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Brenda Hale: ‘There’s absolutely no need to scrap the Human Rights Act’ | Brenda Hale

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Brenda Hale is a British judge who served as president of the supreme court of the United Kingdom from 2017 until her retirement in 2020. Lady Hale studied law at Cambridge, was called to the bar and then worked as an academic for many years. In 1984, she became the youngest person to be appointed to the Law Commission. In 1999, she was only the second woman to be appointed to the court of appeal. It fell to Hale, in September 2019, to deliver the judgment of the supreme court in the matter of the Queen’s prorogation of parliament on the advice of Boris Johnson. The court ruled that the prorogation was unlawful and the spider brooch Hale wore on that fateful day became one of the most famous fashion accessories in history. Her memoir, Spider Woman: A Life, is now out in paperback.

How did you find the experience of writing Spider Woman?
All my other books were about the law, published by legal presses. Writing about me, and my feelings, was not something I’d done before. I found working with my editor, who got me to open up more about myself, fascinating.

You used to have to be very careful, even guarded, in interviews. Do you feel more able to speak freely since your retirement from the supreme court?
I can express opinions to a much greater extent than was proper when I was a serving judge. But I’m also very conscious that I don’t want to make life difficult for my successors, who have a hard job to do, and that I don’t want to get involved in party political controversies, because I’m not a politician.

The law is currently much in the news. What do you make of the barristers’ strike?
There has been a long period of underinvestment in the justice system. This has affected public funding for legal services, which is one of the things that’s affecting barristers. Another is underfunding of the court infrastructure. A lot of the court buildings are in a sorry state of dilapidation. Then there’s the underinvestment in prisons and the probation service. Every aspect of the system has been starved of resources for a very long time. It’s hardly surprising that the people who work in it are getting frustrated. I can’t remember barristers having withdrawn their services before, but I do remember a time when they protested outside the Houses of Parliament holding up banners that proclaimed: RECTIFY THE ANOMALY. [Laughs] Unfortunately, I cannot now recall what the anomaly was.

Will you be joining a picket line, à la Arthur Scargill?
I think not.

How do you see the European court of human rights’ intervention in the planned deportation of refugees to Rwanda, something that seems to have revived the government’s plans to repeal the Human Rights Act?
Well, the government is not currently proposing to remove us from the European convention on human rights, which means that we have to provide effective domestic national remedies for breaches of those rights, to allow individuals to petition the European court of human rights in Strasbourg and to abide by its judgments. But since 2010, the government has been talking about doing something with the Human Rights Act. The Rwandan interim measure, which is what it’s technically called, may or may not have prompted the very speedy publication of the introduction of a bill [that proposes changes to the Human Rights Act], but it was all on the cards anyway.

Brenda Hale and fellow supreme court justices in legal robes
Hale and colleagues in 2017, taking part in a ceremony to mark the beginning of the legal year during her time as president of the supreme court. Photograph: Paul Marriott/Rex/Shutterstock

Would you be disappointed if such legislation was passed?
The Human Rights Act is a perfectly good piece of legislation. There’s absolutely no need to scrap it and doing so is almost bound to mean many more cases having to go to the European court of human rights and more cases that the United Kingdom will lose.

What was it like for you to watch the US supreme court overturning of Roe v Wade, a decision that makes abortion illegal in some US states?
The United States has a written constitution, which means that some of the legislation the elected parliament wishes to pass may not be constitutional. The ultimate power is in the hands of a court, which can rule whether it is, or is not, constitutional. The United Kingdom doesn’t have a written constitution, so all we [the courts] can do is try to make sure that the government sticks within the limits of what the law allows. I don’t know any UK judge who wants the power to strike down legislation. We’re content with a much more limited role and one of the reasons for this is that we’re not appointed because of our political affiliations. I did not know the political affiliations of my colleagues on the supreme court and I think that’s a very, very good thing. One looks with a certain amount of dismay on things in the United States.

What about the overturning of Roe v Wade itself?
It’s a very backwards step, one that certainly damages women’s autonomy over their own bodies. I don’t think abortion is easy. I think it’s a really serious moral issue. But in my view, that moral question is for women to answer.

How did you feel on the morning of 24 September 2019?
I was just anxious that we should announce our decision, and very clearly, so everybody could understand what we’d decided and why. We’d worked very hard to hear the case quickly and to decide it quickly. I definitely wasn’t thinking about what people might read into my brooch.

So far as Brexit goes, have we taken back control?
It’s not for me to say whether we have taken back control. I’ve never expressed any view one way or another about Brexit. The cases I judged [relating to it] were not about whether Brexit was not a good thing. They were about the relationship between the government and parliament and as to whether the government could ride roughshod over parliament. Our job was to stand up for the rights of parliament.

Is it true your former students nicknamed you the Beyoncé of the legal world?
I think it was the website Legal Cheek that called me Beyoncé. The reason for it is that, on the whole, law students like my judgments. Obviously, they don’t agree with every word I say. But when I go into universities, there’s a lot of enthusiasm. I’ve asked them why and they say that they’re clear and readable.

What was the last piece of jewellery you bought or were given?
I was given a brooch by the United Kingdom Association of Women Judges to mark my retirement from the supreme court. It was a specially commissioned piece. It’s… a scorpion.

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