 after a speech in which she addressed whether the Government had the executive power to trigger Article 50:
“Another question is whether it would be enough for a simple act of parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement of the 1972 act [the European Communities Act].”
In response to the speech, leading Brexiteers such as Iain Duncan Smith said Hale shouldn’t be telling “parliament how they should go about that business” and Melanie Phillips accused the top judge – not then head of the Supreme Court – of having “thrown a judicial hand grenade” into the Brexit issue.
Hale’s political interventions haven’t been limited to Brexit, however. Perhaps her most controversial moment came when she went out of her way to attack legislation still making its way through parliament, saying the ‘Divorce (Financial Provision) Bill’ was “threatening”; a move that even the Law Society Gazette described as “constitutionally unusual”.
The President of the Supreme Court has also actively lobbied for certain policies, including explicitly declaring that Ireland repealing their 8th Amendment was a “reason to be cheerful” (rather than the more conventional non-political statement you would expect from such a senior judge). In a similar vein, Hale also publically lobbied for changes to divorce laws last year – whilst still president. Hale is of course entitled to her views, but it is worrying that a senior sitting judge feels able to so openly advocate her view on such a controversial issue in public…
This morning, the President of the Supreme Court, Baroness Hale – who 10 days ago ruled Boris’s prorogation unlawful – opened an education conference with the phrase “let’s hear it for the girly swots” as she stood in front of a presentation titled “Spider woman takes down Hulk: Viewers transfixed by judge’s brooch as ruling crushed PM” That independent and non-politicised judiciary in full view, given Boris is likely to be up in front of her again if Jolyon has his way, is this wise?…
