Hello. For those who don't know me, my name is Helen Manfield,
I'm the principal at Mansfield College and I'm delighted to welcome you to this evening's Mansfield's Public Talk,
which this evening is a conversation with Baroness Hale of Richmond.
So welcome. I'd like to say welcome to Mansfield. Well, welcome to Zoom.
Welcome to our Zoom Room. Baroness Hale is one of those people for whom she needs no introduction really isn't a cliche.
She was the first and youngest woman on the law commission.
She was the first and only woman lord of appeal in ordinary.
When the final Court of Appeal was the House of Lords, she was the first and for many years the only woman on the Supreme Court.
And she was until she retired in January this year, the first female president of the Supreme Court.
And she's also, I'm very happy to say, an honorary fellow of Mansfield College, which is very welcome and very suitable,
given that we are the home to the bone of our Institute of Human Rights and a fine statue of Eleanor Roosevelt,
which I look for to show you one day surrender. And I am also the second female QC to be head of house here.
So I feel we have a fine tradition of women lawyers here.
Very pleased that you've accepted that invitation. And Brendon, I really hope that the first time you speak here would be in person,
but we are absolutely determined to get you here in the 100th year of women being
admitted as lawyers and to as we fully matriculated members of the university,
as well as our fortieth anniversary of women being admitted to Mansfield.
So thank you for accepting that invitation. Thank you for making time for this conversation.
We used the title of Afia Hirsch's children's book about you equal to Everything as the title of this talk.
And I know you are thinking about writing your memoirs in the middle of writing your memoirs.
And I just wondered if we could start with a little bit of background and if you could tell us a little bit about your childhood, where you came from.
Well, I came from a small village in what was then called the North Riding of Yorkshire.
My father was headmaster of a small independent boys boarding school.
So although I didn't go to a boy's boarding school, I did grow up in one or at least until the age of 13.
When I was 13, my father died very suddenly.
And so my mother picked us up, dusted off her teacher training qualifications because she had to give up teaching when she married my father in 1936,
got herself a job as the head teacher of the local primary school.
So we moved down the road and stayed in the same factory in the same village.
And that was wonderful because it meant that my sister and I could continue to go to the same small,
girls' high school in the nearby town of Richmond,
the real Richmond, the original Richmond, after which all the other Richman's are directly or indirectly named.
And it was a very so in many ways an idyllic childhood, but tinged with that great sadness in the middle of it.
And I think you were one of three sisters, as you said, brought up in a boys school, state educated,
I think hardly any if any of the rest of your colleagues were originally on the Supreme Court, but also brought up in a boarding school.
I don't recall Lord Sumption said in his speech about what he called home truths about judicial diversity in 2012,
that racial identity and gender aren't relevant to a candidate's ability to do a job.
And he said it's in fact part of the law of discrimination that they shouldn't be treated as relevant.
And JCR president here, Bev Gilmore, who is a female lawyer, has asked me for your views on on that.
Whether you do think that gender or I suppose family background or race or class are relevant the way that a judge thinks.
Oh, that's a different question for and I thought you were going to ask me and I think I was going to ask you, I answer them both, please.
Well, I thought I may not answer the first one. I thought you were going to ask me whether they were relevant to how judges are appointed.
Well, the president actually asked me is whether they are relevant to how judges think.
And I think that's an extremely interesting question about which a prominent pioneering women judges have often written,
because I think most of us started off with the view that we're lawyers.
The judges, in most cases, a as a famous American judge once put it,
a wise old woman will reach the same conclusion as her wise old man, which is probably the case.
Wisdom being assumed, of course.
But there are cases in which the experience of being a woman, which is necessarily different from the experience of being a man,
brings an insight to the case that it's not a given that the man would have.
Just as I'm sure the experience of being a man brings an insight to a case that it's not a given,
that a woman would have that, and there are some obvious examples of that,
the whole history of women who conceived children who they should never have conceived because of negligently performed sterilisations.
For example, a woman looks upon that situation in a completely different way from the way that a man looks upon it, that that's an obvious example.
But there are a woman looks at violence in a different way from the way that a man and a
woman probably looks at consent to sexual activity in a different way and so on and so forth.
So over the years, there have been quite a few cases where I probably looked at it in a different way from some of my colleagues.
But I was often able to persuade my colleagues to look at it in the same way that I did.
Well, that's interesting, isn't it? I think obviously women don't think the same, all men don't think the same.
