Law and Order: How to Fix Britain's Courts (Lady Hale)

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0:42BBC Sounds. Music, radio, podcasts. Hello, this is Radical with Amol Rajan. Conversations about tomorrow from today, where I explore the global trends that are reshaping our world. And I also go in search of the radical ideas that can help you win the future. And then suddenly outside the entrance to my father's study, there was an ambulance. We had seen that our whole family security had been wiped out in 48 hours. I've got one thing about the family justice system that I think really does need to be reformed. In this episode, then, a conversation with the judge Brenda Hale, Lady Hale, who, as president of the UK Supreme Court, said this.

1:29The Prime Minister's advice to Her Majesty was unlawful, void and of no effect. Parliament has not been prorogued. Well, that Prime Minister was, of course, Boris Johnson. Look, one of the missions of Radical is to really do a deep dive into the life and thought of genuine pioneers. And pioneers are people who've done something that no one else has. They've done something for the first time. And I've met and interviewed a lot of very cool people, a lot of very powerful and influential people. I can say hand on heart I don't think I've ever met anyone who has racked up as many firsts as Brenda Marjorie Hale.

2:06Right, bear with me on this because there's quite a lot to get through and this is the edited version. Here we go. She was the first person from her grammar school in Yorkshire to go to Cambridge. She got the top first in her year at Cambridge. She was the youngest person and the first woman to be appointed to the Law Commission. She was the first woman, first woman ever, to be appointed as a Law Lord. She was the first female justice of the Supreme Court, and then she was the first female president of the Supreme Court, which made her the most senior judge in this country. And it's the judicial system that she thinks needs help.

2:40Look, she's got some pretty strong opinions about a range of subjects from assisted dying, which she favours, to that Daily Mail front page, which said enemies of the people, which I think it's fair to say she's not a huge fan of. But she's also got, and that's why she's here, some pretty radical ideas about how to fix the law in Britain.

3:11Brenda, how are you? I believe I'm well, thank you very much, Amal. How are you? You believe you're well. What a legally, what a loyally answer. So you believe you well because you may not have all the information necessary to be able to correctly ascertain your health. This is true. You seem extremely well to me. Before we talk about the law, can we talk a little bit about you? I know you probably don't like it too much, but can we talk a little bit about you and your amazing life? Okay. I've got quite a romantic view of the post-war era. Don't roll your eyes at me. We've only just begun. So you were born about nine months before the end of the Second World War and same year as my dear dad, actually.

3:44Do you remember growing up in Yorkshire that sense of being part of a kind of country that was rebuilding after the war? Oh, very much so. The village had an airfield which had been used by bomber command for some time. There were lots of decommissioned airfields round about. There was quite a lot of bomb damage. There was an estate in the village of prefabs that had been built to house people who'd been bombed out of their homes in Teesside. so one was very conscious of the war. I had no idea that your dear dad died when you were very young. That must have been extraordinarily traumatic. Well, I was 13, which is quite young.

4:23My younger sister was 12. What do you remember of that day? Oh, well, what I remember is that we were out playing in the grounds of the school, which is what we did, and I think we were walking along a quite high wall, enjoying ourselves, And then suddenly outside the entrance to my father's study, there was an ambulance and somebody was taken into the ambulance on a stretcher. So we thought we'd better get down from the wall and find out what was going on. And we discovered that it was our father who'd been taken to hospital. And then two days later, we were told by our mother that he had died.

5:03So it was a very sudden event. He was 49. It was a great shock. And he served in the war, presumably? No, he hadn't served in the war. He had been in a reserved occupation. And so he'd been a bit too old at the beginning of the war to serve in the war. And then he became too valuable for the school that he was operating in. So he didn't serve in the war. But he'd been in teaching all his life. That's what he had done. I mean, I promise I'm not going to try and sit and be an amateur Freudian for the time we've got. But I mean, how did that affect you? I mean, there's an extraordinary connection between people who go on to be successful and often losing a parent young.

