Lady Hale, the retired president of the supreme court, became a household name the day she wore a £12 brooch in the shape of a spider. This was in 2019, when she declared, to gasps from onlookers, that the prime minister’s decision to prorogue parliament for five weeks to stop MPs from blocking a no-deal Brexit was unlawful.
Her first book, Spider Woman, covered her rise to the supreme court (as a self-proclaimed “swot” and “goody goody”) and the sexism she overcame on the way. With the Law on Our Side focuses on how the law works – “for everyone”.
Hale’s new book is informative and enjoyable, and I share her pride in our legal system. But Banksy’s hostile image of the judiciary – a protester being attacked by a gavel-wielding judge very much not on the side of the people – recently daubed on the side of the Royal Courts of Justice, suggests that admiration for the system can’t be assumed. These days, our courts and judges are under fire – from multiple directions. From the political right, it is suggested that judges are preventing elected representatives (MPs) from protecting law-abiding citizens, whether by permitting hotels to house dangerous asylum seekers or blocking the deportation of foreign national criminals. Meanwhile, the left blames the justice system for repressing protest in support of Palestine, for example, or Just Stop Oil.
The legitimacy of the legal system in England, Wales and Northern Ireland relies on maintaining a difficult balance. Justice must be delivered openly, but ideally without a spotlight being shone on individual judges. This is becoming increasingly hard to maintain.
Hale has always been an interventionist judge, ready to use – even develop – the law to protect the vulnerable and disadvantaged. Not all judges share this approach. Lord Sumption, another retired supreme court judge who has become a legal commentator, maintains that judge-made law is hollowing out political decision-making.
While Hale does not explicitly address the different approaches, she argues that our legal system is based on judge-made law (the common law). She describes a time when the king’s judges toured the country, devising and developing the laws of contract, tort and “blameworthiness”, and administering justice. Only since the 19th century has parliament passed statutes, laying down detailed rules that apply to all.
The role of the modern court is to state the law, and interpret and apply it in real situations. And to do this, Hale says, they “develop old principles or devise new ones to cope with new situations”. Hale gives an example from the (judge-made) law of nuisance – wrongful interference with a person’s rights over their land. In 2016, the Tate Modern art gallery built a viewing gallery giving 360-degree views of the London skyline but also into the living area of adjacent (and expensive) flats, built with walls made entirely of glass. The supreme court judges agreed that a “visual intrusion” could be an actionable nuisance, but they were divided over whether in this case it was.
Hale has always been an interventionist judge, ready to use the law to protect the vulnerable and disadvantaged
Hale points out there is rarely a single right answer. The lower courts may disagree with the supreme court. Supreme court judges may disagree with each other. Balancing competing rights and principles isn’t easy. In each of her case studies, Hale rightly challenges the reader to engage. She sets out the issues and asks, “What do you think?” before explaining what the court decided.
More controversially, in her survey of cases, Hale applauds the operation of the Human Rights Act (HRA), which brought the European Convention on Human Rights (ECHR) into Britain’s domestic law. The Metropolitan police received numerous leads about the black-taxi driver rapist John Worboys, which they failed to properly follow up. A specialist mental-health facility granted leave to a suicidal young woman, who promptly took her life. In both cases the courts referred to the HRA to establish positive obligations on the state to prevent foreseeable harm – duties which it had breached.
This approach is hard to criticise: if the state provides a service negligently, it will have to compensate the victim. But there are problems. The state appears to have run out of funds. Parents go to a tribunal to secure special educational provision for their child, but the local authority is bankrupt. Demand hugely outstrips provision. Repeatedly, the courts enhance the rights of a group but the state is unable to deliver. This creates anger and disillusion. Angry people (and politicians who exploit their grievances) do not carefully analyse which part of the system has let them down. They turn against it all, as Banksy’s mural shows.
There is much to be said for intervening to protect the disadvantaged and to “level the playing field”. But as Hale herself asks: “How far is it necessary to go?” There is no principled answer to this. Sumption would say we have gone too far.