But maybe an aspect of wisdom is thinking about what you don't know or you haven't got experience or from what you might need to imagine or ask about.
And that may be an argument for judicial diversity.
So, I mean, aside from being a, you know, a woman and a state educated education, all those other things,
you also had a rather unconventional route to being a judge in that you proprietory principally was as an academic, rather.
I know you were a member of the bar, but not a bar maid. But no,
but I just wonder whether you think that academic and practising lawyers think differently about the law having quite a long experience of them both.
I'm. Yes, probably, although I think it's appellate level, there may not be that much difference,
particularly when you get to a House of Lords or Supreme Court level, because at that stage we are thinking about.
Contested points of law, of general public importance,
and so academics think about contested points of law and the judges are having to think about contested points of law.
So I'm not sure that it's so different then. But I do you remember that wonderful phrase that Stephen Sedley used about advocates?
That advocates were brilliant at reasoning from a given conclusion, yeah.
Yes, and obviously it makes sense when you think about it as an advocate.
And after all, you've been an advocate for most of your professional life.
Yes, very long time. You work out what the results, the best results that you can get for your client,
that you reconcile your client to what is the best result the court can reasonably hope for.
And then you work out how to persuade the court to that result.
So you start from the conclusion and that's the point that Stevens actually was making anyway.
But of course, as a judge,
you shouldn't start from the conclusion you should start at the beginning with the evidence or with the facts as found by the trial judge
with the legal materials that help with the legal principles that guide you and you reason to the conclusion you don't read from it.
Of course you do. Then have to check the conclusion that it's not absolutely absurd or ridiculous or whatever.
I think I think that has to be a reality check at the end, nor do I think that all judges actually do that.
But I've no doubt that that's what we should do.
And to that extent, there may be a difference in the way that people with an academic training and people with a an advocate training approach,
the resolution of legal problems. I'm not talking about fact finding that's a different issue.
OK, so now I'm going to ask you at least a variant on the question you thought I was going to ask you, Paul,
which is we do have on the Supreme Court effectively reserved place for a Northern Irish judge and a Scottish judge,
because those are different legal systems in some respects. Do you think our higher judiciary would be stronger if there were more established routes
to appointment for people with more diverse legal and perhaps personal backgrounds?
Well, I think that the route that we've got at the moment is capable of identifying outstanding judicial ability wherever it may be found.
I think it is capable of doing that.
Whether it actually does is another matter, but it's a great deal better at it than our previous system of judicial appointments,
which was the traditional tap on the shoulder.
This is not to denigrate the people who benefited from the tap on the shoulder approach because they were mostly highly meritorious people.
And I have to confess that I benefited from the tap on the shoulder system for the first four of my judicial, my six judicial appointments.
But but the problem with it is you have to know whose shoulders to tap and you tend to be guided by rules of thumb about whose shoulders and boy,
oh, boy, the occasional girl network in knowing that.
Whereas if you've got an open and transparent appointment system where people have to apply, they have to measure themselves against criteria.
They have to prove demonstrate that they meet those criteria.
But then you are likely to be able to attract from a wider pool.
And this is happening. This is undoubtedly happening since we went over to that sort of system.
You've still got the assumptions about who is going to be best, which sort of judging job.
And those traditional assumptions are quite hard to counteract, largely because their unspoken.
Well, I was going to ask you about that. I remember you said somewhere where you wrote it,
but I remember finding it moving because it resonated with something I've seen happen to people in the legal profession and in the judiciary.
Sometimes, I think, but also actually to an extent, is one of the things that worries me about elite universities.
If they broaden their access, which we really want them to do, it's not just about access, it's about broadening the voices that are heard.
And what you mentioned was the story of The Little Mermaid that you can to be so desperately
accepted that you will cut off your feet and mute your voice and just try to be one of the boys,
I suppose. And you said you were determined not to be. But I have seen people who I think there's always another route to promotion or acceptance.
And after all, you need acceptance in that small establishment.
And I just want to ask you about getting underrepresented voices heard in the establishment,
not just getting underrepresented people into the establishment, but getting those perspectives heard.
What do you think we can do about that?
I think we have to acknowledge that it's a good thing to do, that it's not only a diversity of gender, ethnicity, background, professional background,
and the diversity of professional backgrounds will bring with it a much greater diversity of socioeconomic origins,
because obviously, once we get where we are, we're all middle class by definition, but it will bring with it.
But diversity of thinking patterns is also pretty important.