5:44I don't know if it's a consciousness that time is finite and early confrontation with mortality, a sense of existential dread. I mean, if you look back on it now, it's a while ago. How do you feel that shaped you? Well, I'm fairly sure that both my younger sister and I took the message from it that you must be self-sufficient. You must be independent. You must be educated. you must have qualifications, you must have a profession or a career or employability of some sort. Because we had seen that our whole family security had been wiped out in 48 hours. Fortunately, our mother did have teaching qualifications.

6:26I mean, she was more devastated than anybody. That's extraordinarily hard for her. Oh, it was, yes. Well, my elder sister was at university. She was on the whole independent, but she got these two stroppy teenagers. But she picked herself up and got herself a job as headmistress of the local primary school, which meant that we could stay in the same village with the same friends at the same school. So I think that taught us both a lesson. And it's interesting that both of us had successful careers, whereas our elder sister could have had a successful career. and she did many successful things and she worked very hard, but basically she was for a lot of her life a wife and a mother and a teacher as well.

7:09Did you have dreams of, you know, big dreams of going to London, of escaping rural Yorkshire and that high wall, of making some transition to a new world? No, certainly not dreams of going to London, dreams of going to Oxford or Cambridge. Which was not something that many girls, let alone many girls at your school did? No, I was the first one to go to Cambridge. From your entire school? Yes, it was a tiny school, 160 girls. But there had been three, I think, who'd been to Oxford. But the family ambition was that all three of the daughters should go to university if they could, which was a great ambition to have when only 2.5 % of girls in that age group went to university.

7:55And if possible, Oxford or Cambridge, but other universities were also fine. My two sisters went to Nottingham and had a great time there, did very well there. I was fortunate enough to go to Cambridge. When did you work out you wanted to be a lawyer? Now, the way I tell this story is not necessarily accurate. You do understand this. Well, hang on a second. It would be useful to have an accurate account of it. Well, I'll tell you the way I tell it and then I'll tell you what the accurate thing is. I say that I decided to become a lawyer when my headmistress told me that I wasn't clever enough to be a historian.

8:27You see, my favourite subject at school was history, especially British political history, and I'll come back to that. And she was very keen to put me in for Oxford and Cambridge, which you could do in those days. You could apply to both. But she said to me, Brenda, I don't think you're a natural historian. Is there something else that we could put you in for? And that's when I said, well, what about law? And the reason for that was not that I'd love Perry Mason and all the courtroom dramas and anything like that. It's because I had been fascinated by the history of the 17th century. Civil War.

9:1017th century, rebellion, restoration, revolution. They packed a lot into the 17th century. We did. And there were all those wonderful stories of the people who had stood up to the king, the judges who had stood up to the king, the litigants who'd stood up to the king. And in the end, we got the constitutional settlement that we now have. It was an incredibly important century, which most people know nothing about. So you were a total romantic for the law. You believed in this idea of lawyers as powerful people that could stand up for power or stand up to power, I should say. I don't regard that as a romantic idea.

9:50I regard that as a fundamental idea, a constitutional idea, in the sense of it constitutes our society. So that's the inaccurate version of the story. No, that's both the accurate and the inaccurate. What was the inaccuracy? The inaccurate one was they had Mr. Singh, I wasn't clever enough to read history. The accurate one was I don't think you're a natural historian. It's interesting how many people have gone on to successful careers, feel that they were shaped by being young or youthful in the 1960s. When you think back to that decade, which gets a bad rep, and a good rep, you know, liberalising time, Roy Jenkins and so forth, was it a time of optimism?

10:27Was it a time of kind of great hope where the zeitgeist was essentially optimistic in a way that perhaps the zeitgeist today is a little bit more anxious? Yes, I think it was optimistic. It was probably still slightly complacent. You know, I think I only began to wake up to the injustice of there being only three women's colleges in Cambridge, of there having been half the grammar school places for girls in North Yorkshire that there were for boys, actually less than half. All of those sorts of things. We were taught family law in our final year by a very wonderfully kind but very otherworldly bachelor who used to say at the beginning of his lectures, well, what I may lack in experience I make up for in objectivity.

