John Bald is a former Ofsted inspector and has written two books on the history of writing and spelling. He is Chairman of the Conservative Education Society.
Policy Exchange’s panel debate on the Supreme Court’s (SC’s) prorogation judgment co-incided with the publication of a children’s book,”Judge Brenda and the Supreme Court”, describing the career of its President, Lady Hale, and written with her co-operation. Both had as much to say about educational, as legal, issues.
The main attraction at the panel debate was former Supreme Court Justice, barrister and historian Lord Sumption (Eton and Oxford). Lord Sumption, a former adviser to Sir Keith Joseph, is a long-standing opponent of judicial expansion. His conclusion, that the 11-0 prorogation was correct, accepted the SC’s argument that prorogation was not a proceeding in parliament, but an attempt to prevent parliament from proceeding. As Ministers were now responsible to parliament, and the Queen was bound by their advice, to allow this prorogation would leave Ministers responsible to no-one, and so was unacceptable.
Sumption’s clarity, logic and ease of delivery made his six-minute slot sound as if he had all the time in the world. The same could not be said of his co-panellists, QCs John Larkin (Attorney General for Northern Ireland), Helen Moutfield, ( Matrix Chambers and Mansfield College Oxford), and Patrick Laurence. John Larkin recounted a series of criminal cases during the troubles that had little obvious relevance to prorogation. Helen Mountfield said little more than that the judgment was “of course” correct. If this seems harsh, check the link above. John Larkin overran his time, but argued that the judgment was likely to lead to legislation by litigation, with cases fast-tracked, putting judges under pressure and leading to exactly the kind of judicial expansion that Policy Exchange’s Judicial Power Project is trying to check.
It is hard to know if this is correct. Lord Sumption thought not, and cited the first paragraph of the judgment. The 11-0 result, indicating the assent of some justices who are known to be opposed to judicial expansion, suggests he may be right, and that the underlying axis of the Human Rights Act and expansionist justices is a separate issue. Helen Moutfield is certainly an authority on the issue, as editor of Blackstone on the HRA and a senior member of Matrix, whose activities, I suggested, are the main thrust of judicial expansion and not conducive to the public good.
Lord Sumption also said that there was no difference between the procedures of the SC and those of the House of Lords Judicial Committee which preceded it, “except for its £26m budget.” There lies the rub, and “Judge Brenda” illustrates it to perfection. The SC and the HRA are a radical attempt to establish the judiciary as the senior partner in the legislative process, and this book, distributed free to all children in Derbyshire by the Legal Action Group, of which Lady Hale is a long-term supporter, is another step in this direction. Lady Hale makes decisions, writes new law, and is pictured socking a male judge on the jaw, albeit under a statement that disagreements between judges “are not the same as having a fight.”
The Mail described the book as “something out of the Soviet Union”, though it’s hard to see Lady Hale presiding over a gulag. The outsize spider brooch she wore while delivering her judgment, and her appearance at the Girls School Association, had an element of gloating, but most of us would gloat if we’d just won 11-0, and I’m happy to join her in standing up for swots, as I’m a bit of a swot myself. Wearing her Doctor’s bonnet with the judicial robes is another matter – if the court has no headgear for judges, that should apply to her too, and she is pictured without it on the team photograph at the end of the book.
Lady Hale encourages children to work as hard as they can at school, and the book’s author, Afua Hirsch, tones down the feminist angle in the interactions between children – girls are not always perfect, and “Class 3 boys” – from a visiting school party – “are on our side.” Still, the idea that the judges “decide our laws”, with no mention of parliament, and the presentation of the President as a person of infinite benevolence, goes beyond the favourable presentation we can expect in an authorised biography, and into the realm of propaganda.