The Oxford Union welcomed Baroness Hale on 24th November as she answered questions about her legal career to a packed audience in the chamber.
Baroness Hale is a British judge who joined the House of Lords as a Lord Appeal in Ordinary in 2004 and remains the only woman to have been appointed to that position. She then transferred with all other Law Lords in 2009 to the then-new Supreme Court, where she served as Deputy President from 2013 to 2017 and President from October 2017 to January 2020.
Hale was responsible for overseeing the court as it made several significant rulings, one being when it declared the former Prime Minister Boris Johnson’s decision to prorogue parliament in 2019 unlawful.
Opening the talk, Hale shared her thoughts on current events, namely the Scottish Independence ruling earlier in the week.
“Anybody who has read the Scotland Act would not have been surprised by the decision of the UK supreme court [to disallow an independence referendum without Westminster approval]”. That decision is very far from one that turns the Supreme Court into a political court. It was a straightforward decision.”
Hale then focused more generally on public outcry to some of the court’s rulings. “It is always difficult to persuade those who don’t like a court decision to not attack it politically,” she told the chamber. “The answers to legal questions have political implications. So when we ask about the process of exiting the EU, none of that was about whether we should leave, but about the role that parliament should play – a constitutional, legal case.”
Hale believes that the appointments to the UK Supreme Court are based on an open, transparent, and independent merit-based system. “I’m living proof that politics doesn’t come into it,” she said, adding “Judicial appointments in the UK are not made on party-political grounds”.
Next, Hale discussed the challenge the court faces with interpreting laws. “It has always been the principle that you try and interpret the words consistently with what you think parliament’s intentions to be. Although these have never occurred to most members of parliament when they voted.”
The Union then asked Hale about the increasing perception of the court as a political body following the two Gina Miller cases and questions of the Human Rights Act
“The only thing the courts can do is explain their decisions and explain why they are making those decisions,” Hale responded. “The courts have limited power to defend themselves against unjustified criticisms. The best we can do is reach our decisions in accordance with legal principles. If the public thinks we’re doing something different there is very little we can do against it. It is the job of Lord Chancellor to defend the courts – and most have been quite good at that – but one or two have not – and you all know what I mean by that.” Laughter from the audience followed.
“Although parliament made a song and dance about [certain decisions] it is parliament’s job to keep us in check,” she continued “They are legally and constitutionally supreme. But as we all know, our government is not separate from parliament and must command a majority. So basically, the government is in charge unless parliament says no.”
Asked about whether she thought the House of Lords should be elected, Hale said, “Reform of the house of lords has been on the agenda of constitutional reform in the Labour Party since 1998 when they removed most of the hereditary lords.
My feeling is that were there to be a wholly elected House of Lords there would then be a huge question about what its power should be. Think about how you would legislate the House of Lords. The PM can appoint who he damn well pleases – checks are not effective. It is difficult to put in constitutional form with any degree of respectability. Many agree on reform but deciding how is why it hasn’t happened yet.”
Hale says her proudest case is the Porogation Case from 2019 “though I suspect the Yemshaw [v London Borough of Hounslow case on domestic violence] case did more good for people”, she added.
“I am proud of court convening so quickly to ensure parliament could get back some of the time from the unlawful Prorogation, and because it was a hugely important political question that reverberated around the world.” She recalls a meeting with the Head of the Commonwealth shorty afterwards “who said … they were all worried that if it went the other way then their governments would have tried equally egregious things”.
One audience member told Hale that she was a ‘role model’ to many women.
Hale responded that her story “should be a source of encouragement for women and others because it demonstrates that somebody who has none of the usual connections in terms of family, education, social standing, and birth can reach the top of the justice system in this country.
Hale left the chamber to resounding applause.
Image credit: Jonathan Kirkpatrick