Diversity of ways of looking at how you confront a legal problem.
And that is something that was acknowledged by that great judge, Benjamin Cardozo in the 1920s.
Another thing that I'm frequently quoting at a time when all the judges were white men in the United States,
that he was he was saying out of the attrition of diverse minds is built something stronger than the individual parts.
And I believe that in a collective collegiate court,
it ought to be stronger for the diversity of views around the table when you're hammering, not the answer.
And that is just as valid. But when we no longer are all white men as it was when they were all white men.
So, yes,
we've got to be open to that and we've got to have an appointments process which is open to that and open to recognising that I'm not running.
It's appreciation of people's qualities on tramlines.
Yeah. And I wonder how we I mean, we get people to.
I guess the question, their own concepts of merit, I, I know I saw and it made me laugh.
And the first hundred years project you were talking about,
having been at Cambridge when there are only three women's colleges and the women are feeling very
lucky to be in Cambridge and some of the men just feeling they're entitled to be at Cambridge.
And you said that there's the sorts of people you want to punch in the face and obviously you didn't punch them in the face.
And I just want a more productive way of getting them to take you and your worthiness seriously.
But I just wonder how people deal with or face down people with a sense of entitlement which perhaps blinds them to one's own merit,
which is a pretty dispiriting thing to happen. It is.
And unfortunately, of course, the people I were talking about were just fellow students that, you know, you could you could beat them.
And it's important. So to do I feel sure that it's not as strong a phenomenon now for your students as it was when I was at Cambridge,
which is, after all, a very long time ago. But there will be people who went to certain schools or came from certain sorts of backgrounds
who will take it for granted that that if they work hard enough and are bright enough,
they will get a place at a university where there are people who are just as hard and are just as bright,
who certainly do not take it for granted that they were better placed to lead a university.
Quite the reverse that one of your problems, as I understand it,
is persuading those young people to think of coming to Oxford or Cambridge to think of Oxford or Cambridge as a place where they might like to be,
because so many seem to be put off by their schools or their fellow students from from thinking that it is a place that they might like to be.
I don't know if that's a phenomenon that you encounter.
I mean, well, in Mansfield, we broadly reflect the educational backgrounds of people in people with our home students.
But obviously it is an issue to make sure that people don't feel well.
I would be uncomfortable. I would be with people who would put me down.
Why would I bother? And I was going to ask that because I think you certainly were perceived by mind,
my saying so by women at the bar as a person, you were not allowed to put her up.
You were somebody who supported other women at the bar. And I do remember a long time ago,
and I was quite a junior lawyer speaking at an international judicial seminar where I was very nervous as much as everyone else.
And I remember you nodding and then in the ladies lawyers afterwards washing your hands and saying, yeah, that's very interesting.
And it was nice of you to not you know, everyone needs someone who knows who you knew.
You knew that that was quite an intimidating environment to be in.
And I just wonder what judges in general and these men and women, but what judges in general can do to.
Yes, in a way, then they ask questions or the way that they interrogated argument,
which obviously has to be rigorous, but which makes people feel listened to and worth listening to.
Yes. Well, of course, one's got to try and do that, of course. And.
If I have been able to do it, I'm sure I have been beastly to people as well without me.
I don't mean to be beastly, but I'm sure some of the things that I have said to counsel will be perceived as being beastly,
certainly not as kind as they had hoped that I would be. But I think if I have been able to try and get counsel to give her that best,
because that's what you want, you know, you don't want to intimidate them.
You want them to do a good job because that's the that's the job that's going to help you as a judge.
That's the way I look at it. Yeah.
But I think my background of 18 years trying to get the best out of a bright young students might just have contributed towards that in a way.
You know, can I move on to a slightly tangential but maybe related question?
One of the things that I know you were interested in your judicial career, and I'm thinking of cases like the case.
And I think the House of Lords is.
Getting people's voices and perspectives taken into account in litigation who might not have been saved for people who are not lawyers,
Ian is in Tanzania. It was a case about whether the best interests of the child were taken into account in mitigation.
And I, Z8, Tanzanite, Z8, Soraya's and my my acronyms are going,
but I also remember in the GFX case where which was started when a child was about nine or 10,
and by the time it got to the Supreme Court, the child was about 12.
And you asked where was the witness statement from the child?
And we had to scurry around and get one because everyone had run this case through the parents who were running the case on the child's behalf.
