An exclusive interview with Lady Hale
16 Thursday Sep 2010
Over the summer, two of the editors of the UKSC Blog took a trip to the Supreme Court to interview Supreme Court Justice, Baroness Hale. This is what she said.
1. The UK Supreme Court has just completed its first legal year, what for you has been the highlight?
I asked our judicial assistants about this and they all agreed that the highlight was the JFS case [R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and others  UKSC 15].
They said that the case “hit a lot of buttons“. One such “button” was that they thought the result was right and that it reaffirmed important principles about discrimination law, which might have been in danger because of the peculiar facts of the case. Another was that the case attracted a huge amount of public interest and we had a large and loyal audience who stayed throughout (which is very unusual with Supreme Court cases).
In addition, they said, all of the Justices were very engaged in the case and the quality of the advocacy was superb. So that is why they thought that it was the high point of their year, and I think that they were probably right.
2. Are you happy with the level and quality of public discussion of the Supreme Court’s decisions? There have been some very high profile decisions, but the majority have come and gone without an enormous amount of public discussion. What is the Supreme Court doing to encourage more public interest and discussion?
It’s very difficult isn’t it? We thought that we would probably be more in the public eye here than we were in the House of Lords, yet I don’t think that the press and the media have taken much more interest in our work than they did before. My impression is that the difference has been in the general public’s interest rather than the media’s. As far as media discussion goes, it seems to me that it’s neither better nor worse than it used to be. Of course we welcome informed debate and are sad when debate is ill-informed.
In terms of encouraging more discussion, I think producing press summaries on the Supreme Court’s website (rather than press notices) is a good idea. At least it means that there is an accurate summary of what the issue in the case was, what decision was made and the reasons for it. Over time, this ought to improve people’s understanding of what the Supreme Court is doing.
The Supreme Court is trying to do more to explain its work to the wider public and make its procedures more transparent. No doubt the Court has more to learn in this respect, but I think that the website is a great deal more informative and user-friendly for both professionals and the public than it was before. People are also encouraged to come and visit the Court, especially school parties and student groups, but we welcome people who just drop in from Parliament Square and we have a very informative exhibition space on the lower ground floor. No doubt there is more to be done.
All our proceedings are filmed and broadcast live in the Supreme Court building, so anyone can come and view it in the exhibition space. The recordings are available to the media upon request but they don’t often ask. The style of case presentation and/or argument in this country involves large amounts of reading out to the Justices, which can’t be tremendously interesting to members of the public. There are no witnesses, there’s no drama. So I’d be very surprised if anybody actually watched an argument for very long. This is one of the reasons why JFS was so interesting, because there were lots of loyal people who were there all the time, who must have known exactly what the issues were and been very interested in the legal argument.
3. There has been an increasing tendency towards the use of written submissions over the past two decades. Is this a good thing?
Yes, of course it’s a good thing. In fact it makes proceedings less boring because in the past, when there wasn’t so much written argument, people used to read out loud what we have now all read before the hearing begins, and advocates would spend even more time reading parts of the evidence and extracts from the law reports and so on. I myself would reduce the oral submissions further (although not necessarily as far as the US Supreme Court, where oral arguments are limited to, I believe, half an hour on each side).
Most of my colleagues would probably take a different view from me, but I do not like listening to counsel cherry-picking the bits they like out of the important cases. I think we should be told what cases counsel thinks we should all have read in full before the hearing, and then the oral discussion can concentrate on what they mean and what their impact is on the case in hand. That’s what I would rather do.
However, I do believe that oral submissions are important, and not just because one can change one’s mind in the course of oral argument. It often becomes much clearer what the real issues are in a way that may not have emerged from the written submissions alone.
4. Is the present system of judicial recruitment and training a good one in terms of there being a large enough pool of experience and interest being brought to the bench?
There is a case for greater diversity of experience and interest at all levels, and an argument that a second tier appellate court could, and should, be even more diverse than either trial courts or first tier appellate courts.
