Parliament should give judges “as much clarity as possible” in setting out the UK’s relationship to the European Union’s court of justice after Brexit, the new president of the supreme court has urged.
Appearing at her first press conference as head of the UK’s highest court, Brenda Hale called on MPs to give sufficient guidance so that judges knew how far they should “take into account” future judgments from the Luxembourg court.
As the first woman to head the supreme court, Lady Hale denied that she was a “judicial activist” or that judgments would be shaped by the gender composition of the bench. She also said that government cuts to legal aid had probably been a “false economy” and expressed support for “no-fault divorce”.
Hale, 72, succeeded David Neuberger as president of the supreme court this month. Of the 12 justices on the bench, two are women. Her deputy is Jonathan Mance.
In an opening statement, the two senior justices pledged to “continue improving the way in which we communicate the importance of the rule of law to the public”. Having heard cases last summer in Edinburgh, Lord Mance said, the court would sit for the first time in Belfast next spring.
Hardline Brexiters have urged the government to remove the UK from the jurisdiction of the European Union’s highest court, the European court of justice (ECJ) in Luxembourg as soon as possible and make the UK supreme court “supreme”.
Asked about what the future relationship should be between the UK’s supreme court and the ECJ, Lady Hale said: “We hope that the European Union Withdrawal Act will tell us what we should be doing … saying how much we should be taking into account [judgments from the ECJ]. We would like to be told because then we will get on and do it.
“We will do what parliament tells us to do. We would like parliament to give us as much clarity as possible.” Her views reinforce concerns expressed by her predecessor, Lord Neuberger, about the need for clear legislative guidance on the weight that should be attached to judgments from Luxembourg after Brexit.
The Luxembourg-based court of justice of the European Union is the highest court in Europe. Panels of judges from member states sit to interpret whether EU law is being fairly applied and can issue binding rulings over national courts.
The ECJ has had a relatively benign history with the UK - unlike the more contentious European court of human rights in Strasbourg - but nonetheless became a symbol of compromised sovereignty during the Brexit referendum. The EU has insisted that any future agreements on citizens’ rights and access to the single market must continue to be policed by the ECJ.
She accepted that in the past ECJ judgments had not always been clear legally. There had been one occasion when she and fellow judges had had to go back to Luxembourg to ask the EU judges what they had meant, she recalled.
Hale has been accused by some critics of being a “judicial activist”, in the sense of making new law through ground-breaking judgments. “I don’t think I accept the label ‘judicial activist’,” she said. “It means so many different things… All judges have to be active in the sense of working out the answer [to disputed claims in court].”
She has previously implied that having more women on the supreme court might deliver a different sort of justice, but at the press conference she insisted there was no “single woman’s viewpoint” on legal matters, although having a second woman on the supreme court might “change slightly the type of conversation at lunchtime”.
In her opening remarks, Hale recalled a saying by the former US secretary of state Madeleine Albright, that there was “a special place in hell” for women who pull up the drawbridge once they have succeeded in obtaining high office. She hoped she had avoided that fate, she said, now that a second woman, Jill Black, has been appointed as a supreme court justice. “I just hope it won’t take another 13 years before a third, fourth, fifth and sixth woman are appointed,” she added.
On no-fault divorce, which reformers are urging the government to adopt, Hale said she had not changed her position since supporting it when she was a member of the Law Commission about 20 years ago.
The Ministry of Justice is reviewing the impact of deep cuts to legal aid introduced by the 2012 Legal Aid and Punishment of Offenders Act (Laspo). The president of the supreme court said they had probably been “a false economy”. Early legal advice, she said, could help resolve many legal problems.
Referring to newspaper attacks on the judiciary following the article 50 high court judgment last year, in which judges were condemned as “enemies of the people”, Hale observed: “The press are free to write and say what they wish to write and say. But [they should consider] how dangerous it may be to the rule of law – and that’s the glue which holds society together - if unjustified criticism gets out of hand.” Asked whether she would intervene publicly, she added: “I would wish to do so if it was appropriate.”
This article was written by Owen Bowcott Legal affairs correspondent from The Guardian and was legally licensed through the NewsCred publisher network. Please direct all licensing questions to firstname.lastname@example.org.
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