It has been three days since the Divisional Court handed down its ruling in R (Miller and Dos Santos) v. Secretary of State for Exiting the European Union  EWHC 2768 (Admin), finding that the Prime Minister cannot trigger Article 50, and so commence the Brexit process, without the backing of Parliament. Ill-informed fury has greeted the ruling. For example, UKIP leadership hopeful Suzanne Evans dubbed the trio of senior Judges responsible for the ruling - the Lord Chief Justice of England and Wales, the Master of the Rolls and Lord Justice Sales - "activist judges" who were attempting to "overturn" the people's will. "It's a power grab and undermines democracy, Time we had the right to sack them," she tweeted. A number of Conservative MPs agreed with her, criticising "unelected judges" for seeking "to thwart the will of the British people". Newspaper headlines followed suit: the Daily Express described the Judges as having "blocked Brexit"; the Daily Mail described the "'out of touch' judges who defied 17.4m Brexit voters" as "ENEMIES OF THE PEOPLE" ; and the Telegraph opted for, "The judges versus the people."
There has been some superb, quickfire rebuttal of these flawed criticisms. Professor Gavin Phillipson promptly published a searing analysis of the "frankly frightening" political and media reaction to the Divisional Court's ruling, asking "do pro-Brexit politicians and journalists attach any value at all to what we call 'the rule of law' or 'the independence of the judiciary'? Or are they out simply to bully the court’s judges and whip up hatred against them? " The Criminal Bar Association, similarly, tweeted, "Today's a bad day for the constitution. Not because of Brexit case but attacks on independent judiciary & rule of law." An editorial in the Independent and detailed pieces in the Guardian and Financial Times explained what the ruling from the Divisional Court had in fact been (which differed greatly from how it was portrayed), and criticised the critics.
Many of the media's criticisms focused upon the three individual Judges. The Daily Mail screamed in one headline:
"The judges who blocked Brexit: One founded a EUROPEAN law group, another charged the taxpayer millions for advice and the third is an openly gay ex-Olympic fencer."
Even the Daily Mail appears to have thought better of using "openly gay" as an insult, or indeed suggesting that excelling at an Olympic sport prior to becoming one of the country's most senior judges was a legitimate basis for criticism, and the headline was later, quietly, amended.
But then appeared a further headline and article, this time criticising a number of the Supreme Court Justices who will hear the Government's appeal, in an apparent pre-emptive attack on Judges it anticipates may, like the Divisional Court trio, have the audacity to rule against the Government. Singled out for particular abuse was Baroness Hale, the Deputy President of the Supreme Court, and the first - and so far, the only - woman Lord of Appeal in Ordinary and woman Supreme Court Justice. This time, the Daily Mail headline read:
"Radical feminist who is a long-running critic of marriage, the judge happy for the law to be seen as an ass and 'the cleverest man in Britain': The Supreme Court judges who'll rule on Brexit."
This is not the first time the newspaper has attacked Baroness Hale. Over twelve years ago, when she had been appointed to the House of Lords, a January 2004 profile by Clare Dyer in the Guardian described her as a "totemic hate figure for the Daily Mail, which accuses her of subverting family values." It documented a long history of vitriolic attacks upon her - starting with the criticism of her and her fellow law commissioners as "legal commisssars subverting family values" for their work on proposed revisions of family law. This included their work which led to Part IV of the Family Law Act 1996: Family Homes and Domestic Violence. (This attracted particular criticism from the Mail at the time, given how it protected unmarried victims of domestic violence, enabling them to remain in their homes rather than flee to escape the violence.)
When Baroness Hale was appointed to the House of Lords in 2004, the Daily Mail was again on the attack, describing her as a "hardline feminist" whose appointment "epitomises the moral vacuum within our judiciary and wider establishment".
Many of these attacks over the years have referred to her being married for a second time (not an issue the paper tends to highlight when commenting upon male judges).
The latest attack goes on to summarise Baroness Hale's impressive and varied earlier, pre-judicial career (as an academic lawyer and law reformer) as follows:
"Lady Hale first came to widespread notice in the 1980s when she was appointed to the Law Commission. She drew up a law making it possible for a woman to get a court order throwing a man out of his own home if she accused him of violence. In 2014, a High Court judge condemned the way the law had been used to evict a father of six from his home after 20 years of marriage.
Family Law Act 1996
Based upon the Law Commission's proposed Family Homes and Domestic Violence Bill in 1995, Part IV of the 1996 Act - when eventually passed - provided for two forms of domestic violence injunction: non-molestation orders and occupation orders. Part IV remedied defects in the previous legal regime (which was contained in a variety of places) and provided a single comprehensive scheme concerning domestic violence and occupation of the family home. It has since been supplemented and strengthened by the Domestic Violence Crime and Victims Act 2004, but Part IV remains critical for victims of domestic violence. Every day, across the country, non-molestation orders are granted which keep an abuser away from a victim and/ or their children, and prevent the abuser from doing certain things (such as texting or being physically threatening), and occupation orders are made which provide that a person is kept away from a property where a victim or suspected victim and/ or children live.
