I don’t normally write here about television interviews, but when the interviewee is no less than Lady Hale, the President of the Supreme Court, then one is bound to take notice.
In the early hours of Monday Lady Hale appeared on the BBC news programme HARDtalk, where she was interviewed by the journalist Stephen Sackur.
It was a wide-ranging discussion, covering everything from Brexit to assisted dying. But it also covered a number of points of interest to anyone concerned with the family justice system.
For example, Sackur raised the question of the loss of public confidence in the justice system, caused in particular by the legal aid cuts. Of this Lady Hale said:
“It is essential to any justice system that it is accessible to those who need it. I don’t confuse access to justice with access to lawyers – they’re not necessarily the same thing, but they often are. So people who can’t afford legal representation or legal help or legal advice … ought to be able to have it.”
Well, quite, but exactly how this might be achieved without the restoration of legal aid, I don’t know. Lady Hale went on to say that the cuts had a “considerable impact” in the area of family law, meaning that far more people have to go to court to resolve their disputes, because they are unable to negotiate direct with one another, and they no longer receive legal help with how to negotiate. Interestingly, she said that this can be corrosive to relationships, for example between parents, who must still deal with one another long after they separate.
Sackur asked Lady Hale whether the lack of legal aid was leading to judges making the wrong decisions. Lady Hale indicated that she did not believe this to be the case, but said that it was increasing the burden upon judges, who were having to deal with cases without lawyers far more often than was previously the case.
Despite all of the problems, Lady Hale did not accept that the system is close to collapse. I know that there are many with would not agree with that assessment, but let us hope that she is right.
Moving on, Sackur asked Lady Hale whether she believed that the law, and I think family law in particular, “continues to fail women”. Lady Hale replied by saying that “there are probably ways in which it does”. Sadly, she did not elaborate, at least in relation to family law matters, simply saying that the law used to seriously discriminate against women, but that improved greatly with the reforms of the 1970s. Still, it is interesting that the most senior judge in the land, and someone of course with a great deal of experience of dealing with family matters, thinks that the law still fails women, at least in some ways. Again, I know that there many who would not agree, or who at least would say that the law also fails men.
The last family law related topic covered in the interview was the reform of divorce, with the introduction of a (fully) no-fault system. Lady Hale is, of course, in a very good position to talk about this, being one of the justices that dealt with the Owens divorce case last year, as was mentioned in the interview.
Sackur asked Lady Hale what she thought about the proposed reform. She said that she believes that the proposals will be a “great improvement”, providing us with “a more straightforward, more honest, and less adversarial system of divorce”, almost identical to the proposals that the Law Commission recommended back in 1990, when she was in charge of the Commission’s programme for the reform of family law. Just a shame that it has taken so long to get here, I suppose…
Lastly, Lady Hale was asked whether she believed, as some argue, that the reform will damage the “fundamental foundation of marriage – till death us do part”. She said that she did not, pointing out that divorce has been possible in this country since 1857, and even longer than that if you were “rich enough” and “male enough” to get a divorce from parliament, so marriage has never been indissoluble. She went on: “the institution of marriage has not collapsed at all, and that is very much illustrated by the popularity of gay marriage since it’s been introduced.”
You can watch the whole programme on BBC iPlayer here, where it will be available for the next eleven months.