Baroness Hale of Richmond, the UK’s Supreme Court Deputy President, is the most senior female judge in the history of the country.
In this filmed interview she discusses issues including the representation of women and minority groups in the legal profession, discrimination, diversity, family law, legal aid, the Supreme Court, the Human Rights Act and the European Court on Human Rights.
RL: Rebecca Lowe
LH: Lady Hale
RL: I’m Rebecca Lowe from the IBA and joining me at the UK’s Supreme Court is Baroness Hale of Richmond, the Deputy President of the Court and the most senior female judge in the history of the country. Lady Hale, thank you very much for joining me.
LH: Thank you very much.
RL: Now, as I just mentioned in my introduction, you’re the most senior female judge in the history of the country and you have been since 2004, when you were the first woman to be appointed as a Law Lord. How frustrating is it for you that in the past decade, you are still the only female at that level?
LH: It is very frustrating. Not only because I would like more female company on the court – no disrespect to my male colleagues, who are charming – but it would be nice to have two or three more women around. And, of course, it’s frustrating because the top court ought to have more.
RL: Because we look elsewhere in Europe, and England, Scotland and Wales are all doing very badly. They are among the worst four, and we have Azerbaijan and Armenia down there with them. How do you redress that balance?
LH: That is very difficult. We are different from Europe because in most of Europe they have a career judiciary and in many countries more women than men become judges at the lowest level, although more men than women tend to become judges at the highest levels, even in Europe. We don’t want to go over to having that sort of career judiciary, where people haven’t done something else before they become a judge. So the problem is to find the able women who, for one reason or another, haven’t become top barristers or solicitors but nevertheless would make very good judges.
RL: So what would you advocate to bring that about? You’ve talked about positive discrimination in the past – would you like to see more of that, and what form would that take?
LH: I have never advocated positive discrimination in the sense of appointing somebody who isn’t the best candidate available at the time. What I have advocated is all sorts of measures like trying to address the systemic problems of women advancing in the legal profession, looking outside the traditional areas for women of quality – and this applies to ethnic minorities and other minority groups as well. Having a judicial career structure, not a career judiciary, a judicial career structure, so all those able women who start at the bottom of the judicial ladder have opportunities for advancement much more than they do at the moment. So there are loads of things like that that could be done before we start any form of positive discrimination.
RL: Is enough being done? Do you feel more could be done in those respects?
LH: There could always be more done. The problem is that every aspect of it is someone else’s responsibility. So deciding what vacancies there are among the job descriptions and person specifications for the vacancies are, on the whole, the court service business. Filling the vacancies is the Judicial Appointment Commission’s business, and they are doing sterling work trying to widen the pool of people who apply. But organising the careers of the judiciary is probably the judiciary’s business, with a little bit of help from the Ministry of Justice. So whereas in the olden days all of that was done by the Lord Chancellor and his department, the responsibility is now diffuse, which makes it harder to make concerted progress. But lots of people are trying.
RL: Have you ever experienced any kind of discrimination in your career?
LH: Probably. But I wouldn’t really know about it. Because the whole point about discrimination these days is that it’s not overt. It goes on very much underneath the surface and people will always have good reasons for making the decisions they make. But I suspect there are one or two jobs I applied for earlier in my career that I didn’t get because they probably thought I was a bit over-assertive, not the model of the sort of sort of person a woman, a professional woman, should be.
On the other hand, I wouldn’t put it past them to have given me certain jobs because I was a woman. Not a woman they didn’t think could do it, but because they knew they needed more women so when they found one they thought could do it, I think I probably benefited from that. And I don’t mind about that. I think it’s women’s duty, if they think they can do it and if they are offered an opportunity, to strike another blow for women’s equality. They should accept it. Get on with it.
RL: Other forms of diversity are also an issue: ethnic issue is one. I’ve heard the statistic that 4.5 per cent of High Court judges are from ethnic backgrounds. It seems like this is perhaps a bigger problem than the issue of gender diversity.
LH: Well it all depends what you mean by ethnic minority. We have only one High Court judge who comes from a visible ethnic minority.
RL: That’s not very much.
LH: No, it isn’t. And the problems in a way are probably even greater than they are for women’s advancement. Because, of course, ethnic groups are even more diverse among themselves than men and woman are categories are diverse. So what might be a solution in one community might not be a solution in another.
