UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

Rose Falconer and Emma Cross, two editors of the UKSC Blog, met with Lady Arden on 27 March 2019 to discuss her experiences in the UK Supreme Court. With the ten-year anniversary of the court approaching, this was a fantastic opportunity for the UKSC Blog to reflect on the court’s impact over the past decade. It also provided a unique insight into the views of Lady Arden, as one of the most recently appointed Justices, on subjects such as the future of the court and the importance of increasing diversity in the judiciary, as well as offering a glimpse into the inner workings of daily life in the court.

(A) The Role of the UK Supreme Court

What do you see the role of the UK Supreme Court as being, both within the judiciary and the public at large?

“I see the UK Supreme Court as being the visible embodiment of the highest court. For this reason it has to represent all the things that the courts stand for: safeguarding fundamental rights and ensuring that the law is transparent.

This year is the tenth anniversary of the establishment of the court. An anniversary like that is an option to look both forward and back.

Over the past ten years the court has made enormous progress. Though I can only speak for myself, I can see the court being quite a different place in ten years’ time. I think there will be more diversity and an increased use of IT. For example, I would like to see a change in the way information is presented on the court’s website, I think there should be a short summary of each case for members of the public to read.

I would also like to see a greater use of comparative law, with the court thinking about what courts have done in other jurisdictions. I say that because I think this court should be a leader in the common law world and you can only really do that that if you’re comparativist in your approach and are looking at what other jurisdictions are doing.”

In terms of being a leader in the common law world, how do you think introducing the UK Supreme Court has changed our position and perception?

“The important thing is that it endorses the separation of powers and sets the UK Supreme Court up as a separate entity. That, consciously or subconsciously, makes people realise that the judiciary is a separate institution and, therefore, has a very special position in society to resolve disputes and help society move forward.

People who have been here for ten years will also say that the court has enabled the Justices to do many things we could not do in the House of Lords. For example, we can have separate or joint judgments, and we don’t have to call them speeches. I also think it’s been tremendously important to have the public visiting the court. When I come into the court in the morning there is usually a school or a group coming in.”

Looking back on the past ten years, what would you, in your opinion say is the most significant decision that the court has made and the impact that it has had?

“I think that the real change is within human rights legislation, because it has changed the way people talk, and the way they think. The onus has shifted to the state to justify an interference with a right. Previously the executive could make a decision and it would then have to be shown that it was perverse. It’s also hugely significant that the court must interpret legislation as far as possible to give effect to human rights. That’s a major constitutional change.”

Are there any cases that the UK Supreme Court has heard in the last ten years, another example like that, which shows the UK Supreme Court has been leading social change?

“There are many cases where the upholding of human rights has led to a change. The court’s decision about the police holding on to DNA is an example.

I was Chair of the Law Commission for three years, a fantastic job and a hugely broadening experience for a judge or for anyone else. The two projects I was involved with were shareholder remedies and directors’ duties. Ultimately, they both fed into the Companies Act 2006, so they were both valuable projects to do. We consulted consumer groups, individual citizens who wanted to hold companies liable to account, directors and directors’ associations. It was a really wide consultation, but what it taught me was there are some things you can do as a judge, and some things you can’t.

We had a case which we handed down last week – Takhar v Gracefield Developments Limited and others [2019] UKSC 13. Somebody had previously had a judgment entered against them and then they came across new evidence and wished to set aside that judgment on grounds of fraud. The question was whether there was a precondition they had to satisfy before bringing that second action: that they had been reasonably diligent in not getting the evidence and could explain why it was not before the trial judge. We held there was no such bar, but I also concluded that you could have restrictions but you would have to consider a wide variety of situations and it would be a matter for the civil procedure rules committee to work out what you needed to do. So there is only so much the courts can do.”

In terms of relations with international jurisdictions, how often, if ever, are you talking to other judicial systems? How would you describe the ongoing relationship of the UK Supreme Court with the European Court of Justice? Can you see a divergence or noticeably different views coming from different parts of the world?

“There isn’t a regular formal interaction. Judges from different jurisdictions are often informally in touch with each other. It is interesting to find out what sort of problems they’re having. For instance, in some parts of the world environmental law has already become very important in the courts in judicial review terms. It hasn’t quite happened here, but it could do.

Such conversations, however brief, are very important. I’m really concerned that this court should be strong on external relations. That’s another difference between the House of Lords and the UK Supreme Court; this court has built up external relationships with Strasbourg [The European Court of Human Rights] and Luxembourg [The Court of Justice of the European Union], our two supranational courts.

There are also important relationships with other courts, which are more horizontal. This court has sat, though I haven’t personally, in Edinburgh and Belfast.”

(B) Risks to the Justice System

Does it worry you when people call for the removal of the Human Rights Act 1998 (HRA)?

“In 1999 I decided to go to Strasbourg and immerse myself in human rights for a month or so. I had the experience of working within the court: seeing files, talking to judges and lawyers and working out how it all operated. That changed my mind-set and gave me a great sense of confidence in how the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) system operated. Whether it is part of the law which the courts of this country can enforce is a matter for Parliament.”

The Article 8 HRA – the right to respect for one’s private and family life, his home and correspondence – question has been coming up a lot recently. Do you have any view on recent cases and the use of non-disclosure agreements and parliamentary privilege to bypass that?

“The areas where I think one needs to look at are the areas where there is a balancing of freedom of speech with privacy rights. Those cases are very fact sensitive and it is the methodology used that matters, looking at both sides and undertaking a very careful balancing act. This didn’t happen in the Google Spain case, the court simply required the taking down of names from the internet without thinking about the other side of the coin.”

What do you view as the greatest risks to our justice system at the moment?

