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Thursday, September 16, 2010

MoJ accused of monitoring Supreme Court emails

MoJ accused of monitoring Supreme Court emails

Dan Tench and Laura Coogan
Last updated September 16 2010 12:01AM
The Times (£)

It is almost a year since the UK Supreme Court came into being — a separate highest court of appeal that was no longer part of the House of Lords and the legislature. Would it trigger a seachange in approach by the new justices? Would they flex their muscles in their refurbished £60 million building in Parliament Square and become bolder — moving into new sensitive areas of policy?

The only woman justice among the 12, Baroness Hale of Richmond — or “Ms Diversity” as she describes herself — has given her thoughts on the court’s first year, her “irritations” and her hopes for further reform.

She concludes that the court has not been as much in the public eye as was expected, that more must be done to increase public understanding of its work and also to improve the diversity of its judges. On the plus side, sitting larger panels of seven or nine justices has brought the benefits of authority.

Lady Hale, whose comments come in an interview published in full today on Matrix Chambers’ UKSC Blog picks as the highlight of the year the Jewish Free School (JFS) case last December. In it the justices ruled by five to four that the school in North London had discriminated against a boy who was refused a place because he was not Jewish according to the rules set by the Chief Rabbi.

This was the case, according to the judicial assistants who help the justices, that “hit a lot of buttons”, engaged all the justices and saw “superb advocacy”. Hale says: “That is why they thought it was the high point of their year and I think that they were probably right.”

Despite the press and public attention throughout that case, the court has not been in the public eye in the way that had been predicted when it moved from the hidden corridors of the House of Lords and the media had not taken “much more interest in our work than they did before”, she says.

The introduction of press summaries have been a good idea and over time ought to improve public understanding. But while the court’s website is more informative and user-friendly, and schools and students now regularly visit, there is “more to be done”.

As for broadcasting, all proceedings are filmed and broadcast live in the Supreme Court building and are available on request to the media — although they “don’t often ask”, she says. But she accepts that the style of case presentation, with large amounts of reading out, cannot be that interesting. “There are no witnesses, there’s no drama.”

As for the low point of the year, the vox pop of judicial assistants came up with the justices’ failure to get “more of a grip” on the presentation of judgments: they wanted more single judgments and less duplication.

Hale has mixed views. A single judgment for the majority rather than separately reasoned judgments would be “very radical”; some justices are sympathetic but it is a change in culture that will take a long time to achieve, she says.

The justices are also split: some take the view that they must take responsibility for their own decisions and be prepared to give their reasoning — not “just go along with somebody else’s reasoning”.

In the JFS case, the five judgments of the majority showed how each worked out what the landmark discrimination cases meant, she says. And even with more joint judgments, dissent must always be possible: Hale often has a different “take” from her colleagues. “As ‘Ms Diversity’ I would regard myself as being considerably inhibited if I couldn’t come along and say, ‘Hang on, what about the child in this case?’ ”

Yet the more frequent use of bigger panels of seven or nine in sensitive or difficult cases has meant the court’s decisions are “more authoritative” and makes it less likely that a change in composition would have led to a different result.

What has life been like in the new court? Hale confesses to “one or two branding things” that irritated. The justices joined the government secure intranet that meant that their e-mails carried a message to say they would be monitored and recorded by the Ministry of Justice. That, she said, was unacceptable — “apparently no one thought of it until I noticed it”.

Then when her daughter with her two small children visited, they were told in the café that it was ministry policy not to sell bottled water because tap water was adequate. “But we should have our own policy for things such as this — we should not follow government or Ministry of Justice policy.”

Hale is known for championing diversity in the legal profession and judiciary and in this, she believes, there is still more to do. “The most obvious barrier to women’s progression in the judiciary is that high judicial office has been reserved to those with successful careers as barristers.”

The Bar, she adds, “is the least family-friendly profession in the world, with the possible exception of investment banking”.

The barrier is still very much within the legal profession itself, she argues. Appointing more solicitors would be a good way of diversifying the judiciary but while big law firms do not encourage or support talented people to go for the Bench, that will not happen.

She has an unusual background in that she was a career academic before becoming a judge. “I think that is the reason why I’m here,” she says.

“One of my theories is that because I have had such an unusual career, my colleagues don’t compare themselves with me in the way that they otherwise might. They aren’t saying, “Oh, I was in chambers with her’ or ‘I was against her once’ or ‘I knew her at the Bar’ or ‘she was no better than me’ or ‘she was worse than me’.”

As for the future, on a practical level, she would like to see much less time spent on oral submissions — although not as curbed as in the US Supreme Court where argument is limited to half an hour on each side.

“Most of my colleague would probably take a different view from me but I do not like listening to counsel cherry-picking the bits they like out of important cases.”

The justices should be told what cases counsel thought should be read in full before the hearing and then oral discussion can focus on what they mean and their impact on the case in hand, she says. “That is what I would rather do.”

In terms of law, the relationship between the citizen and the State will continue to be important, she predicts, as will that between the UK and other states and issues of public international law. And, true to her sobriquet, she adds: “I also think equality is very important.”

When she was at the University of Cambridge 40 years ago, the idea that public international law would be as important to decisions in domestic courts as now “would have beggared belief”, she says.

“But human rights law is public international law ... and these international treaties are having huge implications for the rights of individuals.”

Full interview by Dan Tench and Laura Coogan, partner and associate at Olswang

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