RL: Are there any solutions you would advocate?
LH: Well, the same solutions as for the women really. It’s exactly the same problem. Finding the best applicants, persuading them to apply, having a proper way of identifying people and bringing them on in a fair and open and transparent way.
RL: And are we seeing that?
LH: I think we’re seeing the widening of the pool of applicants. We are beginning to see a bit of a transferability of judicial skills, but that is taking a lot longer.
RL: What about social mobility? There was a recent report by the Social Mobility and Child Poverty Commission that reported that three-quarters of all senior judges went to Oxbridge – you yourself went to Cambridge – and 71 per cent were privately educated. It seems there is a long way to go before there is true diversity there, at the upper echelons.
LH: Yes. I don’t know quite how up to date those figures are…
RL: It was a relatively recent report.
LH: Yes, but they may be relying on earlier research to produce those figures. But, having said that, clearly a substantial proportion of the senior judiciary went to Oxbridge – and, as you say, I went myself, and I don’t suppose I would be sitting here if I hadn’t. That is not a problem if you regard Oxford and Cambridge as producing the best law graduate or the best graduates. The problem is further back, as to who goes to Oxford and Cambridge. So I think the privately educated statistic is the more bothering because that doesn’t necessarily correlate with ability, it correlates with a variety of privileges that someone may have in their background. And certainly that would be something that would be a good idea if the balance could be redressed somewhat.
RL: And are we seeing that?
LH: Yes, I think so. It would be very unfortunate if people from state schools thought, well I have no chance of becoming a top judge because I went to a state school. That is not the case. I went to a state school. I have one or two colleagues who went to a state school.
RL: A grammar school, I think?
LH: Of course, it was a selective school, but that’s a product of my age.
RL: I went to a grammar school. But now they are few and far between.
LH: Yes, I went to a selective, single-sex state school – and those, as you say, are few and far between.
RL: Would you like to see more of those? Could that help?
LH: No, I don’t think so. I think good state schools, not single sex and not selective, is the answer.
RL: In 1984 you became the first woman – there are a lot of firsts here – and youngest person to be appointed to the Law Commission and you oversaw several significant reforms there to family law. I wonder now, looking at the British legal system more generally, whether you feel there are any key reforms that you think need to brought in as a priority?
LH: In family law?
RL: More generally, overall.
LH: Well that’s a very hard question. Because no doubt there are all sorts of things that could be made better. So I haven’t got a pet project on at the moment.
RL: And in family law specifically?
LH: Well, I would like to see no-fault divorce. That was one of our recommendations when we were at the Law Commission. A simple, clear, straightforward way of getting a divorce that meant that you didn’t get one instantly and you didn’t have to make allegations against one another to avoid having to wait a minimum of two years before you could get a divorce.
RL: And are you seeing those recommendations being taken on board?
LH: They were taken on board by the Government and much amended. They passed through Parliament in 1996, but in their amended form they were not very practical, so they were never brought into force. So we need a fresh look at it.
RL: There is one issue that you have spoken out about, which is legal aid cuts. I just wonder what kind of impact you feel they are going to have?
LH: What a judge can do is warn of the possible consequences of proposed changes. It is not for us to decide in a time of straightened resources how the country’s resources are distributed. But my view was that taking whole areas of subject matter out of the scope of civil legal aid was going to cause a lot of practice problems. Taking all of private family law, with a few limited exceptions, out of legal aid meant that of course people aren’t going to lawyers, they are going to court. Whereas if they had gone to lawyers, the lawyers would have negotiated a settlement between them and they wouldn’t have to go to court. So many more cases are going to court, or cases that should go to court aren’t going to court. And when they do go to court, there are many more cases where both parties are without legal representation, which means that they take longer and they are much less likely to reach the right result because the parties won’t have the proper material and proper arguments marshalled to help the judge. So the judge has to help – and that’s fine, judges are there to help. But it makes it much longer and much more difficult.
And perhaps worse still are these cases – and there are loads of those – where only one side has legal representation, and the whole point about family law is that it’s meant to be trying to level the playing field between two parties, where in almost all situations one or other of them are more powerful. It’s not always the man that is the more powerful; it can be the woman, it can be the mother. But nevertheless, there is a power imbalance, and the whole point about the law is to try and redress it. And that is very difficult if you don’t have what we call equality of arms in legal representation. And that is just one example of the problems.
