Lady Hale, first female president of the Supreme Court

The judge talks to Agnes Frimston about the challenges of Brexit and the lack of diversity in the higher levels of law

What is the role of the Supreme Court in Britain?

The Supreme Court is the top court for the whole of the United Kingdom. We are an appeal court, so we only hear cases on appeal, and we only hear cases on points of law of general public importance. They have to be difficult, arguable, and not have a clear answer. They have to matter to lots of people, not just to the parties, and they have to be a suitable case in which to try and resolve the issue.

How might Brexit change the work of the court?

The basic role is not going to change at all. It is very difficult to predict what effect Brexit will have. There may be some one-off things, such as if there were another challenge, like the one brought by Gina Miller [who questioned the authority of the government to implement Brexit without parliamentary approval], or there might be challenges to some uses of the powers given by the legislation, if it is passed, and they might be quite short-term. Equally there might be things in the future: most of European Union law is going to become UK law, but we will be able to change it, if we want to. And if there’s a decision by the European Court of Justice in Luxembourg after Brexit, only the Supreme Court can depart from it. 

Britain will have to either lift, or amend, a huge amount of EU law into UK law. How much of that might come to the Supreme Court?

We just don’t know. One could foresee the possibility that some people who don’t like the existing state of EU law in relation to things happening after we have left may raise arguments about changing it. Not changing what it actually says, but changing from the Luxembourg interpretation of it. We would only disagree with a previous Luxembourg decision on the same basis that we disagree with previous House of Lords or Supreme Court decisions − which is very rare.

What will happen to our relationship with the European Court of Justice?

That is going to depend on the terms of the exit agreement. There are all sorts of possible permutations. It could just stop,
although one hopes on a personal basis that we would continue to be on friendly terms. There could be some sort of joint relationship for certain purposes where EU law is going to continue to apply, or there could be something a bit closer − we simply don’t know. We hope that the European Union Withdrawal Act, when it is passed, will tell us what we should be doing.

What is the current relationship of the Supreme Court with the European Court of Justice? 

If the interpretation of European Union law is not clear, and it is necessary for us to know what the answer is in a particular case, then we currently have to ask Luxembourg. It’s a very neat solution because that way Luxembourg answers the question for the whole of the European Union. The answer they give us is binding on the other EU countries, and this keeps EU law the same throughout the Union. But when we get the answer back, it’s for us to apply it to the case. 

So it’s the coercive power of the British state that’s used to decide what the answer is between those particular parties. And quite frequently Luxembourg comes back with an answer which says, this part of it is the EU law bit, but that part of it is for the national court to decide. So it’s a question and answer, rather than a dialogue. Very occasionally, we don’t understand the answer, and we may have to ask the same questions, or similar questions, again − but it doesn’t happen often.

Have there been any particular points of law that the EU or the European Court of Justice have brought in that you feel have had a positive effect on British law? 

There are huge areas of law that are governed by EU law. Our equalities legislation is largely derived from EU law and the UK’s implementation went further than was required by the various EU directives. So from my point of view, that’s a positive element of EU law. And there have been, in that context, some judgments from Luxembourg that have been of assistance in interpreting that law. What tends to happen is that you get one bit of law, and then there’s an interpretation, and then that interpretation gets incorporated into the next iteration of law on that issue. 

So, the distinction between direct and indirect discrimination − that’s actually in the legislation, both at EU and at UK level, but the emergence of the concept came through the Luxembourg court. 

The Daily Mail labelled members of the judiciary as ‘enemies of the people’ after they granted MPs a final say on Brexit. Does this attitude concern you?

The press are free to criticize the judiciary. They may disagree with a decision and say it’s wrong, or think that a particular judge has behaved in a way which is worthy of criticism. We have a free press and they should be able to do that. 

The worry is that unfair and unjust criticism, which suggests that the judges are not actually doing their job, could undermine public confidence in what the judges are doing. It is one thing for the media to disagree with the decision, but it is another thing entirely to suggest that judges have gone out on a limb and done something inappropriate. So that is a concern. But it is the job of the Secretary of State for Justice to point that out. 

Have you sensed this sort of feeling towards the judiciary before?

The press has previously ridiculed the judiciary from time to time. I think the feelings on Brexit are unusually strong  and that just makes the whole atmosphere a bit different. But I suspect that will pass.

You were the first woman in the Supreme Court. Does the Supreme Court represent the modern judiciary? Is it a problem that the top is dominated by white men?

