It is plain to see why Lady Hale was president of the Supreme Court, says Jonathan Hodge
January 2020 marked a new decade for us all and the start of a new chapter for the Supreme Court – as it also sees the retirement of its first female president, Lady Hale. Looking back over a period marked by increasing awareness of women’s rights, and the recent centenary of their right to practise law in this jurisdiction, any retrospective on the Supreme Court’s decisions during its first decade should rightly focus on some given by its first lady, Lady Hale.
A notable case was that of Charlie Gard, who had a rare inherited disease and was kept alive artificially. Great Ormond Street Children’s Hospital asked the court to override the parents’ wishes to resort to experimental treatment on the basis it was futile and would only prolong Charlie’s suffering. In the Supreme Court, Charlie’s parents argued that the hospital had no authority to overrule parental rights regarding treatment where it didn’t risk causing the child significant harm; and arguments to the contrary would breach their human rights. Lady Hale refused permission to appeal, ruling that parents are not entitled to insist on treatment that is not in their child’s best interests (a different test to significant harm).
As for human rights, where there is a conflict between those of parents and their child, the child’s must prevail. Lady Hale gave this difficult decision with quiet poise in an emotionally-charged courtroom, providing considerable dignity for Charlie and his parents. In another case, a Christian couple (the McArthurs) owned a bakery which refused Mr Lee, a gay man, his request to bake a cake supporting gay marriage in Northern Ireland, as it conflicted with their religious beliefs. Mr Lee claimed discrimination on grounds of sexual orientation and political beliefs. The judges at first instance allowed the claim and it was not until it reached the Supreme Court – and Lady Hale – that the McArthurs’ appeal was allowed. The court ruled unanimously that the McArthurs could face no civil liability for their refusal to express a political opinion contrary to their religious beliefs.
Their objection was to the message on the cake, not any personal characteristics of Mr Lee or anyone with whom he was associated, so there was no discrimination on grounds of sexual orientation. The prorogation case is perhaps the one most famously associated with Lady Hale, who pointed out in her ruling that it was unlikely to be repeated. The UK was due to leave the EU on 31 October 2019. In August 2019, the prime minister advised the Queen that parliament should be prorogued from around 9 September until 14 October. A number of stakeholders and MPs were concerned such a prorogation would avoid further debate in the lead up to 31 October. This resulted in a Scottish case brought by a cross-party group of 75 MPs and a QC on 30 July; and Gina Miller beginning English proceedings challenging its lawfulness.
On 11 September, Miller’s case was dismissed as being non-justiciable while the Inner House of the Court of Session in Scotland held that the issue was justiciable; that the prorogation was motivated by the improper purpose of fettering parliamentary scrutiny of the government, it was unlawful and therefore void. Both decisions were appealed to the Supreme Court where the 11 justices unanimously ruled the decision to advise the Queen to prorogue parliament was unlawful and of no effect.
Effectively, parliament had not been prorogued. Key constitutional principles at play were parliamentary sovereignty and parliamentary accountability. The court was also mindful of the exceptional circumstances surrounding Brexit. Prorogation would have prevented parliament from carrying out its constitutional role for five out of the possible eight weeks to 31 October. The gravity with which Lady Hale gave this decision more than matched the intensity of the media scrutiny surrounding events. It was plain to see why she was the President of the Supreme Court.
As the first woman appointed to the Law Commission; the second promoted to the Court of Appeal; and the first female law lord – Lady Hale has been a pioneer for women in the profession and set a shining example for all lawyers. Let’s see what the next decade brings. S
Jonathan Hodge is a solicitor at Aquabridge Law, aquabridgelaw.co.uk