11:21He wasn't objective at all. He told his class of his three women that he supervised in the subject, well, now you know your rights, you'd better forget them after tripos, after the exams. The implication being that you wouldn't be a good wife and mother if you knew your rights. In fact, our rights then in the 60s were very limited. family law was revolutionised in the early 70s as a result of the recognition of its injustice during the 1960s. So yes, we were aware of all sorts of things that were becoming recognised in the 1960s, including certain injustices in both employment law and family law, land on tenet, all of those subjects that matter a lot to ordinary people.

12:13You spent decades in the family courts. You've shaped their character as much as anyone. Can you just explain to us what the family courts are? Well, the family courts are there to deal with problems that arise usually when families are breaking up. So husband and wife are separating or divorcing. Mother and father are separating or there has been abuse of some sort within the family. sometimes there's been child abuse within the family and so the local children's services have to intervene to protect the child from that abuse and so part of it is what we call care proceedings which are there to decide how the child should be protected in the future.

13:00But most of it is what should the arrangements be when a family breaks up? Where should the children live? With whom should the children be living? How much should they see of each parent? What are they all going to live on? How are we going to sort out the finances in a fair and sensible way? So the thing about what the family courts do is that they're sorting out the future. They're not punishing the past. They're not recompensing harm done in the past, although that harm may be relevant to what the best future solution is. But it's basically trying to plan the life of these people for the future and make the best of what is usually quite a bad job.

13:44Yeah, often we talk about kids. What's been going wrong in the family courts? Well, I'd say lots goes right. Sure. Let's imagine that most of the cases that come to the family court reach a sensible solution in a sensible way. But obviously we take the view, apart from childcare proceedings, we take the view that it's much better if the people can sort it out for themselves. If they can go to a lawyer who can say, look, this is what, if you go to court, this is what the court will be interested in. if you're worried about the arrangements of the children the court is going to say what's going to be best for the children in the future and they're going to ask well how do the children feel what do the children think about them which of you is best at looking after the children in this way and the other what about change for the children change is not usually a good thing that's what we call a checklist of factors and people can be said this is what the court would be interested in so I'm not interested in throwing mud at your former partner I'm just interested in these things.

14:48What have you got to say about it? And then having heard that, they will say, well, look, I think this is likely to be a sensible solution. Let me get on to the other side and see what they think. And usually a deal is done. So that's it mostly going right. Yeah. But there are some things that go wrong and those things often have, well, for the individuals affected, they're very outsized implications, particularly for kids. Given your caveat, which I totally accept that mostly heroically things go right, what are some of the things that are going wrong and how would you reform them? Well, I've got one thing about the family justice system that I think really does need to be reformed.

15:31But before I get on to that, I will get on to that in a moment. But I just wanted to say that one of the problems of the family justice system was the withdrawal of public funding for legal services. in most disputes between husbands and wives, fathers and mothers and so on, which of course has led to some people not being able to have legal services and therefore having to go to court when they wouldn't have gone to court if they'd had a lawyer to help them. Is this the same as the cuts to legal aid? Exactly, yes. Public funding. Public funding. What has been the consequence of the cuts to legal aid?

16:10Well, the consequence in family law has been that fewer cases are getting sorted out privately between the parties with the help of their lawyers. More cases are therefore going to court and therefore taking up court time. And money. And also in a situation where possibly one of the parties can afford a lawyer and the other party can't. And that makes for all sorts of difficulties. I can imagine there are some people who are going to listen to this who are in that situation right now, perhaps going through a divorce and they'll feel so, I mean, they'll feel very heard. But they'll be so angry that the fact that they've got into a situation where the partner, who knows the circumstances in which they split up, but the partner may be able to afford a lawyer and they can't infuriate them.