And you said, I'm interested in what the child mouthy child thinks. Now he's 12. And it was a salutary lesson, really.
And I just what do you think's happened?
Do you think that's a general shift in the way that courts have operated, that they think they ought to think about whose perspectives are relevant?
I hope so, especially children. I mean,
one of the cases that really shocked me very early on in the House of Lords was the case that we had about whether parents and as their surrogates,
teachers should be free to impose corporal punishment on children in independent faith schools.
And so it was all argued on the basis of the religious freedom of the parents.
There was no intervention from any child's rights organisation.
There was no perception that this was actually a case that was as much about
the rights of the child and children involved as it was about the parents.
And so I said so. And I think these days it would be definitely looked on much more as a children's rights issue as well as a parental freedom issue.
So I think we have moved on quite a bit.
And if I have done anything to contribute to that, moving on, well, then I shall feel very pleased about that.
I should add mean one of one of the other things that happened over the course of my
career as a barrister was a real opening up of who could appear in front of courts.
You know, there was really real anxiety about standing for pressure group to bring a case at all.
You know, I recall a case early in my career when the Child Poverty Action Group or case that affected hundreds of thousands of people,
but no one of them could have got legal aid because it was only worth about eight pounds a week.
It was about winter fuel allowance. And the big exciting issue was that child poverty action was allowed to argue the case.
Excuse me, my phone is ringing. Really? Just let me tell them to go away.
Yes. Yes. Hello, I'm sorry, I'm on a zoom call, I can't talk to you now, but there we go.
I can't do anything about that because that's where the phone is and it doesn't matter.
And the yes is so much broader approach to who can bring a case as important to the court, much broader approach,
as you said, to people who can intervene in cases often three or four interveners in cases in the Supreme Court.
Well, maybe not often, but occasionally three or four intervene in a case in the Supreme Court.
And obviously that does mean that the court can get evidence of the wider implications of decision they're going to take.
But I just wonder if you think it may be dangerous for courts to try to do that, sort of taking into account of wider interests,
as it were, being a balancer of interests rather than the government executive doing that?
I just want to that's part of the reason that courts get criticised.
Well, it may be part of the reason the courts get criticised, but it depends on the type of issue that it is.
But if it's the type of issue that involves the balancing of different interests and there are a lot of cases that involve the balancing
of different interests and individual interests against the whole community or different groups within the community against one another.
There are many such cases in which case it is useful to have a broader perspective than the one the litigants bring to it,
particularly in public law cases. Private law cases are a bit different, but the litigants may be bringing their particular perspective.
But actually, if they succeed in persuading the court of their perspective,
that may have knock on effects for others which are not so good in the balance.
So. I sometimes we did get worried that the intervenors were all wanting to pile in on
the same side as the person who is against the government or the public authority.
And that's one reason why we tried to exert a bit more discipline amongst ourselves about how many interveners we
allowed because we didn't want it to look like everybody ganging up on the government or the public authority.
But we are still alive to the varying perspectives on the same problem that different groups can bring.
So you have to try and try and see what can they add that's not going to be there if they're not there.
And sometimes, of course, the government intervenes in cases that involve a public authority that isn't the government.
You can sometimes have the government intervening and.
They intervene in order to promote government policy against sometimes what the public authority wants to do.
And so to give the example of the actual case, which was all about the meaning of violence.
Most of the arguments in favour of a broader definition of violence actually came from the government department,
which intervened in the case because that was their policy and they wanted to persuade the court that it was also the law.
So the government is sometimes on the side of the angels.
Let us not forget that. But I mean, I think that quite a lot of law students on this call, I just wonder what you think is useful,
because I've always been conscious if I've been doing an intervention that's saying me too.
Doesn't really help in court. Quite annoying. So you have to try and think of a different perspective.
But without trying to argue the case, you might have argued if you were running it.
It's quite a delicate balance. And I just wonder if you have any thoughts that might help people in what is a useful intervention.
Well, it is. Something that you used to do quite a lot.
It is useful to have the broad human rights or international context, even if it's not going to add anything hugely decisive to the argument.
Nevertheless, it doesn't ever want to put the the argument in its broader context.
And I think that that is that is useful. I'm not sure that all my colleagues thought it was useful, but I thought it was useful.
I think some of the most useful ones are from sort of associations of people with the particular problem who can
then bring more evidence about how the problem affects those people than the evidence in the individual case.
I was thinking about some of the disability cases.