“My main concern is that the legal system is out of reach for a number of people, unless they are lucky enough to get pro bono help. In the Royal Courts of Justice we do have the Personal Support Unit where a litigant who is clearly affected by having to present a case in court, particularly in the appeal court, will get some moral support from somebody who comes and sits with them, helps them find the page in the bundle, tells them what the judge is saying, what they have got to do, and so on. It is really important to have more help for unrepresented litigants. That could come through artificial intelligence (in the sense we could have kiosks with information which is accessible), or more non-lawyers taking decisions.”

(C) Diversity in the Law

You recently sat on the first UK Supreme Court with a female majority. How was it, and do you think that increasing diversity on the bench will affect the judgments of the UK Supreme Court?

“I really like the way you put that question because you talked about diversity across the board.  I have always spoken about diversity of ideas and thought. That to me is the important thing when you come to discuss a case. Judges will come at the problem from different angles and with their own practical life experiences. You do not want everybody coming at it from the same position otherwise that reduces the point of having five people. So I think diversity of all kinds is important and I’m sure that it will increase in the future.”

You’ve spoken in previous interviews about how, when you were considering entering the bar, people suggested that, as a woman, that wasn’t a suitable career path. Having now been through that, do you see the legal profession changing?

“It has changed a huge amount since the day that I became a member of chambers, because there were very few women practising back then. I’m not now a member of the bar so I don’t have enough experience of what is actually going on at present, although I read the papers and see that some people say the problems are still there, which is very regrettable. However, I don’t think that is true generally of chambers – there seem to be some very successful women appearing as advocates, though not enough.”

(D) Life as a Judge in the UK Supreme Court

You took office as a UK Supreme Court Justice on 2 October 2017. Has your experience so far been as you anticipated it would be?

“I think it has been better. Since I have taken office I have not done very many cases in the UK Supreme Court but I have done many cases in the Privy Council. Such cases often come from the Caribbean, and are either of constitutional importance or of importance to the financial community.”

What do you think are the best and worst parts of your job?

“Well the best part is obviously the judging – which is very fulfilling – and as I say working in this building is also a great pleasure.

The worst part is that there are only 24 hours in the day! I find that very difficult, because I really like reading around my subject.  I like to know why a particular point of law matters and to see whether there are other issues in that area.”

How many cases are you working on at any one time?

“Well that depends on how quickly the previous cases that we have heard have been resolved by a judgment, which will vary. I couldn’t give you a precise number but somewhere around 20. It could be more and then of course there are all the permissions to appeal, which involve a lot of work.”

Have you ever changed your mind after delivering a judgment?

“It’s a very interesting question. When I got to the Court of Appeal we had a case where people were appealing on the ground that the reasons given in the judgment were incomplete because the judge hadn’t dealt with a certain issue. What we said in the Court of Appeal was that if that happened it was the counsel’s duty when the judgment was delivered to address this issue. However, once the Order is sealed, that’s the end, only the Court of Appeal or a further appeal court can deal with it.”

What has been the most interesting case you have presided over?

“I’ve been a judge since 1993, and I’ve had many cases but one I thought was particularly interesting was the Steinfeld case. Miss Steinfeld had been in a permanent relationship with her boyfriend and wanted to enter into a civil partnership. However, civil partnerships had been created for same sex couples not for opposite sex couples.

She took on the burden of showing firstly that there was discrimination within the ECHR and secondly that the discrimination was unjustified. The trial judge held that there was not discrimination because she could always get married.

When it came to the Court of Appeal, we looked at the case law and I was able to write a judgment saying that there was discrimination. Then there was the question of justification. The government was saying there had only been same sex marriage for so many years and they wanted to see whether civil partnerships were really necessary. Two of my colleagues considered that this was an adequate justification though I was much more doubtful.

However, the UK Supreme Court had no difficulty in saying there was discrimination and that it was unjustified. It made a declaration of incompatibility. So you had a situation where civil partnerships were potentially one way of remedying discrimination and making it available to opposite sex couples would be another way of resolving discrimination.

Legislation has now been passed which will enable the necessary changes to be made and may lead to considerable social change.”

From a more practical prospective how do you liaise with your fellow judges when you’re sitting on a case together?

“The process is highly collaborative, although it’s not in principle different from the Court of Appeal. We meet before and we meet afterwards as a group and there is a huge amount of conversation going on all the time. In the drafting of the judgment there will also be collaboration in the sense that people will suggest to you that a certain point might profitably be added.”

(E) A career in the legal profession

What has been the difference between being a judge and a barrister, do you miss being a barrister?

“I’m very happy being a judge because you can devise the solution which you think is right in the circumstances. I loved the collegiate atmosphere of chambers but at the same time I’m very happy where I am.

I think it is a natural progression and I do hope practitioners will continue to think that they want to be judges to give something back because by the time you’ve got to mid-career or late-career, you have a huge amount of knowledge about the law and there is so much that you can give to the judiciary and to the people who use the courts. At the same time I think most people would find it very fulfilling, so I would encourage practitioners to do it.”

What have been the biggest challenges you have experienced in your career?

“Well I am somebody who likes challenges. I once had a situation where I had organised an exchange of judges and it needed funding because there was going to be a two-day conference. My funding was removed very shortly before the event so I had to call on a number of universities at the last minute. They were extremely generous such that by the end of the day the issue been resolved. I think those who communicated the bad news to me just thought I would abandon the exercise – no, what’s the fun of that!”

What advice would you give to aspiring: (a) judges; and (b) barristers?

“I think as a judge it’s important to question assumptions all the time. There was a judge who told me he had a note on his desk which said “question the assumptions”.

To barristers my point is to prepare and prepare and prepare again. I think it is incredibly important if you’re going to be in court that you know your own case inside out because you don’t want to be taken by surprise.

Overall, I think my advice to people coming into the legal profession is simply to persist and remember to dream big.”