I have said, for a long time, that diversity on all sorts of dimensions is a good thing among the judiciary. Gender is the principal problem, but there are others: ethnicity; disability, to a lesser extent because we do now have some disabled judges; professional background, so that not all judges have been barristers having operated from chambers or private practice but have other sorts of experience of the legal jungle; and socio-economic background, we need all those things. Gender diversity has been difficult to achieve because it has always been assumed that the higher judiciary − the High Court, the Court of Appeal, and the Supreme Court − was recruited from the top QCs, and it’s only very recently that the proportion of women QCs has reached 15 per cent. 

How do you feel about quotas?

I am very much against them. I think you can find talent, but you have to go out and look for it. And you have to be open-minded about where you are going to find it. So instead of assuming that it’s just the top QCs, look for some other people. Of course as far as the Supreme Court is concerned, people almost always are promoted from the lower tier courts. And so, not surprisingly, we reflect how the courts were ten or twenty years ago, and that’s one of the reasons why it has taken such a long time to double the number of women in the
Supreme Court. We’ve got three vacancies this year. We have to appoint the most excellent applicants  and I am hopeful that we might fill at least one of them with another woman.  

Do you think that having a diversity of voices and experiences at the top makes a difference?

One hopes that it would. The whole point of the cases that we hear is that they are arguable and difficult, where the answer isn’t clear, and they matter to a lot of people. And one hopes that a diversity of approaches will get an answer that is better than one that is arrived at by everybody having the same sort of approach. It’s still a collective decision, so you have to try and influence people, but I think there have been occasions where my presence and my voice have influenced the debate. 

Until 2009 the Supreme Court and Parliament were in the same building. Has moving to new premises made a difference? 

It has helped the public’s perception of us because we were quite obscure when we were a committee of parliament. And we have gone out of our way since moving over here to try and publicize our work,  so I think it’s much clearer to people. It’s easier to do having our own facilities, and now that we can broadcast our meetings. It was ironic that all the parliamentary business was televised, with the exception of the Appellate Committee (the Law Lords). So it was decided when we moved over here that the general ban on cameras and photography in courtrooms which applies to England and Wales wouldn’t apply to us. Our courtrooms were set up right from the word go with our own cameras and that’s proved a great success I think.

What are you most proud of?

I am very proud of the Children Act of 1989 in which I played quite a large part. Before the Children Act there were a lot of separate pieces of legislation dealing with the upbringing of children and childcare, and the intervention of the state in family life, all with their different criteria, different grounds, different outcomes and going to different courts. The whole thing was a complete mess. We managed to bring all of those together. Now that seems perfectly straightforward and isn’t it amazing that it wasn’t like that before? But it wasn’t. And it was quite a task. We started in 1985 and we had two separate projects: one was the law commissioner project (I was a Law Commissioner) which was about the law between parents, or private law. 

At the same time the department of health had a project on childcare law, which was about the state interfering in family life − taking children away or supervising them, and I sat on the working party that was doing that. So it was collaboration between the Law Commission that supplied the legal expertise and the Department of Health and other departments that supplied the policy expertise. 

We worked on those two projects simultaneously. There was a lot of political pressure for quick legislation on the childcare law but it was put off until we in the Law Commission had caught up, and we were able to put the two together. That made it more coherent than it otherwise would have been. It took four years. 

Over your long career you have been very forward-thinking on social issues. What do you think is going to be the next cultural change in law?

I don’t know the answer to that. Families are changing all the time and family law will continue to have to develop − mostly by statute and not by case law, because it is mostly contained in statute and we cannot change statute − but there are aspects we can influence. And that will continue. There was a transgender case that we referred to Luxembourg not so long ago, and we had another transgender case which was about the Department for Work and Pensions’ systems for dealing with transgender people. 

In an effort to keep the sex change history away from members of staff who didn’t need to know, the department had to set up a process for having special access rules to records. And of course, having the special access rules drew attention to the fact that there was something unusual about this person. So you had this Catch-22: how do you handle the problem of not letting everybody see the history while at the same time not drawing attention to the person? We had to say that there was nothing we could do about that. We were very conscious that the Department for Work and Pensions was doing its best within the administrative systems that it had. It was brought as a human rights claim, as an interference with private life but we found that there were good reasons for it, and it wasn’t practical for a court to tell a department how to run its administration. 

Have you read the ‘The Children Act’ by Ian McEwan, about the pressures facing a female High Court judge?

I enjoyed it and thought the idea of putting together the private life of a Family Division judge with the public work she did was very clever.  And mostly, the law elements were accurate – except that one judge would not get all the best cases, and the main character got all the best cases. 

Are you hopeful for the law in the future?

Oh yes, I’ve always been excited about the law − you have to be. Otherwise what would you do?

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