Given that in the Supreme Court, we are not finding facts or assessing evidence, but looking at issues of principle, sometimes with a policy dimension or even a small ‘p’ political dimension, a wider range of experience might be appropriate than simply having been practitioners and lower tier judges. In fact there are Supreme Courts around the world which do have a more diverse composition than we do for just that reason. However, if we were going to follow this approach in the UK, we would have to do it quite openly, to be clear about it, and why.
I’m quite embarrassed to be the only Justice to tick a lot of the diversity boxes, for example the gender one, the subject areas in which I’m interested (which are not ones that most of my colleagues have had much to do with up until now), the fact that I went to a non-fee-paying school and the fact that I wasn’t a practitioner for any great length of time. I’m different from most of my colleagues in a number of respects (and they’re probably at least as conscious of this as I am). I think we could do with more of that sort of diversity.
In my opinion, experience as a lower court judge is less important in the Supreme Court than in the Court of Appeal. There are suggestions from time to time that academics should be appointed directly to the Court of Appeal, and it does happen in other jurisdictions. However, I’d have found it much harder to do the Court of Appeal job than to do this job without having had previous judicial experience. In the Court of Appeal you are hearing appeals on fact and law where the trial judge is often being criticised for not having got things right on the facts, whether these are criminal or civil appeals. Looking at a lot of evidence and assessing whether the trial judge has got it right or wrong is much more difficult when you have no experience doing a trial judging job. A judge in the Court of Appeal also spends a lot of time doing paper applications for permission to appeal and assessing those is a great deal easier if you’ve done the trial judging job before.
However, that is not what we’re about in the Supreme Court which is why the case for direct elevation to the Supreme Court is much stronger than that for the Court of Appeal.
5. In his recent lecture, Lord Hope spoke about the funding of the Supreme Court. Have you any comments on this?
I have read Lord Hope’s recent lecture and I think it’s very interesting. When the whole debate about setting up the Supreme Court was taking place I was in favour of its creation, and a great follower of Lord Bingham’s enthusiasm for it, because I did not think that we should be in Parliament, and the more effective and political the House of Lords became the less appropriate I thought it was that we were there.
On top of that, we took up a lot of space in the House of Lords (although we still didn’t have enough room) and our being there caused confusion to members of the public who thought we were also doing a Parliamentarian’s job. So I was a great believer in making the change, but of course not in our being thrown out of the frying pan and into the fire.
During the debates about the creation of the Supreme Court the point was made (I believe by Geoffrey Howe) that at least the Law Lords had the independence of their funding coming from Parliament (which has a direct line to the consolidated fund) rather than going through any departmental budget, whereas once we left Parliament our budget (albeit theoretically separate) would go through the normal departmental budgeting and allocation processes. The question was asked whether that would be a better guarantee of our independence than staying in Parliament. However, nobody in 2004/2005 thought that there was a real danger that funding would be the problem that it now is.
I did touch on the issue in a lecture that I began developing some years ago, so I was at least aware of the argument. But until the credit crunch and the extreme necessity for restricting public expenditure it probably didn’t seem like more than a theoretical problem. I think that it may be a real problem in the future. I don’t want to add to anything that Lord Hope has said but he has drawn attention to the fact that this may well be the case.
There have been one or two branding things which have caused me some irritation since we moved to the Supreme Court. For example, we have joined the Government Secure Intranet and the message on the bottom of our emails used to say that emails would be monitored and recorded by the Ministry of Justice. I do not think it acceptable for emails sent from or within any court to suggest that its email traffic is monitored by Government. Of course the reality is that it’s done by whoever is providing the computer services and under the supervision of the court and not of anybody else, but any suggestion of oversight is unacceptable and apparently nobody thought of it until I noticed it.
