On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:
The retirement was to be on 10 January 2020.
This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.
Lady Hale’s retirement by 31 January 2020 was thereby inevitable.
There was nothing she – or anyone else – could do about it.
This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.
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Yesterday the now departing Prime Minister Boris Johnson said in the House of Commons:
“With iron determination we saw off Brenda Hale and we got Brexit done.”
But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).
So what did he mean?
In terms of practical litigation, the statement also makes no sense.
The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.
Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.
So presumably he does not mean that, either.
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What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.
The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.
But the more ardent supporters of Brexit did not – and still do not – see it that way.
And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.
If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.
Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.
If so, these interpretations would accord with something else the Prime Minister said yesterday:
“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”
Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.
Perhaps him using that terms is an indication of the deep state we are actually in.
If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.
This is not a healthy frame of mind.
And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.
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Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.
The worst thing of all is Johnson’s apparent belief that it would be something to crow about if he had indeed been responsible for Lady Hale’s stepping down.
— Brendan Donnelly (@Brendandonn) July 18, 2022
Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.
As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.
Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.
And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.
Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.
But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.
For, if anything, that is what needs to be “seen off”.
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