Lady Hale remembers: how law has changed since the Sixties

This article is based on the rough note made by Paul Magrath of the keynote speech of Baroness Hale of Richmond PSC at the annual conference of the British and Irish Association of Law Librarians (BIALL) on 13 June 2019. If and when the verbatim text is published, we will update with a link.

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Photo by BIALL Photographer via Flickr

Baroness Hale is known for her brooches. Eye-catching and whimsical, they are a gesture of dissent against the monochromatic patriarchy in spite of whom she has made her ascent to the highest judicial office in the land. Today she is wearing a yellow butterfly.

We are in Bournemouth, at the fiftieth annual conference of the British and Irish Association of Law Librarians, and Lady Hale is giving the Willi Steiner Memorial Lecture. It is the conference’s keynote event. The calendar says June but the weather says March, or perhaps that cruellest of months, April. In the main hall of the conference centre there are no windows onto the wet and blustery seaside parade. The plenary sessions have been held in a warm glow of dimmed light, like a basement club, perhaps so that the slide projections which accompany most of the speakers can be better seen. But Lady Hale has no slides. She needs no slides. She stands, centre stage, in a simple dark dress adorned by a yellow butterfly, and holds the packed audience spellbound.

Her subject is the ways in which the law has changed since her undergraduate days at Girton College in the early 1960s when Steiner was the librarian of the Squire Law Library in Cambridge. After a short appreciation of Steiner himself, a refugee from Germany who made Britain his home in the 1930s* (and went on to become a founding member of BIALL), Hale embarks on her main theme.

Five key areas of law are identified as examples of major change.

Judicial Review

The first is the exponential growth of judicial review, whose “renaissance” began with the House of Lords’ decision in Ridge v Baldwin [1964] AC 40, and continued with Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

But it was really only after the change in procedure wrought in 1977 by Order 53 of the Rules of the Supreme Court [as they then were, the precursors of the CPR] that judicial review was able to liberate itself from a reliance on 17th century prerogative writs of certiorari, mandamus, prohibition etc. No other change in procedure has had such effect. Thereafter judicial review applications mushroomed. In 1974 there were 160 applications for leave; in 1998 more than 4,500; by 2005 some 10,500. Of those, more than half were asylum and immigration cases.

But the most high profile judicial review case that the Supreme Court has ever had went to the very heart of the 17th century constitutional principle on which the doctrine was founded: that the king cannot change the law. (See R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin); affd [2017] UKSC 5; [2018] AC 61.)

You might have thought the press response to the decision of the High Court would have been, not “enemies of the people” but “in favour of the people”, or “champions of the people” (as the dissenters in the Supreme Court were called). Although the Supreme Court justices are not in Hale’s view predictable as panels, they decided to sit all together in the Miller case and so avoid any speculation of bias. The proceedings were broadcast for anyone to watch. One commentator complained that they proceeded “at a snail’s pace” — a remark which another commentator thought “unfair to snails”. (Does Lady Hale have a snail brooch, one wonders?)

European Union

EU law, or Common Market law as it was previously known, introduced a new legal order, having direct effect, which could be relied upon to enforce the rights thereby conferred, for example by an injunction. This was demonstrated most potently in the Factortame litigation. (See R v Secretary of State for Transport, Ex p Factortame Ltd [1990] 2 AC 85.)

This was further explained in the so-called Metric Martyrs case, Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151, in which Laws LJ identified the European Communities Act 1972 as what he called a “constitutional statute”, incapable of being overriding by implication in a later statute.

But what happens when two constitutional statutes come into conflict? That was the prospect raised in the HS2 case, R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324, though ultimately not requiring to be resolved.

Human Rights

The European Convention on Human Rights (ECHR) was not part of the curriculum at Cambridge when Lady Hale was reading law. It was only in 1966 that the right to petition the European Court of Human Rights was introduced. Thereafter the rights became less abstract, with a raft of real cases involving real people upsetting the conventional belief that UK law was already compliant. The ECHR began to be seen as a “living instrument”.

The Human Rights Act 1998 had the effect intended: that of bringing the rights home. If an applicant would have won in Strasbourg, then (with some exceptions) they should win in the Supreme Court of the UK. The court generally tries to interpret its way out of a problem, but if cannot, then it has to make a declaration of incompatibility.

But the ECHR is not the only international convention to which the UK is a party, and to whose terms the courts must pay regard. However, while the rights under those conventions are not directly enforceable, it is now more common for the courts to refer to them. For example, we now routinely expect compliance with the UN Convention on the Rights of the Child. The Rights of Women Convention** is not so well enforced, however.

The judgments in which she most often dissents, Lady Hale reveals, tend to be those that involve the rights of women.

Equality

Equality is another area of big change since the early 1960s, when discrimination and the pay gap went largely unchallenged. In some cases, the restrictions seemed quite absurd, e.g. women not being allowed mortgages without a male guarantor.

The 1970s brought in the Equal Pay Act 1970 and then the Sex Discrimination Act 1975, but it was the Equality Act 2010 that gave the UK a gold-plated law that made equality comprehensive.

Article 14 of the ECHR provided equality in the enjoyment of other Convention rights.

Both have been used to mount successful challenges to austerity measures (such as the bedroom tax).

Devolution

Devolution has given the Supreme Court a different sort of role, in determining ‘devolution issues’, as well as hearing normal appeals from the other UK jurisdictions.

The court also has jurisdiction to scrutinise bills referred to it from the devolved institutions, before they get the royal assent.

The future

Inevitably, there is a question about Brexit. Depending on how it is implemented, one of the biggest challenges facing the law in the near future will clearly be determining the primacy of UK law and how to separate it from the various EU legislation we have had since the 70s.

Another concerns transparency about the court itself. We do our best, says Hale, to explain the role of the Supreme Court and the work we do. As well as publishing conventional judgments, we publish a two-page summary. Judgment is also delivered as a piece to camera, by one of the justices, explaining the case in under five minutes using language anyone can understand. These as well as the live feed of hearings are all on YouTube. But Hale agrees it would be useful to provide access to the papers in the case, without which it is hard to know what is going on even if you can follow it on the live relay or in person. (Providing such access — which was done in the Miller case — for all appeals would indeed be a welcome development.)

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Notes

*For more about the dedicatee, see Jules Winterton, In Celebration of Willi Steiner

** Presumably the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (1979)

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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