A further example can be seen by my telling a silly little story. When my daughter with her two tiny children first came to visit the Supreme Court, they went into the Supreme Court café to buy a bottle of water to take away with them. They were told by the person working in the café it was Ministry policy that they couldn’t sell bottled water because tap water was good enough. But we should have our own policy for things such as this – we should not follow government policy or Ministry of Justice policy. For the record, the café does now sell bottled water, which is much better for people than the fizzy drinks they also sell. It’s just little things like that which made it look as if we were out of Parliament but actually closer to the Government than we had been for centuries. That’s not anybody’s intention but it’s something we have to keep an eye on.
6. What reforms, if any, would you like to see in the way that Justices do their work, specifically in relation to delivering judgments? What do you think of the idea of single judgments? Do you think the delivery of single judgments will become more commonplace in the future?
When I asked the judicial assistants what they thought the high point of the last year had been (in order to assist me in answering question 1 above) I also asked about what they thought the low point had been. They all had (different) decisions with which they didn’t agree which is to be expected. However, as a group, they found it most disappointing that the Supreme Court Justices had not got more of a grip on the presentation of judgments. This would include having more single judgments, less duplication between judgments, the order in which judgments are printed, and attempting to have plurality judgments.
The idea of plurality judgments as the norm is very radical. It would mean that the majority who agreed on the result would have one judgment which reflected their common views (with possible post-scripts from adherents) rather than numerous judgments reasoning in almost identical ways towards the same result. It is something that I think some of us are sympathetic to, but it would take a long time to achieve.
This is partly because not everybody is sympathetic to it. There is a view that as a judge you have to take responsibility for your own decisions and be prepared to reason it through for yourself. You cannot just go along with somebody else’s reasoning: that is abdicating your judicial role, especially at Supreme Court level. And of course once you have reasoned through it for yourself, you may just possibly want to share that reasoning with the rest of the world.
It is interesting that the judicial assistants should have picked out the JFS case as a high point because it could be said that the reasoning of all five of the majority was virtually identical. But it is a good example of what I am talking about. If you’ve read all five of those judgments you will see that each Justice was going back over landmark discrimination cases and working out for themselves what those cases meant. I think it was important for every single Justice hearing that case to do that. The problem (essentially whether one can discriminate without meaning to) was not new to me, because I have written on this subject before, but for some of my colleagues it was important to undertake such an exercise because they hadn’t necessarily been confronted with the issue previously in quite such a stark form.
It would not be a good thing if we were prepared simply to go along with what somebody else said for the sake of it. It would be different if the tradition was that the majority who agreed in a particular result agreed a majority judgment, because then there would be much more give and take about how that was put together and what it said and more round table discussion about what should be included. That doesn’t always happen at the moment (although it is happening more), which is why I think that it would take quite a lot of development for single or plurality judgments to be the norm.
But we are taking some steps in that direction and the Justices are doing more joint judgments now. However, we would never get to the position where you couldn’t dissent and I personally hope we would also never get to the position where one could not do a footnote or postscript type judgment. For example, I frequently have a different “take” on a case from that of my colleagues, even though I might agree in the result and with most of the reasoning. However, as “Ms Diversity” I would regard myself as being considerably inhibited if I couldn’t come along and say “hang on, what about the child in this case?” or “hang on, you are you’re telling the factual story in a different way from the way that I would tell it“.
Single or plurality judgments would make life easier for practitioners, but I have a theory about this. If you are a lower court judge looking for a rule or principle on which to decide the next case you’d probably rather have a single judgment (preferably a single paragraph telling you what the answer is) and this would also be true for the majority of litigants. But academics and high-flying and big money practitioners might want the diversity of judgments while the foot soldiers would prefer the precision. If there are several judgments which all reach the same conclusion in different ways then practitioners can benefit, because it opens up a variety of arguments which they can seek to exploit on behalf of their clients. The trouble is the law can never be as clear as people think it is.
The Justices do sometimes sit and discuss their judgments. I think we can take steps to forge more consensus but that takes time. It also takes a bit of a culture change and we would not want to lose the benefits that accompany individual judgments.
