Baroness Hale still ’embarrassed’ to be only diversity Supreme Court Justice
16 September 2010
The UK Supreme Court Blog has posted an exclusive interview with Baroness Hale, the Supreme Court’s only female judge. The interview is worth reading in full but I would like to highlight a few of her comments which are relevant to human rights.
By way of background, Baroness Brenda Hale is the first and only woman who sits in the UK’s highest appeal court. She came to the bench after a career in academia and a post at the Law Commission. As she admits in the interview, he areas of interest – such as family law, human rights and equality law – are quite different from those of the other justices who mostly come from a commercial law background.
She begins the interview by picking out the JFS case, in which a Jewish school’s admission policy was found to breach race relations law, as probably the highlight of the new court’s first year.
On the level and quality of public discussions of Supreme Court decisions, she reports that the press and the media have not taken much more interest in their work since the court’s high-profile move across Parliament Square, Despite recordings of hearings being available to the press, “they don’t often ask”. Perhaps barristers are not as engaging as they thought they were. However, “the difference has been in the general public’s interest rather than the media’s”. This will be considered a success, given the legal obligation upon the court to make itself “accessible, fair and efficient”.
In particular, she praises the press summaries which are posted on the Supreme Court website alongside judgments which provide “an accurate summary of what the issue in the case was, what decision was made and the reasons for it”, which, over time “ought to improve people’s understanding of what the Supreme Court is doing”. I made this point in a recent Guardian article, and argued that these invaluable summaries should be provided by the Court of Appeal and the High Court too. In this regard, as well as with the new website which Lady Hale also praises, the Supreme Court has set a great example of access to justice in action.
Still on the theme of access to justice, Baroness Hale is of the view that there is still not enough judicial diversity. She admits she is “quite embarrassed to be the only Justice to tick a lot of the diversity boxes”. On attracting more women, the “barrier is very much still within the legal profession itself”.
The diversity of the Supreme Court is important for reasons of equality, but it also has an effect on the judgments handed down. A sensitive issue which arises regularly in the United States is whether it matters which judge sits on which case. In principle, judges should be impartial and objective enough to prevent their personal opinions infecting their judicial reasoning. But a higher-profile Supreme Court has put its judges, and their political opinions, in the spotlight. On this, Baroness Hale says that the issue “begs all sorts of questions about how predictable an individual Justice’s decision-making is or isn’t. Some of us hope that we are not so predictable, but others may see us differently.” Baroness Hale herself is often seen to be on the political left of the court. The issue has been addressed by using larger judicial panels if a case “comes with a great big banner saying “this is of constitutional importance“”. For example, the upcoming appeal relating to MP expenses and parliamentary privilege will have a panel of 9 rather than the usual 5.
On the separation of powers, there is still a lot to be done to ensure that the Supreme Court is, and is seen to be, independent of the government. This extends from how the court is funded to who decides what food is in the cafe (at the moment, the Ministry of Justice, which is part of the government). At least, however, this absolves the court from responsibility for the lamentable use of the Italian language in its cafe menu.
The interview ends with what Lady Hale considers to be the frontiers of the law for the next 10 to 15 years. She makes interesting points on the “mismatch” between the European Community law and human rights approaches to equality. The human rights approach is “more flexible and less technical on comparability but also has a more flexible justification defence”, which leads to better results, as “if you don’t allow a degree of flexibility, it leads to a tendency to deny that discrimination has taken place at all”.
Interestingly, Baroness Hale also hints that socio-economic and so-called positive rights (see our recent post) may be coming soon – she cites a recent case which appears to institute positive obligation on the state to provide housing to asylum seekers – but that they may fall at the Strasbourg hurdle.
So, another refreshing and heartening insight into the thoughts of our only female Supreme Court Justice. Long may she remain at the sharp end of the UK judicial system, and perhaps before she retires she will even be joined by another female justice.
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Pity Lady Hale was not asked to address the increasingly important issue of the Supreme Court making law by interpreting treaties (Human Rights et al.) which Parliament cannot practicably amend. Power without responsibility?
The UK Supreme Court, with one lady in twelve, is not doing particularly well on gender-balance, as you rightly point out. The Court might take a leaf from a “higher” court, the European Court of Human Rights in Strasbourg: of its 47 judges, 18 are currently women, a figure approaching nearly 40 per cent!
This has been mainly due to a remarkably progressive policy of mild “positive discrimination” followed for some years now by the body which elects the judges, the Parliamentary Assembly of the Council of Europe. The parliamentarians have insisted that at least one of the three candidates put forward for judge by any participating government must be from “the under-represented sex”. All-male lists have been declined, obliging states to make greater efforts to find qualified women candidates.
Lady Hale is quite right that a more diverse bench is a better bench, and a fairer one: the UK Supreme Court increasingly deals with questions of equality, and its rulings directly affect millions of women. The selection procedures in Parliament Square are rather more opaque than in Strasbourg, but hopefully the next time a vacancy comes up, the President and his two fellow appointers will listen closely to what she is saying – if only to avoid future embarrassment.
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