They can be benefited by having evidence of how this particular problem impacts upon disabled people generally,
or a particular type of disabled person who isn't the same type of disabled person as the one we got before the court, that sort of thing.
Yes. And I think of case the student loans case to we're just looking to vent.
And I thought that I would intervene in that case, but I did really useful context to the case.
Yes, that's right. That's a good example of context rather than a differential impact.
But it was definitely a good example of context. Yeah, yeah.
And can I just move on to the controversy that is ongoing at the moment about the role of the Supreme Court?
I just wonder if you think the role of the Supreme Court did change in comparison with the judicial committee of the House of Lords?
No exception. Of course, it didn't change.
The jurisdiction was the same.
The only difference in the jurisdiction was the devolution issues came from the judicial committee of the Privy Council to the Supreme Court,
which is obviously where they they ought to be. It's the Supreme Court with the whole United Kingdom.
And so deciding whether the devolved institutions have acted within their powers is obviously a role for that's that court.
But that's the only change in the jurisdiction, the types of cases that we chose to do,
or exactly the same as the cases that we did in the House of Lords.
And the way that we did them was the same as in the House of Lords.
There were a lot of external things that changed, like filming and broadcasting our processes,
much greater accessibility to the building, a much more user friendly building and greater outreach attempt.
And and we were able to make our judgements more accessible and useful, I think,
than they had been when they were governed by the rules in the with the procedure of the House of Lords.
But that is a I don't say frills, but the mechanics, the substance of what we did was exactly the same.
And I don't think that we took any different view of what our role was when we were in the Supreme Court, from how we were in the House of Lords.
And there's actually no evidence that we did. But I mean, there is a perception and it's not a perception I share,
but there is a perception and it's very broadly expressed in certain sections of the press, at least naturally in certain sections of academic life,
that by moving across Parliament Square or perhaps because of the devolution settlements and the Human Rights Act,
or perhaps because of your perception of yourselves. But for some reason,
the judges have become more activist and are more activist and are taking on making
social policy judgements in a way that some people criticise as undemocratic. And I just wonder why why you think that such as a result?
Because anything in it there are that you have said so many things that each of which would require a whole seminar to start talking about the.
Undoubtedly. Both devolution and the Human Rights Act required a different role of, well, devolution of the Supreme Court.
Well, actually, of course, most devolution cases come up through the ordinary courts in Scotland, Wales or Northern Ireland.
So a different role of the court because of the different constitutional settlement, the Human Rights Act,
that required a different role of all courts, not just the Supreme Court of all courts.
It required everybody who had to decide whether there had been a breach of the convention rights,
had to do it in accordance with the the the Human Rights Act.
So those things have changed the role of the courts in relation to, in one case,
the devolved institutions, in the other case, the public authorities generally.
But that's nothing to do with the creation of the Supreme Court.
It was the same role, the biggest cases in relation to the human rights that were all decided by the House of Lords.
Yeah. I said, so I do find this whole argument very puzzling because.
I find it difficult to see what the demonstrable proof of greater judicial activism
in these are in areas which the court can't avoid deciding that is there we go.
Yeah, but there was a series of cases where this was expressed in some sections of the press.
But clearly the big ones that the big blow up of this sort of language was the description of the judiciary,
the divisional court actually as enemies of the people in the first Miller case
and then some of the criticism of the role judges took in the second case,
the prorogation case, and someone Joel Busca has just thanked you for talks.
It's very insightful, but asked about your perspective on whether there are some things that are too political,
that courts shouldn't decide if they have big policy consequences.
And he talked about the Scalia approach in the American Supreme Court about judges
being perceived to hijack questions that should really be determined by the electorate. Oh, Helen, you keep on asking me about three questions.
Sorry, I know. I therefore have to try and segregate them.
Sorry. Yes, I do. There is a difference between a political question and a policy question.
A political question is one which only politicians should decide, and there are plenty of those, plenty of them.
And generally speaking, in public or until the Human Rights Act and to some extent, EU law.
There was a big distinction between the question of legality,
I don't mean in the technical sense lawfulness on the question of policy and the courts dealing with judicial
review cases were very alive to the fact that their role was not to adjudicate on questions of policy.
But once you have the to some extent EU law,
because questions of proportionality come into EU law and also under the Human Rights Act, that the court.
Is judging whether what a public authority has done is compatible with the convention rights,
the convention rights, some of them draw a try and achieve a balance,
a fair balance between the interests of the individual and the interests of the community or certain interests in the community.