7. Do you think having seven or nine panel benches in Supreme Court cases is a useful innovation?
Having bigger panels has become more frequent, and that’s been a conscious decision. One of the points in Lord Hope’s lecture which hadn’t occurred to me before is that we have the space at the Supreme Court to sit seven or nine Justices whenever we want, whereas when we were in the House of Lords we had to make special arrangements to have a bigger committee room and that might not always have been practicable.
Our main concern is that we are not very happy to have a five-member panel which is split 3/2 on a difficult or sensitive case where people can say “if only it had been Justice A instead of Justice B who heard that case then the result would have been different“. Of course, this begs all sorts of questions about how predictable an individual Justice’s decision-making is or isn’t. Some of us hope that we are not so predictable, but others may see us differently. You can of course have a 4/3 decision if there are seven Justices on the panel, and 5/4 decisions if there are nine. But in such circumstances, the fact that five out of nine Justices have reached a particular decision makes it both more authoritative and much less likely that a change in the composition would have changed the result. So that’s the thinking behind sitting in a larger constitution more often, although it does add to the length of proceedings and I don’t think that we’ve always been consistent in the cases that we’ve selected to do it.
If we are being asked to overturn a previous decision of the House of Lords or the Privy Council we would normally have a panel of seven. If we are being asked to reconcile previous inconsistent decisions of the House of Lords and the Privy Council, we would probably have a panel of nine. If a case comes with a great big banner saying “this is of constitutional importance“, we would probably have a panel of nine (the case of R (Smith) v Secretary of State for Defence & another  UKSC 29 would fall in this category, for example). But some cases which have had seven or nine Justice panels have come into none of those categories (for example Radmacher (formerly Granatino) v Granatino). So we have not been entirely consistent.
8. What steps do you think could be implemented to assist with the improved representation of women on the bench, particularly at the higher levels?
On my desk at the moment is the Annual Report of the Judicial Appointments Commission. In the past I would have answered this question by saying “the establishment of a Judicial Appointments Commission” but that has now been done, which is a step in the right direction.
One important thing which would assist with the improved representation of women is for people to realise that merit and diversity are not mutually exclusive criteria. In other words, it is important to see that a more diverse bench is actually a better bench (for which there is quite of lot evidence). But of course people have to be good enough to be appointed, so I think that the real difficulty is assessing merit.
Assessing potential is very difficult. There used to be an easy way of doing it, which was to say that if you are successful in a certain sort of legal practice you are the best candidate for a certain sort of judicial job. So the best silks became High Court judges and could progress further, and the best juniors became circuit judges and occasionally might progress further, and solicitors became district judges and a range of people might become tribunal judges. That was the stereotype. Now I think that the Judicial Appointments Commission is trying to break away from this. But it is extremely difficult to assess in other ways whether people have demonstrated the capacity to do the things that judges do. We are all still in that mode of thinking “well if you have done X that shows you can do Y“. So that too is a work in progress.
For example, setting an examination looks like a very objective way of assessing whether an individual is suitable to be a judge. However, if the examination is set and judged by judges, it can be a recipe for more of the same. “More of the same” is of course very good objectively, which is part of the problem, as it makes it more difficult for people from different backgrounds who might well be able to learn how to be a judge to demonstrate this.
The goal is to have an excellent judiciary. I always say that “the four ‘in-quotients’” are what’s important: that is intelligence, independence, integrity and industry. Those four things are what you need to be a good judge and we have to preserve that come what may. But that doesn’t mean to say that they can only be found in the traditional places.
The most obvious barrier to the progression of women in the judiciary is that high judicial office has been reserved to those with successful careers as barristers. The Bar is the least family friendly profession in the world, I should think, with the possible exception of investment banking and so for a variety of reasons, the proportion of senior women at the Bar is still relatively low – only something like 10% of silks are women. This is particularly the case in certain practice areas.
