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Exclusive: Lady Hale will ‘absolutely not’ recuse herself from article 50 appeal

Supreme Court judge says she has ‘exhibited no bias’ and those suggesting otherwise are mistaken

16 November 2016

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Despite criticism from Brexiters angered by her recent comments, Baroness Hale of Richmond has dismissed accusations of judicial bias and will ‘absolutely not’ recuse herself from hearing the government’s appeal on whether article 50 can be activated without parliamentary approval.

Giving a speech to lawyers and law students in Malaysia last week, the deputy president of the Supreme Court said the Miller case raised ‘difficult and delicate issues’ about the constitutional relationship between the UK executive and the legislature and questioned whether a simple act of parliament ‘to give notice’ or ‘comprehensive’ legislation was needed to trigger article 50.

Lady Hale’s speech has angered Leave campaigners who have interpreted it as a delaying tactic to exiting the European Union and have even accused her of being biased.

Iain Duncan Smith angrily claimed the judge has pro-EU views and warned it was not for the judiciary to tell parliament what to do lest it cause a ‘constitutional crisis’. Referring to her as ‘the individual concerned’, the former work and pensions secretary said Lady Hale ‘has always been opposed to Britain leaving the EU’, but her view represented a ‘tiny minority’ of the court.

Duncan Smith was joined in his criticism by fellow Eurosceptic MPs Bill Cash, Jacob Rees-Mogg, and former justice minister Dominic Raab, who said: ‘If such a senior judge muses in public about a pending Supreme Court judgment, the judiciary can hardly scream blue murder if politicians, the media, or public respond. If judges dip their toes in political waters, by making speeches outside the courtroom, they are asking to get splashed back.’

Responding to the criticism yesterday, a Supreme Court spokesman said Lady Hale was presenting the arguments from both sides of the article 50 appeal in an impartial way and that ‘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’.

However, Lady Hale’s comments have led to debate among lawyers over whether she should hear the appeal. Pump Court Chambers’ Matthew Scott remarked: ‘Lady Hale is a very, very good judge but she shouldn’t have gone near the subject of article 50 before hearing the appeal.’

Scott suggested she should recuse herself from the case due to be heard in December. ‘She’s made things much more difficult by talking about it and she should probably acknowledge that by stepping aside,’ he said. ‘It is wrong for a judge to publicly talk about a case she’s about to decide.’

By contrast, human rights lawyer Shoaib M Khan argued Lady Hale ‘didn’t express any opinion, let alone one favouring any side’, while Felicity Gerry QC said ‘judges have a long history of discussing questions before hearings’.

Speaking exclusively to Solicitors Journal today, Lady Hale said she would ‘absolutely not’ recuse herself, adding: ‘I have exhibited no bias and those that suggested that I have are simply mistaken.’

The deputy president of the court said she had not expected her speech to be so quickly picked up by the press or that it would receive such a wave of criticism. ‘Part of the reason for that was I had been in the Far East for over a week and so was not familiar with what was going on in the press here, as I would normally be,’ she explained.

Asked whether, in hindsight, she would have given a different speech, Lady Hale explained that the topic had already been agreed with the organisers before the Divisional Court proceedings were decided.

‘It would have been peculiar in the extreme not to mention the case that illustrated some of the things that I was saying in the speech,’ she said. ‘I would probably have done the same, while realising that it might provoke comment. I was very anxious to be as neutral as possible and to simply explain what the case was about, not to express any view at all. It would have been discourteous to my hosts not to explain what [Miller] was about.’

Asked by Solicitors Journal whether she found it difficult to see elements of the press distort her judgments or comments to generate headlines, Lady Hale replied: ‘Most of the time the press get it right enough. It can be a little bit galling because we can’t fight back if they have misunderstood or, occasionally, misrepresented [what we say]. But it goes with the job of doing your work in public. That is what we do and we have to get used to it.’

The criticism of Lady Hale follows attacks on the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales after the Divisional Court’s judgment in Miller. Asked for comment on the press reaction to that ruling, the Supreme Court judge said: ‘People are entitled to say what they think; we have a free press. It is unfortunate if they do not understand that judges don’t choose the cases before them and that they have to decide them according to law. It has nothing to do with politics.

‘It is unfortunate that isn’t made clear to the British public, because it is very important they understand what the role of the judiciary is, which is to hear cases in a fair, neutral, and impartial way. You have to be independent and true to your judicial oath and cannot allow yourself to be swayed by extraneous considerations that have nothing to do with the law.’

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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