And that can involve one in looking at what would previously been regarded as policy questions.
But that's to give policy a very broad definition and not confuse it with things that only politicians should decide.
One of the things that comes into that is that.
Although in a human rights challenge,
the courts are not bound to accept the balance drawn by the political decision makers, they're not bound to accept it.
Nevertheless, we do take very seriously the greater competence that institutionally and personally that they may have in order to draw that balance.
If you think of the case about the Iranian dissident and the parliamentarians, politicians,
loads of them who wanted her to come to this country so that they could have a discussion with her in the Palace of Westminster,
and the home secretary said, no, I've taken the advice of the Foreign Office or foreign secretary,
and the foreign secretary thinks it will do too much damage to our.
Fragile but essential, I think, with the world's relations with Iran, if we let this woman come to this country.
So no now one could have deep reservations about that.
That balance as to whether it really was a good enough reason to interfere with the freedom of expression,
rights of both the parliamentarians and the Iranian dissident.
But the majority of us were prepared to accept that the government was better able to judge that than we were.
And there are plenty of examples like that. So who's the best judge of this particular issue is one thing.
Whether we have got the jurisdiction to do it is another thing.
Do you think it is just a question of the way that Parliament has chosen to legislate by having a European Communities Act and
a Human Rights Act that put those questions proportionality within the judicial domain that has pulled judges into policy?
Or do you think, as some judgements about Obata comments in some judgements have suggested,
that actually there isn't so very much difference between a context related rationality review and a proportionality review,
disrespectful of, as you say, that the greater institutional competence sometimes of the executive?
I suppose because it could happen we are withdrawing from the EU, a government could repeal the Human Rights Act.
Were that to happen, do you think judges would have much less engagement with policy issues or do you think
they would arise to different routes because the intellectual habits that have arisen.
Oh, well, there you are. If. The Human Rights Act were to be repealed.
The questions that would come before the courts would inevitably be completely different and completely different.
They were before the Human Rights Act. You will remember the days when.
Advocates might introduce human rights arguments into their cases,
but they were always regarded as a last resort and they very rarely did any good because the
judges had to decide the question in accordance with the law they had in front of them.
And there was a great tendency to reassure themselves that the law was completely compatible with the convention in any event,
because a lot of people thought it was until Strassberg told them that it wasn't.
Obviously, the Human Rights Act completely changed the way in which certain issues were.
Looked at because it made it unlawful for a public authority to act in a way which is incompatible with convention rights if that law is repealed.
Well, then that completely changes the nature of the debate.
But if the real question in reality is if the Human Rights Act were repealed, what, if anything, would they put in its place?
And how would that differ from the Human Rights Act? That's the more interesting question.
Of course, we don't know because it's not happened yet. They've been talking about it for a long time, but it hasn't yet happened.
So I'm talking about the perception, at least in some quarters, that judges are activist or engaged in more engaged.
They should be in policy questions. And I think that you didn't think judges were any more activist than they'd ever been.
And I quote Stephen Sedley, again, a judge's judge is not activist asleep.
So that's worse. But if you're there is that criticism.
There was the famous enemies of the people headline and similar ones in other newspapers.
Lots of people get unfairly criticised in the media.
Do you think it matters if you get those criticisms of judges or do you think just can you see it off?
I don't think it's necessary for the judges to see it off. Well, yes.
Now, the judges have to be true to their judicial oaths and carry on regardless of it's it's very important for them to continue to do their job,
whatever the media throw at them.
And I think to their credit, that they do. That's not the same as being insensitive to sensible criticism, of course, reasoned criticism.
That's a very different thing. One must always try and seek to improve of one's performance.
But one of the big worries that there was in some very responsible quarters.
When the Supreme Court was being set up. Was that the role of the Lord Chancellor as a very senior legal figure?
And a senior member of cabinet. Was to defend the rule of law and the independence of the judiciary in cabinet.
Yeah, and I know that Lord Michaelia Cash, Ben,
was very aware of the importance of that role and worried that it would be jeopardised
if the Lord Chancellor were no longer a senior and highly respected legal figure.
And that is why, of course, the Constitutional Reform Act places specific statutory duties on the Lord Chancellor and secretary of
state justice to defend the judiciary and what the independence of the judiciary and the rule of law.
And the regrettable thing about the enemies of the people incident was that the Lord Chancellor the day did not instantly fulfil that task.
