Law reformer: Lady Arden

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The proud Northener and ardent law reformer talks to Anthony Inglese CB about her early years as a company law barrister, custom and practice at the Supreme Court, and supporting the ambition of women and underrepresented groups at the Bar

‘My father was a solicitor, and his father before him, in the family firm. My mother had worked in the firm before their marriage. I had too in the school holidays. When I went up to Cambridge to study law, with the intention of becoming a solicitor, my father’s hope was that I would join the firm and he would be able to add ‘& Daughter’ to the firm’s name. Towards the end of my legal studies, however, I decided to go to the Bar.’ Were your parents disappointed? ‘No, enormously supportive.’ I am Zooming with Lady Arden, Supreme Court Justice.

Was law an obvious choice for your degree? ‘Not quite. I had originally wanted to be a doctor but my school wasn’t strong enough in science and I was hopeless at maths. The school’s advice for a career was “think of something people you know do”. Hence law. When I got to Girton I was inspired by what I was learning and by the people teaching us.’ She obtained a starred first. Leisure pursuits included riding. She stayed on in Cambridge for the postgraduate LLB followed by an LLM year at Harvard Law School as a Kennedy Scholar.

Why the Bar? ‘Studying how judges were making case law gave me a desire to contribute to the way law is made. The chance of presenting arguments that might help develop the law or being a judge and helping to change the law was for me an important difference between solicitors and barristers. And, in the North West, we had a wonderful role model for a woman advocate, Rose Heilbron, the first woman silk. She performed to public admiration the role of the barrister in criminal cases. She appeared on front pages; her cross-examinations were quoted; members of the public went to court just to watch her.’

It is clear that Lady Arden of Heswall – her home town on the Wirral – values her roots. ‘I am proud of being a Northerner, proud of the culture, of the directness and the creativity against the odds. It’s where the Industrial Revolution began, on which our national economy is based.

‘My interest since my postgraduate days had been in company law. It was a very small Bar. Through my father’s connections I managed to get a pupillage in one of the few sets of company law chambers, and my pupil master was Richard Sykes. He was very eminent in the field, and later took silk and became Head of Chambers. He was clever, friendly, immensely thoughtful and practical. He had no truck with people who would not do things entirely correctly. An authoritative and remarkable lawyer, he was only rarely in court. He remained a role model for me throughout practice. I obtained a tenancy in his Chambers. In those days there were doubts about taking women tenants. People thought women would not get work or if they did they would then leave to have a family. Women applicants were sometimes told, “We have got one woman already…” However, Chambers had just undergone renovations, including putting in a ladies’ loo, so perhaps I came at the right time.’

Lady Arden’s practice thrived. ‘I was keen to get on with the work. There was much collegiality in Chambers, and we worked hard. Clients don’t want to know the cases; they want a considered view, pretty well instantaneously, without too many ifs and buts. It was an advisory practice in real time.’

After seven years as silk she was appointed to the High Court as the first female judge in Chancery. There wasn’t to be another for 15 years. ‘I was surprised when I was asked to be a judge. Had the system been different in those days I would have applied at the appropriate time.’

During her time in Chancery Lady Arden did a three-year spell as Chair of the Law Commission. ‘I learned how legislation is put together and how policy is made and tested. When interpreting legislation judges should try to work out the policy behind it. It’s a mistake to assume there is none. I wouldn’t have appreciated all this before my Law Commission experience.’ She memorably said of herself, ‘Once a law reformer, always a law reformer.’

Is she ever in danger of mixing judicial and legislative approaches in her own cases? ‘I think I am better disciplined than that! Judges express their view as to what the law is. That said, many legal questions call for judgement; there is always an element of selection and choice. It’s only in the rarest of instances, where there has been a terrible hitch in the drafting of legislation, that the judge may be asked to fill a gap.’ She values historical perspectives in law reform. ‘But the real question is not how the law got there but why does this point of law matter today? What benefits does it bring? You have to think contextually. That’s why the Law Commission is important, as it brings together people who apply the law and people who have the law applied to them.’

Her passion for law reform and her love of company law combined in her membership of the Steering Group of the then DTI’s Company Law Review, the project that led to the mammoth Companies Act 2006, reforming and restating company law. ‘We consulted extensively and made recommendations to government. At one point we feared the Bill would never get off the ground. During its preparation we maintained links with government to ensure that our concerns were being properly understood.’

Promotion to the Court of Appeal came in 2000 and to the Supreme Court in 2018. Having worked at every level, and with her reformer perspective, can she say in which is the best court to be a judge? ‘I have no preference. The Court of Appeal is wonderfully efficient, making maximum use of a short amount of time. Judges there share the burden, as a lead judge is appointed in advance to write the main judgment. Of course, if the other members of the court disagree with that judgment, they will say so – no one looks to compromise their own views. The Supreme Court works well in a different environment. We always get difficult points, which is not necessarily the case in the Court of Appeal. And we receive the great benefit of the analysis of an appellate court below us.

‘Our system rests on the foundation of first instance judges deciding the facts at trial. This is a difficult task, and judges can rightly take a particular pride in their work at that level, as well of course as in their legal analysis. Was I ever reversed when in Chancery? Yes. I learned from those experiences what the appeal court was looking for, including the best ways of expressing myself and things to avoid. I would challenge myself: “Did I really need to say that?”.’

She values the custom in the Supreme Court where, at the end of the hearing, the justices go round the table in ascending order of seniority and offer their own short analysis of where they stand. ‘It’s quite nice to go round the table and get out one’s thoughts all in one go.’ She does not favour the Supreme Court moving to a practice of always delivering only single judgments of the court. ‘It’s very hard trying to sign up to an agreed judgment. There should be no hard and fast rule.’

Talk of ‘going round the table’ brings us on to her experience of online hearings, which the Supreme Court has been conducting since March. ‘The advocacy is the same, and counsel have adapted well. It’s more formal now: counsel can’t just have side-chats with solicitors and clients. Handling everything electronically, especially the bundles, is more difficult. But overall, in the circumstances with which we have had to deal, it has worked well.’

Isn’t the Supreme Court more formal anyway than the old Appellate Committee of the House of Lords? ‘Lords’ hearings lasted much longer. There was more time for debate between judges and counsel. Now all hearings run like clockwork, to the minute, and they are less intense.’

How does she see the future for women at the Bar? ‘I would like the next generation of women to find it easier to balance their work, their family and the other parts of their life. Diversity in the law is important. So is diversity on the bench, in terms of features including social mobility, religion, ethnicity, gender. It should reflect society.’ She downplays her position as role model, but this is the same person I saw at an event at Brunel Law School one evening where, after giving a well received session to the students, she was hugely appreciated for staying behind for over an hour afterwards chatting with students and allowing countless selfies and other photographs.

Advice to women and groups less well represented at the Bar? ‘You may often feel the imposter syndrome, that you are not as good as the next person. It can be difficult to overcome, but be more confident, forget about your worries, and be ambitious. When you arrive in a workplace contribute in a way that gains the trust and support of those working with you. Be sensitive to the ways of working of the different people around you, the pressures they face, what works well for them and what annoys. Law is a subject that is both intellectually demanding and rewarding. It has lots to offer. Enjoy it.’

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Anthony Inglese CB

Anthony Inglese CB was head of legal in five Government Legal Departments over a 38-year career, most recently as General Counsel and Solicitor to HM Revenue & Customs. A Bencher of Gray’s Inn, he now trains and mentors lawyers.