RL: I interviewed (former Chief Justice) Lord Woolf recently on this subject and he talked about the potential psychological damage that could be inflicted on someone due to having to take their own case to court and represent themselves, and that this could be damaging and that this hadn’t really been investigated properly. Is this something that you think could be an issue?
LH: It’s a very interesting question. I think the psychological damage in family cases is actually done to both parties by the fact they are fighting in court about really very intimate things. Family breakup is a very fraught and emotional time, and fighting in court just adds to the emotional strain. And if they have any children it doesn’t bode well for the children either.
RL: He also said he thought courts should have some sort of duty of care, like the health service does to its patients. But he felt quite frustrated that there didn’t seem to be the resources that could actually serve to carry that out. Would you agree with that?
LH: That is a very, very interesting question. Much easier for a retired judge to comment on than a serving judge. The idea that the courts are offering a service to the litigants is an important idea, and obviously if you offer a service you should be doing the best that you can. But on the other hand, the courts have suffered probably as much as the legal profession from the limitation of resources and it’s extremely difficult for courts to offer the sorts of service even that they used to be able to offer. And the idea that they should be proactive in looking after litigants is an even newer idea.
RL: There’s another issue that is very topical at the moment, which is judicial review, and there are reforms that the Government is putting forward to change the judicial review process. And I know you can’t comment directly on those because it’s very political, but I wonder more generally how important you feel the judicial review process is?
LH: I think we all think judicial review is an essential element of the rule of law, because its main purpose is to ensure the activities of the public authorities – Government, local authorities, other public bodies – are lawful. That’s what it’s all about. And it also supports the supremacy of Parliament, because almost all of these bodies are acting under statutory powers, so the job of the courts is to ensure these public authorities act within their statutory powers and use them properly. So we are supporting parliament in their endeavour to make the law that other people observe. So we all think it is incredibly important.
RL: Are we seeing some sort of crisis of access to justice at the moment? Because it does seem with legal aid cuts, with the judicial review reform, with the cuts across the public sector, it is harder now to get that access to justice than perhaps it was ten, 20, 30 years ago.
LH: I think in the olden days – by which I mean ten, 20, 30 years ago! – we tended to equate access to justice with access to lawyers. Now, they don’t mean exactly the same thing. It is possible to have access to justice without necessarily having a lawyer. Tribunals have been offering a good service to benefit claimants and many other categories of people without them necessarily having lawyers or any kind of representation. So it’s not necessarily the same thing. But on the other hand, as I was explaining earlier, it is much harder for the court if people aren’t properly represented, because the court has to do things that the court otherwise would not have to do. Obviously I spent most of my professional life where things were expanding and improving, we thought – there were more and more remedies available for injustice. Things like discrimination, employment problems, problems with landlords and tenants and so on, many more remedies, many more ways of getting those remedies. Legal aid being available to many more people for many more types of legal help as well. All of that seems to be improving and access to the legal profession improving as well. And then the remedies are still there, but the access to them is becoming harder and obviously the access to legal help when needed is becoming very hard in certain areas.
RL: I’m interested in your view on funding for the Supreme Court. It’s something you’ve touched on recently in a talk when you said it may be a real problem in the future because now it goes through the Government allocation process, which it didn’t before when it was under the House of Lords. Is this an issue that you think may become problematic?
LH: I don’t know the answer to that and it’s not my affair [laughs]. But clearly there is a difference when you are part of Parliament and Parliament has quite stringent budgetary constraints, but they are the ones it sets itself. And it votes itself the money it needs to defray its expenditure. Whereas once one is out of Parliament, one is part of a... we are an independent part of the bidding process, but nevertheless we have to take part in that, so that obviously has disciplines and constraints that we didn’t necessarily have in Parliament.
And we cost a lot more out of Parliament because we have a lovely building that we have to administer and maintain and keep looking lovely. We have staff that we didn’t need in Parliament, like a library and so on, because that was all supplied by Parliament. So we are bound to cost a lot more, and a lot of our costs are fixed costs. We are paying back over the years in rent the cost of refurbishing this building, which was enormous. And the judges’ salaries, of course, are a fixed cost. So it is difficult for us if we were to be expected to make substantial savings in our present budget.