And it wouldn't have been difficult. It would not have been difficult. It's a it's a relatively easy script.
I mean, she she said at the end, I suppose, in her own defence, well, this is a freedom of speech issue.
What would you have said if you had been her? Oh, I think it's quite easy.
I would have said we have a free press in this country.
You are free to write and print what you like within the limits of the law.
And you have not transgressed against the law. But it is my job.
As the member of the government who's sworn to uphold the independence of the judiciary and the rule of law, to tell you that you are wrong.
These judges are not enemies of the people.
These judges were doing their job, deciding a case in accordance with the law and in accordance with that judicial oaths.
But if they've got it wrong, the Supreme Court will put them right.
Really easy. Not difficult at all. And if that culture has been lost in and I'm not sure if it has been lost,
because I think that episode actually has led in on subsequent occasions, broadcasters,
including that particular law, chancellor,
to be much more supportive of the judiciary when they have reached conclusions, which not all the newspapers.
Yeah. Yeah, yeah. Um.
Yes, I was going to ask because I think you said serving judges, we may not be their role to defend themselves if if there are unfair attacks on them.
Do you think it's the role of retired judges, the judicial press office?
I mean, do you think this there's a general role for people who are interested in the rule of law to make that point?
Well, I think that people other than judges and by that I mean not only members of the legal profession,
but I do think the leaders of the legal profession have an extremely important role in this.
And generally they are very good at doing that. But the risk is that they will be seen as self-serving.
And so it's important for other people who understand that the importance of the
rule of law and the independence of the judiciary to stand up for the judiciary,
it's difficult for the judges to do it. Yeah, you can't I don't think you can respectably go along and say,
this is what I decided and I give them my judgement and I'm going to expand upon that to convince you that I was right.
I don't think people should do that.
The judgement is the judgement and you shouldn't really try and expand upon it, nor should a press office do anything other than correct errors.
Yeah, and clarify. But one of the things that I think has been very beneficial is the greater accessibility of Supreme Court judgements.
Because and hearings, people could watch the hearing in the enemies of the people case and they could see that
we were not discussing whether or not the result of the referendum should be respected,
whether or not we should leave the European Union. That was not what the debate was about at all.
As you very well know.
So people could see that and a wide audience that was able to realise that there was a serious constitutional mistake that was being debated.
And that was true in the second one as well. So I think that was good and also the way in which we do our judgements with a simple two page summary.
Yes, I was going to say, I mean, that is a that is, I think, a useful judicial role.
And in fact, I did do an event with Lord Thomas,
who was one of the enemies of the people in a discussion of the book of that title by Joshua Rasenberg.
And Joshua puts a question mark on the end, which The Daily Mail didn't.
But he said in retrospect, if they had put out a clearer press release about what they were and were not doing,
and I suppose some of the things that were in the Supreme Court's judgement about what the judgement was not about, it might have helped, but.
Well, it might. But they do not at all.
It might not. Yes. I just have one other sort of institutional question, because attacks on the judges are not a uniquely British phenomenon.
In fact, that quite a worrying and global phenomenon. I'm thinking of Poland and Hungary and various other places.
Do you think there is ever a role for judges in one country to defend judges in another as judges,
or do you think that's just inappropriate or political? Well, I believe that there are various networks of judges, different sorts,
who do seek to put out statements in defence of the independence of the judiciary or the rule of law or whatever in appropriate cases.
So it is a difficult judgement because it's not necessarily going to do any good.
So sometimes it can do some harm.
But to show solidarity with judicial colleagues under threat, under unjustified threat is something that I think associations can do.
It's better if the association does it or the network that if an individual does it.
Yeah, I've got quite a lot of questions. And if people do put questions into the Q&A function, I will try and filter them.
I may not get to them or given that there are large, very large numbers here, but I will try to at least summarise the scope of all of them.
There's one here which is quite important in terms of what we were discussing about the voices of people in courts.
Hayday Nelson asking about legal aid having been withdrawn for so many very vulnerable members of society and in such sectors and asking why,
I would ask, do you think that matters? Or judges can fill the gap when Haley asks, what do you think could be done to solve it?
Or do you think it will be changed in the future? Oh, obviously, that is a serious gap because the withdrawal of all kinds of.
Public funding for all kinds of legal services.
In certain subject areas clearly creates huge problems, not only in court and in fact, not so much in court as early on in the case.