16:55And that something about the cuts to legal aid is people feel very viscerally about it because it's that feeling that powerless people are trampled on by the law. Yes, yes. And it was a problem because it took away public funding from every aspect of those sorts of case. And as I was saying, the important aspect basically is basic legal information and basic help, you know, picking up a phone or writing a letter, writing an email or whatever. So that's one thing that has made problems for the family justice system. But my other thing is that for reasons which are historical, but it's quite hard to put your finger on, what we've got into is a situation where if a family breaks up, there could be three or four different sets of proceedings to sort out the arrangements.

17:51not just one proceeding where everything can get sorted out at once but if they're married there's the divorce well that's relatively straightforward that can be done online it never goes to court it doesn't have to well it never goes to a hearing that's quite simple then there's the arrangements for the children that's a set of proceedings then there's the arrangements for the property and finance another set of proceedings and then there's any protection that might be needed against abuse or harassment or whatever, another set of proceedings. And then there's child support, which is organised through the child support agency, which is separate.

18:28But in a court, there could be four separate sets of proceedings. So that's four application forms, four respondents, four sets of witness statements, four lots of, and so on. And I think that's completely unnecessary in most cases. And also the efforts that the court make to get people to agree things are separate and done separately. So that's not how everyday life is. Most people, if they're separating, all three of those things are going to be in their minds. So what would a better system look like? It would have a single application form, a single set of witness statements. It would then have some quite serious triage from the court to say, well, what can be sorted out and what needs to go further and get more information so if there has to be a trial and a single way of trying to sort everything out together.

19:25Also this causes delays during which time more bad behaviour can continue. So for instance if you had a father who's, this is just a random example, if you had a father or mother who's abusive or there's a concern about molestation or some nasty impact on the child, as this process is going on before decisions are made, that can continue, which is both intrinsically bad, but also could harm your chances of getting the right outcome for these issues. I think it can create frustrations. I think quite a lot of the small-scale harassment that happens when a couple split up, one party emailing and emailing and emailing or phoning and phoning and phoning or coming to the street and standing outside has to do with disagreements about the arrangements of seeing the children.

20:19And yet those are two separate sets of proceedings. In broad terms, do you think that for the most part, everyday people, ordinary people in this country, really understand how the judicial system works? Well, I don't want to be dismissive of ordinary people. I don't know, but my feeling is that people have very limited understanding of what the justice system is and how important it is for everybody. There's a tendency to think it's the criminal justice system and most people will say to themselves, well, I'm never going to commit a crime so I'm not going to be the subject of the criminal justice system and I very much hope I'm not going to be the victim of a crime so I hope I'll have nothing to do with it.

21:03But of course I have quite strong views about what it should be doing and how it should be doing it. And of course I love the courtroom drama and the stories and all the crime. stories and so on. So I think that's how most people probably think of the justice system. Whereas most of the justice system is there in a sense not to be used, but it's important that it's there. It's the civil justice system and the family justice system and the tribunal system that deals with one's relationship with the welfare state, basically, and some other things. And it matters on an everyday basis to everybody.

21:40You know, if you go into a shop and you buy something and it's defective and you take it back, it's because the justice system gives you a remedy if the shopkeeper doesn't do what they should. If you're a big commercial businessman and you make a deal and it doesn't work out, you'll get a remedy because the justice system is there to enforce the remedy if it isn't agreed. And it will normally be agreed. But it's incredibly important that there are those rules, those systems available to support everyday life, everyday commercial life. If you drive a car and you have an accident, again, the justice system is there to sort out what the consequences of that are.

22:21But it's all also about our duties and our responsibilities as much as our rights, isn't it? Absolutely. Your duty is to drive carefully. Your right is to compensation if you're injured because somebody else isn't driving carefully. They're mirror. They're usually mirror images. What do you think we need to do to... I totally take your point. I understand we don't want to cast general aspersions. But if there is a sort of lack of appreciation, lack of understanding amongst many of our fellow citizens about this system, in all of its complexity and utility. What should we do about it? Well, I think it would be a very good idea if in primary schools there was an introduction to how we are governed.