RL: But you haven’t seen any sign of that yet?
LH: Not yet… We have been very good at economising.
RL: Right (laughs). I’d like to talk a little more about the Supreme Court. It’s obviously been in existence now for five years and I’m interested in what you would say have been the chief highlights and lowlights of that five year period. And whether there have been any adverse impacts from that move?
LH: I can’t off the top of my head think of adverse impacts. I think highlights are our much greater accessibility to the public and to the legal profession and to students and school parties and so on. They can come into this building much more easily than they could come into the Houses of Parliament. We have much better facilities for them. We try very hard to be friendly and welcoming. We have loads of school parties and student parties who come around and use the building for moots.
Our proceedings are live-streamed so people can watch from wherever they are in the world and see what is going on, which is an amazing thing. Very boring of course, but they can watch. And many people who are involved around the fringes of a case do watch, we find. We find quite a few academics watch if it’s a case they are particularly interested in. So I think the accessibility and transparency has been the big achievement and the big difference. Because the cases we do are much the same as the cases we did in the House of Lords. I think the working environment is very satisfactory. I think most of us are very fond of this building.
RL: It’s a beautiful building. It has the old and the new coming together very nicely, as we can see behind us with the stained glass.
Some believe there could be a little more transparency and scrutiny at the appointments stage of the Supreme Court – and I’m thinking here of the US system, which has the Senate Judiciary Committee hearings. I’m quite interested in how you feel the two systems compare, and whether you feel the US has any benefits that the UK doesn’t, or vice versa?
LH: I certainly don’t think the US has any benefits that the UK doesn’t. For a start, their judiciary is political, the federal judiciary is a political appointment, and we are not political appointments. There is no correlation between the political party that was in power when the Supreme Court justices here were appointed and their political views. I think I can be fairly confident of that. And our process now is independent and transparent, in that vacancies are advertised, applications are required, people are interviewed, they may be set all sorts of tasks to do, and it’s a perfectly standard job application process – unlike, if I may say so, the processes in the US.
There has been talk here of confirmation hearings, but one’s observation of how those go in the States is not such as to suggest that they would actually add anything to the political accountability of the people appointed, because people learn very quickly how to avoid all the difficult questions.
RL: They just tend to say, don’t they, that they are going to abide by the law, we are not going to take into account any political considerations.
LH: Of course, that’s of course what we would say. So it’s not going to get anywhere. So I don’t think that is a great help. There is a case for some greater involvement of the politicians in the process, as long as, I think, it’s not party political. A radical idea which I have vented is that one might have a senior politicians, such as a retired Lord Chancellor, one from the Government side and one from the opposition side, on the appointing panel. Because they would bring a different perspective and add to the legitimacy of the appointment one has made. Because at the moment we went from all appointments being made by the Lord Chancellor or the Prime Minister – by the Queen, but on the Prime Minister’s recommendation – to one where they have virtually no say in it at all. Maybe there is a case for introducing a little bit more.
RL: Yes, it’s very interesting. As you mentioned, the Supreme Court in the US is much more political, and also more activist in a lot of ways. And I wonder how you feel about judicial activism, and where you feel that red line is between the role of the judiciary and that of the political realm?
LH: I wouldn’t associate activism necessarily with anything political, although some people would, because activism is in the eye of the beholder. It’s a dirty word for decisions the beholder doesn’t like. But we all try and do our job according to law. Some of us may be more adventurous and creative in our use of the existing legal materials than others are, but actually we all are, because we get new problems and therefore we have to answer these new problems, so you have to try to work out what the answer is when no-one has told you what it is. That is what our job is.
RL: So really it’s about striking the right balance between the development of the law on points of principle and respecting the sovereignty of Parliament? It’s about navigating that line?
LH: Yes, yes. But a lot of our cases are not about statutes…
RL: Yes, so when it is not about a statute, and you really are…
LH: Or only a little bit about a statute, because the statute gives you so much room for manoeuvre. I think we are trying to look for principles and how those principles can best be adapted to the situation we have in front of us.
RL: So how much do you think personal ethnics and values play a part in decision making?
LH: That’s very interesting. It’s bound to. That is one of the arguments for diversity, in that at least one’s experience of life is likely to have some impact on how one makes up one’s mind about particular questions. But yes, we all do come with particular world views. And this has always been the case, and judges have acknowledged this for a very long time, that people have different ways of thinking about the law and different underlying values. Although most of us would probably subscribe to the Ten Commandments in one way or another.