Retired Lord Justice of Appeal Sir Henry Brooke has recently described the history of the Law Commission's Bill and how it was unexpectedly blown off course by misplaced criticism:
"It all got mixed up with some people’s worries about the divorce reform proposals, and its technical provisions got very badly misunderstood or misrepresented in the process. We did not propose any new property rights for unmarried cohabitants, and for years the courts had been able to exclude a violent person from his home, irrespective of his status. Our Bill largely mirrored the arrangements that had been in place in Scotland for some years. But all this got lost in the noise, and no time was available at the very end of the session to straighten out all the misconceptions and misunderstandings."
Unfortunately, such misunderstandings or misrepresentations of the aims of the Bill, and the provisions which made their way into the 1996 Act, appear to persist. This week's attack on Baroness Hale mentions what is said to be a recent criticism, in 2014, by a High Court Judge of "the way the law had been used" to evict a father of six from his home - not a criticism of occupation orders, or the provisions of the 1996 Act or the Law Commission's 1995 proposals, but a criticism of the misuse of such an order. It is wholly unclear how this could have any relevance to Baroness Hale hearing the Brexit appeal next month.
Children Act 1989
A similarly vague criticism of the Children Act 1989 is included in the Daily Mail's criticism of Baroness Hale, saying she was "heavily involved" in preparing the 1989 Act and that its opponents criticise it for depriving parents of a say over their children's lives. It is hard to know where to start with this criticism. The 1989 Act was introduced by a Conservative Government, and it was justifiably described by the then Lord Chancellor, Lord Mackay of Clashfern, as
"... the most comprehensive and far reaching reform of child law which has come before Parliament in living memory. It brings together the public and private law concerning the care, protection and upbringing of children and the provision of services to them and their families."
Last month marked the 25th anniversary of the substantive implementation of the 1989 Act, which was heralded by many academics and practitioners, and also by the media, with comments or editorials about the Act's groundbreaking nature and its continuing importance, including in the Times. The Association of Lawyers for Children highlighted the anniversary, stating:
"The introductory text to the Children Act 1989 states that this is 'An Act to reform the law relating to children' – a modest understatement... The Act, crucially, established children's welfare as paramount in making decisions about a child's upbringing. That standard has stood the test of time, and remains crucial at a time child protection services face privatisation, and when two United Nations Committees have examined the record of the UK in implementing its international obligations under the United Nations Convention on the Rights of the Child – and found that we are failing in meeting those obligations."
As well as the important provisions of the 1989 Act so familiar to family lawyers, community care lawyers and children's rights campaigners are acutely aware of the vital role played by Part III: Local Authority Support for Children and Families in protecting and supporting vulnerable children and families, including disabled children, children in and leaving custody, migrant children and families, trafficked children and children leaving care. There have been changes to Part III since 1989, most notably in the Children (Leaving Care) Act 2000 and the Children Act 2004 which followed recommendations made by Lord Laming's inquiry into the murder of Victoria Climbié. The Laming report concluded that the child protection framework under the 1989 Act was fundamentally sound, but it found gaps in its implementation and recommended changes accordingly.
Baroness Hale was instrumental in the crafting of the 1989 Act, of which she should be extremely proud. It was a radical, inventive piece of legislation which has greatly improved the lives of many children.
The basis for the Daily Mail's criticism of the 1989 Act is not clear from its piece on Baroness Hale. However, it has regularly published articles over the past number of years criticising the Act. Sometimes it has said that the 1989 Act's underlying principle "that the child comes first in law courts in the UK" means that, "campaigners for fathers’ rights complain that the courts repeatedly pander to the notion that mothers are ‘more important’ than fathers". Confusingly, on other occasions, its criticism has been very different, saying that the 1989 Act does not provide enough protection to working mothers, and that its gender-neutral provisions concerning parents do not recognise the "nurturing role" played by mothers.
The misleading caricature of these two vital pieces of legislation is used to slur Baroness Hale, the "radical feminist". The disgraceful and outrageous implication of the Daily Mail's piece is that she cannot be trusted to decide the Brexit appeal fairly.
The 'below the line' comments on Mail Online continue the sexist, misogynistic theme which underpins the piece itself. One individual, calling himself 'Captain Sensible,' says, "feminists should not be allowed anywhere near positions of power and influence. Their hypocrisy and bigotry make them unfit for office. Feminism is cancer." Another, 'Monty,' says, "I suspect Lady Hale's main qualification is her gender." And 'MadMaxx' suggests putting her on a bonfire instead of a guy.
The Lord Chancellor Must Condemn Press Attacks
The attack on the Judges of the Divisional Court has been rightly condemned by many lawyers and commentators. Yesterday, the Bar Council of England and Wales passed a resolution calling on the Lord Chancellor, Liz Truss MP, to condemn the recent attacks on the judiciary. The Bar Council stated that it,
"condemns the serious and unjustified attacks on the judiciary arising out of the Article 50 litigation. It regrets the lack of public statement by the Lord Chancellor condemning these attacks and calls upon the Lord Chancellor to do so as a matter of urgency. A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law."
The Lord Chancellor has been rightly criticised for her delay in making a public statement backing the judiciary and emphasising its independence (including in this excellent piece by The Secret Barrister). When she broke her silence yesterday, the Lord Chancellor was criticised for not going far enough, as she failed to condemn press attacks on the Chief Justice of England and Wales, the Master of the Rolls and Lord Justice Sales. It was too little, and it was much too late. This not only does a disservice to those three senior Judges who were doing their duty. It also does a tremendous disservice to those who are next in the sights, and in particular their prime target, our most senior female Judge and the only woman who sits in the Supreme Court.