23:05The constitution. Yeah, but I would probably say how we are governed because the constitution sounds like a difficult thing, and it isn't difficult, so that everybody knew this is what parliament is, this is what Parliament does, this is what the government is, which is not the same as Parliament, and this is what the government does, and this is what the justice system is, and this is what the justice system does. And it can be done in a very simple, easy way. And in most countries in the world, it is. People have an understanding of the basics of their constitution from quite an early age. And I would love us to do that.

23:42And I'd then like it to be reinforced, obviously, in secondary school with more concrete examples and case studies about what the law is and does and what parliament is and does and so on. And of course, I have just written a book which is aimed at the general reader to try and explain to general readers, not lawyers and intending lawyers, because there are plenty of books for them, but to people who have no idea of going into the law, but would like to know a little bit more about the justice system, the law and how laws are made. What's the book called? It's called With Law on Our Side. Why did you feel it was necessary to write that book after 50, nearly 60 years, if I may say?

24:25Easily, easily 60 years. Come on. I mean, after that 60 years, do you feel there's been a sort of decline in understanding? No, I think there is a basic lack of understanding. But I think the idea of the universality of the justice system, how it's important for everybody and how it can do things for you as well as to you is not well understood. Isn't it also a way of giving power to people who are otherwise powerless? Of course it is. Of course it is. There is a big problem in the justice system at the moment of access to justice when you need it. I've already made the point that some of the point about the justice system is that you shouldn't need it.

25:07It's there people do as they should do and they often do do. They usually do do as they should do. Because there's something in it for both sides. There's a reciprocity. But it is there if you need it. And this sense that it's there if you need it is really important. But, of course, if you feel you need to go to a lawyer and you can't afford a lawyer, or a lawyer is going to be difficult for you to get to, or you feel you need to go to court, but you can't get to a court because the courts are all being closed, so they're miles and miles away, et cetera, et cetera. So there is a problem of access to justice.

25:41Right. Just give people some numbers. because I want them to learn some useful information as well as think hard when they listen to this or watch us. Between 2010 and July 2024, the number of magistrates' courts that have closed in London, 19, Midlands, 30, North East, 19, North West, 22, South East, 32, South West, 22, Wales, 21. Talk about hundreds of courts closing. Forgive me, what actually happens when those courts close? Where does that caseload go and can it be absorbed? Well, it has to go to the other courts and to some extent it can be absorbed. But my worry is that a lot of cases don't happen because, I mean, if something happens up the top of Swaledale, whether it's a theft or whether it's a small violence case or a criminal damage case, the sort of thing that magistrates deal with, are you going to bother to report it to the police?

26:39Are you going to bother to get them to get the Crown Prosecution Service to prosecute it if it's not something the police can prosecute? Are you going to want to go all the way if it's contested to the nearest miles and miles away court? So I suspect there are quite a lot of cases that simply don't get broad. And that's partly because of police practices and partly because of ordinary individuals and their willingness to engage with the justice system. But if one of the cases for the law is it's a way of giving power to people who otherwise wouldn't have power, these court closures and these petty crimes, and by the way, petty crimes affect people from the poorest background the most, and petty crimes destroy lives.

27:25Yes, petty is an awful word, isn't it? It's a dreadful word, because those so-called anti-social behaviour, whatever you want to call them, they cause such damage to the psychology of people's communities. if those things aren't reaching court if they're going unreported if there's no expectation that the police will act on them this is a sort of unweaving of the fabric of society isn't it this is a gradual erosion of our capacity to live well with each other isn't it well it can be one rather hopes it isn't in the sense that community spirit and general good neighbourliness and so on will fill some of the gaps one hopes But yes, I think small things in the law are just as important as what we look at as the big things.

28:08Just as one's entitlement to benefits is just as important as one's entitlement to thousands and thousands of pounds of compensation if you're injured. These things that are regarded as quite small scale are actually not small beer at all. They're rather important. Talk a bit about power. To what extent is the rule of law a protection or even the best protection against authoritarianism? Well, it's an essential protection. It shouldn't be the only one. The main protection against authoritarianism should be democracy and democracy working. How worried are you by what some people see as an authoritarian turn that undermines the rule of law, particularly in Western democracies?