Lady Hale is a great judge but she made a mistake in Malaysia

The Deputy President of the Supreme Court, Baroness Hale of Richmond, has come under fire from a number of Brexiteers, including Iain Duncan Smith, Jacob Rees-Mogg and Dominic Raab, over a speech that she gave to Malaysian law students last week. They have suggested that the speech indicated bias against the Government’s case.

Lady Hale told the Solicitors Journal earlier this week that she will “absolutely not” step down (or “recuse” herself) from sitting on the Article 50 appeal next month.

Most of the now controversial speech amounted to a canter through the short history of the UK Supreme Court. It was doubtless of considerable interest to the students, particularly as it was delivered in Lady Hale’s clear and attractive style. She devoted just one relatively short section of the speech to a discussion of the Article 50 case. She did so partly because, as she put it, it would have been “discourteous” to her hosts not to explain what the case was all about. She summarised both sides’ arguments pithily. Had she stopped at that, she probably would have escaped any adverse comment.

But, having summarised the arguments of the claimants (who have argued that the Royal Prerogative cannot be used to invoke Article 50) she said this:

“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 for the 1972 Act.”

Lady Hale may not have appreciated it when she delivered the lecture but it seems that the Government’s contingency plan, should it lose the appeal, is to place the simplest possible Bill before Parliament, authorising the Prime Minister to issue the Article 50 notification. Indeed, that is the only conceivable way in which a statute could be passed in the short time available before the Prime Minister’s self-imposed March deadline.

A “comprehensive replacement” of the European Communities Act 1972 would be a far more complex beast that could not be passed in a few weeks. Should the Court rule that such an Act of Parliament is necessary then Article 50 notification will slip back by many months, and perhaps even years. Such Government policy as exists would lie in ruins.

So Lady Hale’s observation, anodyne though it appears at first reading, is in fact politically explosive.

It is also very curious because there has so far been virtually no argument in court over the type of Act of Parliament that might be necessary to authorise notification.

The relief sought by the claimants was simply a declaration that “the Government may make a notification under Article 50 (2) only if authorised by an Act of Parliament.” Beyond arguing that legislation of some sort is required to authorise notification, neither of the two leading claimant’s written skeleton arguments even mentioned the issue of what sort of legislation that should be, and nor did the Government’s response. Nor (except very obliquely) did the question feature in the oral arguments. Unsurprisingly, because it had not been an issue, the High Court judgment did not address the point either.

It is true that Lady Hale did not express a view as to which way the Supreme Court should decide the point, but for her even to float a hitherto legally dormant issue of potentially enormous practical importance just before herself and all ten of her colleagues are due to hear the appeal was exceptionally unwise. It could – and in fact it has – caused some people to suggest that she is biased against the government’s case.

The Supreme Court itself has leapt to her defence:

“Lady Hale was simply presenting the arguments from both sides of the Article 50 appeal in an impartial way for an audience of law students, as part of a wider lecture on constitutional law. It is entirely proper for serving judges to set out the arguments in high profile cases to help public understanding of the legal issues, as long as it is done in an even-handed way.

“One of the questions raised in these proceedings is what form of legislation would be necessary for Parliament to be able to lawfully trigger Article 50, if the government loses its appeal. A number of politicians have raised the same question. Though it was not dealt with explicitly in the High Court judgment, it is not a new issue. In no way was Lady Hale offering a view on what the likely outcome might be.”

I am afraid this simply underlines the problem. Lady Hale’s suggestion that a “comprehensive replacement for the 1972 Act” might be necessary goes beyond “presenting the arguments.” Until now it has not been an argument in the litigation. Whether there should be legislation at all was, of course the central argument but what form of legislation that should be, was not. Far from “presenting the arguments” she has suggested an entirely new one, and one, moreover, that if successfully pursued would be highly inconvenient for the Government. The fact, pointed out by the Supreme Court spokesperson, that “politicians have raised the same question” ought, if anything, to have made Lady Hale even more cautious about discussing it.

