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Lady Hale must recuse herself from Boris Johnson’s cases

10 October 2019

9:40 AM

10 October 2019

9:40 AM

Brenda Hale is an incredibly clever and more importantly, kind, human being. On a human level you would do well to make a beeline for her at any party or stuffy function. Few judges have done more to help charitable causes and access to law. As I’m not a politician, you can trust me when I praise someone.

It does though feel odd to do so. Lawyers never used to. Being nice or kind or even human; well that wasn’t really our thing. To be honest we have always been extremely vicious to each other – in private. I have a second favourite judge of all time when it comes to his legal opinions and arguments. I always loathed him as a person. That never struck me as a problem.

That is why the current polarisation feels so utterly alien. That is why in the long run I retain hope that we will not end up like America. If you pick a ‘team’ then the rules of tribalism say you must ignore its faults – I doubt any lawyer could manage that for half an hour at best.

It is not tribalism which now calls for Lady Hale to recuse herself from any future cases involving the PM.

On 15 January 1999 there was a written judgment in the case involving Lord Hoffmann and General Pinochet. Lord Hoffmann, that rare combination of both brilliant and fun at parties, had personal connections to Amnesty International – a charity which condemned the, I have no doubt, rightly condemnable General Pinochet. That connection between Lord Hoffmann and Amnesty International was too close. A special hearing of five Law Lords found he should have recused himself from the case. He almost certainly wasn’t wrong in the judgment he reached – but he should not have heard the case.

For justice to be done, justice must be seen to be being done. Justice must be above reproach. I am not suggesting that Lady Hale is or would ever be biased. I want that to be exceedingly clear. The perception of bias, no matter how unfounded, is enough. If I must be technical about why Lady Hale should recuse herself then I note the second limb of the test set out in the Hoffmann case:

‘where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party’

Lady Hale has appeared in front of a presentation slide entitled ‘Spider woman takes down Hulk: viewers transfixed by judge’s brooch as ruling crushes PM’. I believe Lady Hale when she says she did not know that this title would be displayed. But it was and she appeared under it. It is, at best, mocking of the PM.

It has been reported, and I understand it is not denied, that Lady Hale made a reference to ‘girly swots’ in her speech to future lawyers who will, I hope, agree with this article in due time. This is a reference to the PM in the public sphere.

I need go no further, because that is enough. No sitting Judge can demonstrate in public anything approaching antipathy towards a potential litigant who may appear in front of them. The PM is, again quite rightly, just a human being. All human beings are entitled to appear in front of Judges who bear them no antipathy – and who have not indicated even a hint of personal antipathy.

In writing this, which I have hated, it occurs to me that I should not be alone in pointing this out. Whatever this current ‘experiment’ in tribalism is, it has to cease. It has not been edifying. It has not been fun. I want lawyers to go back to being just lawyers.

I trust Lady Hale to put an end to this and to recuse herself from any future hearing involving the PM. I trust that we lawyers have all had enough of this.

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