Most women who believe in equality for women believe in equality for men too. Many feel that we won’t make genuine progress until men take a more flexible view of their lives. But given that very able women do, for a variety of reasons, become less visible than men in their legal careers, the judicial appointments system should be asking how to select the ones who have really good judicial potential, even though they haven’t reached the point in their professional careers at which they would in the past have been regarded as ready for judicial office.
The barrier is very much still within the legal profession itself. The solicitors’ profession is also very divided between the solicitors who do a lot of court work and advocacy (who tend not to be in firms that are seen as the most prestigious) and those who may do a lot of litigating but little or no advocacy (who may work for the bigger, more prestigious firms). Indeed, in many of the more prestigious firms there is very little encouragement for solicitors to do part time judging (and of course we do take the view, which is a sensible view, that judges should normally have had a part time post before they take on a full time one). Appointing more solicitors would be a good way of diversifying the judiciary but for as long as the big firms of solicitors don’t encourage or support talented people to do this it will not happen. So the problem is one of barriers within the legal profession, coupled with judicial assumptions about what you need to have done to become a judge.
9. Can we ask you about your academic career?
I think that it is the reason I am here. I often ask myself “why am I here?” when there are plenty of capable women with more conventional careers than I have had. One of my theories is that because I have had such an unusual career, my colleagues don’t compare themselves to me in the way that they otherwise might. They aren’t saying “oh I was in chambers with her“, or “I was against her once” or “I knew her at the Bar” or “she was no better than me“, or “she was worse than me“. They could not do that because I was only at the Bar for a short time as a junior. So the unusual career I have had may have made it possible for me to be in the unusual position I am now. Whether it would be possible under the new system is another question.
10. What do you see the frontiers of the law being over the next 10 to 15 years? Issues such as relationship between the state and the citizen, the definitions of the state and discrimination are very significant at the moment but what will the future issues before the Supreme Court be?
I do think the relationship between the citizen and the state is going to go on being important, as will be the relationship of this State with other States. When I was studying public international law in Cambridge more than 40 years ago, the idea that issues of public international law would play such a big part in the decision-making of the domestic courts as they do now would have beggared belief. But human rights law is of course public international law, as is the refugee convention, and these international treaties are having huge implications for the rights of individuals.
I also think equality is very important. For example, how do you reconcile the equality rights of people who hold certain religious beliefs which include the belief that certain types of sexual practice are wrong, and the rights of those people who engage in those sexual practices to be free to do that and not to be treated unequally by others?
We have a mismatch between the European Community law approach to equalities and the human rights approach to equalities. The ECHR is more flexible and less technical on comparability but also has a more flexible justification defence, which could be a tool for balancing competing equality rights. The European Union model usually says that direct discrimination can only be justified on narrowly defined grounds and this creates difficulties when equalities clash. One of my theories (among my many theories), is that if you don’t allow a degree of flexibility, it leads to a tendency to deny that discrimination has taken place at all. If we think of the JFS case, because there was no justification defence available for direct discrimination, a person who deep down thought that the school ought to be able to adopt its own religiously based criteria, even if those religiously based criteria were actually based on ethnicity, would tend to find either that there was no discrimination at all or that it was at most indirect discrimination and thus capable of justification (although in that particular case it had not been justified).
The question of socio-economic and other so-called positive rights is also an interesting area. Take the case of Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC)  UKHL 66 for example [concerning the obligation of the state to keep asylum seekers from destitution]. You could either look upon that as a case about interference with freedom, because the state denied a person all means of supporting himself, or you could regard it as establishing an obligation to supply him with some support. Is that a positive or a negative obligation? The division is not as clear cut as we might like it to be. Also in respect of Article 8 and social housing, if a public authority has an obligation not to evict a tenant if this would be a disproportionate interference with his right to respect for his home, this might begin to look like a positive right to a home, although Strasburg might never say that.
We are enormously grateful to Baroness Hale for giving us her time for this interview. A piece on the interview was also published in The Times today.