The normal test for deciding whether a judge should continue to sit on a case where her bias is alleged is not to ask whether she is in fact biased (that would be very hard to demonstrate and quite impossible in this case), but to ask whether a “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [judge] was biased.”

This absolutely does not mean that judges should recuse themselves at the first sign of an objection. It is important that judges who might appear to be biased should not sit on cases, but is of almost equal importance that they should not be forced off cases because of ill-informed or unfair accusations of bias.

Lady Hale is unquestionably one of the great judges of the last decade and the Supreme Court would be weakened without her presence, albeit that there are retired judges of great distinction who are still authorised to sit, one of whom could replace her.

The very fact that she is so well-regarded may have blinded those of a generally “Remainer” disposition to over-look the dangers that her speech has created.

There is no reason at all to believe that she is fanatically or even enthusiastically pro-European, although her decisions have on occasion demonstrated a sympathy with mildly progressive causes that might not always have endeared her to traditionalists in the Conservative Party.

Iain Duncan Smith has “accused” her – on the basis of I’ve no idea what evidence – of having “pro-EU views,” which misses the point entirely. Judges are perfectly entitled to have political views as long as they ensure that they do not interfere with their reasoning. Such unfair sniping at her integrity will only stiffen her resolve to sit on the case. She will not want, and still less should she be expected, to step down because politicians demand it. It would be the end of the Supreme Court’s independence if politicians had the ability to choose their own judges.

Government lawyers, and particularly the Attorney-General, have been presented with a dilemma. If they do not object to her presence before the case is heard they will not be able to cry foul afterwards if they lose the appeal. They could, of course, decide to ignore the clamour from the back-benches and accept that, unwise as she may have been to talk about the case, Lady Hale did not give any objective indication of bias. I suspect that would be the instinct of the bulk of the Government legal team.

On the other hand, they could object and invite her to recuse herself on the grounds that she has demonstrated apparent bias. If the views of MPs such as Iain Duncan-Smith and Dominic Raab are representative of Conservative MPs generally, one might expect the Attorney-General to come under considerable pressure to do just that. If she then refused to step down, the prospect of a particularly ugly clash between the Supreme Court and the Government will loom large.

Lady Hale too finds herself in a difficult position. She will not want to be seen to be capitulating to what she clearly regards as unreasonable demands. On the other hand, her decision to speak about the case in Kuala Lumpur does now appear astonishingly naïve. It was an object lesson in why judges, however careful they try to be neutral, ought not to discuss the details of cases they are about to decide.

The constitutional importance of the Article 50 case can hardly be over-emphasised. There is no appeal from the Supreme Court’s decision. There is a real danger that Lady Hale’s presence on the bench for this case may begin to undermine the high respect in which the Court as a whole is held. If the Attorney-General invites her to do so then, in this most sensitive, delicate and important of cases Lady Hale would be sensible to accept that she made a mistake and stand aside.

This piece was originally written for the Daily Telegraph 17th November 2016

Postscript

Lady Hale’s point has predictably enough now been taken up by a group of lawyers (Dimitrios Giannoulopoulos, Geoffrey Nice QC, Ben Chigara, Julian Petley, Ignacio de la Rasilla and Katja Sarmiento-Mirwaldt) writing for the the Britain in Europe think tank, published here on the London School of Economics blog. This is what they say about it:

“In fact, the deputy president of the Supreme Court, Lady Hale, has suggested the Court might have to go beyond simply determining whether it is Parliament that has the power to trigger article 50. It might also have to decide what the form of the bill triggering article 50 might be. Taking the unusual step of commenting extra-judicially on a pending case, she noted that an important question for the Court will be ‘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 [European Communities] Act.”

As a result of Lady Hale’s “unusual step” it now seems that some influential lawyers from the “Remain” camp are now expecting the Supreme Court to rule on an issue which until recently had not been given any serious consideration in the litigation.