An example cited by Hale of the court upholding fundamental rights involved the government’s decision to introduce fees for claimants to bring cases to employment tribunals. Seen to impede access to justice, the fees were later ruled unlawful. Many rights are considered fundamental, and realising them often involves allocating resources. In straitened times, selecting priorities for funding becomes political and contested. The more judges intervene in areas perceived to be “political”, the more they will be scrutinised personally. This is a heavy price to pay.
Many now view the polarised US legal system – once considered a lodestar of democracy – as an example of what to avoid. There, senior judges’ political allegiances are often well known and can form the basis for their appointment. Unlike the US supreme court, ours can’t strike down acts of parliament. Parliament is the primary lawmaker and parliamentary sovereignty is the guiding principle of our constitution. That means, Hale observes, that parliament “can in theory do what it likes”. However, she adds, “there are some things which it really shouldn’t do”.
‘Her personal contribution has been extraordinary’: Lady Hale; main picture: Banksy’s short-lived artwork outside the Royal Courts of Justice.
Enacting the 2024 Safety of Rwanda (Asylum and Immigration) Act, was one of those things. The supreme court had ruled that Rwanda was not currently a safe destination for asylum seekers and government policy to send them there was accordingly unlawful. The act effectively ignored this ruling by deeming Rwanda safe and ousting the jurisdiction of the courts to review future decisions. As Hale puts it, this “offends against every principle of the constitution except that parliament can make any law it chooses”. The direction of today’s political debates suggests many more of these kinds of battles.
With the Law on Our Side considers how we can make the law “work better”. Some of Hale’s suggested reforms would create improvements and should be seriously considered – but they are unlikely to be radical enough to rescue a system in meltdown, struggling with an unsustainable backlog of cases.
Hale recognises the failures of the legal system: she describes crumbling infrastructure, the shuttered canteens in courts around the land, the unacceptable delays. At a time when the mistaken release of convicted offenders is in the news, few will be surprised to read about another service that has been recklessly starved of funds. Rebuilding it requires more than money. We need new ways of delivering justice.
Hale seems oddly lukewarm about mediation – an alternative form of dispute resolution, which doesn’t involve going to court. It is confidential, so Hale is right to say that it is the “reverse of open justice”. Resolution results from private discussion. But is that so bad? If a (tax payer-funded) judge presides, the public has a right to know how justice was delivered (with some exceptions). But provided there isn’t a significant disparity in power, shouldn’t private parties be encouraged to resolve their disputes themselves? Litigation is hugely costly to the parties and to the state, and should be truly a last resort. Other ideas are being developed. The Law Society has suggested an AI tool to provide people with no-cost basic legal advice, like NHS 111.
Much has changed for the better over the course of Hale’s career. Greater gender equality is one improvement: as she observed on a recent visit to the Old Bailey, women are now “part of the furniture”. Her personal contribution has been extraordinary. But now, it seems we face a backlash. At this perilous moment when the rule of law is being contested, the system needs to adapt.
The Hale era of robust judicial intervention is over. Under the stewardship of her successor, Lord Reed, the supreme court is more attentive to the separation of powers and “interferes” with government decision-making less. But the legal system remains under threat – from a chronic lack of investment and ill-informed attacks on judges.
With the Law on Our Side is a compelling read that should allow people to understand and appreciate the legal system better. The UK’s commitment to the rule of law is globally admired, but a new generation of public spirited, fresh-thinking champions is needed to defend it. Urgently.
Marina Wheeler KC is a barrister and the author of A More Perfect Union: The Europe We Need
With the Law on Our Side: How the Law Works for Everyone and How We Can Make It Work Better by Lady Hale is published by Bodley Head (£25). Order a copy from The Observer Shop for £22.50. Delivery charges may apply
Banksy mural photographed by Justin Tallis/AFP via Getty Images; Lady Hale portrait by Sophia Evans for The Observer