If somebody is having trouble paying their rent or paying their council tax or is in difficulty agreeing arrangements for their children,
what they need is some legal help at an early stage in the problem.
And often a lawyer or somebody who's with legal training can solve the problem without
ever having to get as far as eviction or a battle about children in court or whatever.
And so that seems to me to be the worst thing about it. And if.
Ways can be found of restoring the early help and advice that people need that would reduce
the problem of representation in court because fewer cases would have to come to court,
that would still be a problem of representation in court, but it wouldn't be as acute as it currently is.
My feeling from the review that the Ministry of Justice published last year, early last year,
was that they had got that message, but unfortunately, once public funding has been relinquished.
For a particular area of activity, it's extremely difficult to get it back.
But I think subsequent secretaries of state for justice have realised that a variety of the cuts in the justice sector were not a
good thing and in fact have caused more problems than they have solved and have been struggling to get things back ever since.
And it's really, really difficult.
And in fact, my sympathies not entirely with with them in their efforts to try and retrieve something from what happened,
particularly in the and the last bit in 2012 and.
Now, I'm going to just end as we are an educational institution with a couple of questions about educational things.
So one was asking if you could elaborate a bit more about the link you mentioned
between educational access and enhancing diverse perspectives in the judiciary.
And what do you think we as a university should be doing to try to send people out in a way that does enable them to have the I suppose,
the empathy and the imagination that we were talking about that perhaps the best judiciary creates?
Well, yes, I feel sure that part of the wonderful thing about being in a university, at least in normal times,
is the exposure it gives you to a wide variety of people who are not exactly like oneself.
Despite what I said about being irritated by the the young gentleman with the innate sense of entitlement in Cambridge.
There were plenty of other young gentleman who did not have that sense of entitlement and in fact,
who deeply resented the sense of entitlement that some of the others at.
And one that the great thing about university is the opportunity it gives you to meet a wide variety of people and to,
one hopes, debate with them all sorts of issues of earning interest.
I think that's how you get it. Out of the more diverse your fellow students are, the more you're going to get from that,
as long as you do all have the opportunity of getting together.
And I hope that's still going to be possible in these difficult times.
I fear that this may be one of the casualties of current lockdown situations,
that it's harder to meet a wide variety of your fellow students and get out and about and learn from them.
Yes, well, it is unfortunate. I'm cheering on our colleagues in the vaccine research department across the road, but at least we do have Zoome.
And it has been absolutely wonderful. And Brenda, to hear those perspectives.
There are a lot of questions, some of which I think you would say possibly going to answer in a public forum because they're much too political.
Others, I would have liked to have asked you, but I do think we ought to stick to assume our but I do hope that we will be able
to invite you back as part of our community in real life and before too long.
And here's some more of your perspectives. I'd just like to remind people that next Friday, because we have one of these talks every Friday,
next Friday, we have actually a Mansfield alum, Rashid Dastagir, who is a brand consultant, but also a poet.
And he's going to be writing talking about his book about creativity in the 21st century.
But before that, on Tuesday, if you get in quickly, you may be able to get in to hear another Yorkshiremen or Yorkshiremen.
Lord Nortec is going to be talking about the next 20 years for Western democracy on Tuesday in the Hands lecture.
I've also been asked by the university itself to say that if you enjoyed this Baroness Hale talk,
why not tune in next week on Wednesday at one o'clock for the Romanis lecture, which she is also giving.
So please go and have a look at that. But we do.
I can see we've got a lot of people on this call and our Mansfield Friday talks are a very important way
for us to reach outside the university community to encourage everybody to meet and come in and to think.
And in normal times, we literally invite people in to college.
But at the moment, we invite you to Zoom and our YouTube channel.
But they are free and they are open to the public and they are emblematic to us of how we want to open up sharing issues and debate about the world.
And we are particularly interested at Mansfield in widening access to higher education.
It is in our DNA. So if you want to hear about these talks as they happen every term,
please go to our website and sign up and please encourage your family and friends to as well,
because it's one of the advantages of this silver linings of the Zoome thing.
And if you're interested in attending in future,
the links I think are going up in the chat box now so that you can find the link to our Web page showing how
you can join in or even contribute to us if you are an outsider and feel like it is absolutely not compulsory.
But thank you all very much for coming in and joining and being part of our community and making us who we are today.
And Brenda, thank you very much for that talk and also for being part of our community.
We really value having you as one of us. Well, thank you.
I very much enjoyed it. Thank you. Thank you. Good night.