RL: I’d like to talk very briefly about the European Convention on Human Rights. Could you just give your general opinion of the ECHR and the benefits or lack of you feel it brings to the UK legal system?
LH: I think that most judges would agree that it has enabled some pretty important rights of individuals to be asserted and defended against the state in ways that weren’t possible before we had the Human Rights Act. I think we would mostly think that that was a good thing. One of the problems is that we didn’t have a list of things you were entitled to, like freedom of speech, like liberty, like the right not to be treated in an inhuman or degrading fashion, not to be forced to labour or put in servitude or slavery. These are very important rights… freedom of religion. We have a list of those and we can now do something about them if a public authority has infringed them. And that’s a good thing.
RL: You said in a recent lecture that you felt UK constitutionalism was ‘on the march’ after years of concentrating on European legislation as a source of rights and obligations. Why do you think that is?
LH: Well, it has been noticed by one or two people that there have been a handful of cases in this court recently where the court has emphasised that there were common law solutions to the problem which people had not thought about. They had been thinking necessarily about the European Convention. That doesn’t apply to every problem, but it certainly can apply to questions of fair process, where the common law expects fairness in decision making. We think we know a lot about what fairness is and we don’t have to be asking ourselves, what does the Convention require in order to answer that question? That was one of the cases. There was another one about openness of public authorities, the Charity Commission, the openness of their reports – and while it was held that the European Convention didn’t provide an answer, it was said that the common law might have done.
RL You’re clearly a supporter of the ECHR. But you have expressed concern in the past that the current problem facing Strasbourg and the member states is whether there are any limits to how far the Convention can be developed. Is there a concern that its development may go too far?
LH: What I remember saying – and this is one of the continuing debates about the Convention – is that the Strasbourg court has amongst itself, I think, and with other people, discussed how far they should carry what they call the ‘evolutive’ approach to the interpretation of the Convention; in other words, adapting it to new situations as they evolve in new social conditions. And are there limits to that? And there probably are limits to that – after all, it is a text. You can’t go beyond the text.
And also, of course, there is considerable scope for different member states to apply it differently as suits their particular national conditions. And Strasbourg has recently been quite sensitive to that. Two examples: one was the Italian schools case where it was held that Italian state schools could continue to display Roman Catholic crucifixes, despite the fact they were not religious schools because that was so much a part of the Italian culture and identity that they should be allowed to do that. And then, in a recent discussion with the Italian Concilio e Stato, it was pointed out that the Union flag is a mixture of three crosses, but nobody would really object to that as a religious symbol, I would have thought. And there is another case involving France, where they upheld the French ban on wearing face coverings in public. Again, on the basis of the French culture.
RL: Just a final couple of questions. What would you say was the most significant case you’ve overseen at the Supreme Court since you’ve been there over the past decade?
LH: That is so interesting, because we’ve had so many really interesting and significant cases. I suspect the one that most people talk about would be the Nicklinson case. This is the assisted suicide case, where severely disabled people who didn’t want to continue in their very severely disabled state after – in one case an accident and in another case a massive stroke – wanted to be helped themselves to commit suicide. And we had a big debate, a nine-judge court and a big debate, about what the right answer to that might be, because it is currently a crime. So there is nothing we can do about that, except make a declaration that it is incompatible with their human rights, that is it absolutely forbidden for anyone to help them. And five of us thought we might be able to make a declaration of incompatibility, even though it is a very sensitive subject. Two of us thought that the present state of the law was indeed incompatible with the people concerned, and we would have been prepared to make that declaration. Three of the five thought the time was not yet right because Parliament was considering the issue anyway, and the other four thought it was a matter for Parliament and not for the court.
RL: I believe you’re celebrating your 70th birthday in a few weeks’ time – congratulations – and I wonder whether you feel you have achieved all you want to achieve so far in your career, or whether, by the next big milestone in ten years’ time, you would like to have achieved anything else?
LH: What a nice question. I’ll tell you what I would like to achieve. I would like to achieve three or four, at least, women justices on the UK Supreme Court and then I could leave it happy.
RL: That’s a very good answer. Lady Hale, thank you very much for your time.