‘I have always been a talkative judge. I enjoy interacting with barristers. I ask questions to see where they are going and to test what is going through my mind.’

Lady Rose of Colmworth DBE PC, a Justice of the Supreme Court since April 2021, is talking with me about the job of judging. Our conversation fits nicely with her well-received Gray’s Inn Reading at Gresham College earlier last year on What Makes a Good Judge (featured in Counsel’s November and December 2022 issues*). We start with judicial interventions.

‘In a Bench of five some of the Justices may well have experienced previous cases on the topic before the court, but for me much of what we do is still new and it’s the first time I am having to come to grips with the topic.’ She instances cases on abortion safe zones and ones on Article 2 of the European Convention on Human Rights; also the Indyref2 case, which had just concluded before our interview. ‘All fascinating cases. I hadn’t been involved previously in the authorities in those cases; on the other hand when a tax case comes to the court I am more likely, owing to my Chancery background, to have more experience of the arguments and precedents than some of my fellow Justices. But whoever is asking the questions the fact is that we are all engaged in the case to the same level in the courtroom and in our deliberations afterwards.

‘Barristers try to read a lot into our interventions – they like to think that they can interpret which way we are thinking; but it’s rare that their interpretations are accurate. I often just feed an argument back to counsel to check that I have understood it. This gives confidence to the barristers and their clients. I am always focused on the chain of reasoning which needs to go into my judgment. So the best barristers will give you a route to verdict – that’s what’s most helpful. Where the barrister jumps from topic to topic, judges struggle to understand how one point relates to another. And that’s not how a judgment is written.’

I ask about her gentle style of intervening. ‘I was a nervous advocate, so this led me as a judge to be more understanding of the barrister’s role. However confident counsel may appear to be, they may well be quite anxious inside. Also, it’s important that clients feel that their barristers were given a fair hearing; if not, it’s very damaging. The advocacy in our court is generally of a high standard, though perhaps not uniformly so. I would welcome instructing solicitors being more adventurous as to whom they instruct. We always like to hear from advocates who are appearing before us for the first time.’

After the conclusion of the whole hearing the Justices withdraw and, going round the table in reverse order of length of service on the court, offer each other their reasoned views on how the case should be decided. They listen in impassive silence until each has spoken, after which a discussion follows. As a relatively new member of the court, Lady Rose often has to speak first. ‘It’s a privilege to begin but it’s also a bit of a nail-biting moment. I’ve prepared for it and written out my thoughts. I’ve got some idea of where the others might be tending from our discussions outside court and during the lunch break, but it’s only when you go round the table that you find out if people agree with you on allowing or dismissing the appeal and on the reasons. Sometimes it’s 2-2 all going down to the presider. But everybody accepts that at this point we are only at a preliminary stage on the way to reaching our conclusions, so any views expressed are very provisional.’

A difference from the practice of the Court of Appeal is that ‘we don’t know in advance who is going to write the judgment; sometimes someone will volunteer during the roundtable discussion; sometimes it changes during the discussion; sometimes people decide later that they want to write.’ She does not count the number of cases in which she has sat, nor the judgments which she has written. ‘If we can all genuinely coalesce around a single draft, that’s good; but quite often people share in the writing. There has been an increase in judgments written by two or more, and I enjoy that way of working. It’s an iterative process in a supportive environment – lots of polite and respectful “thank you’s”, even if people strongly disagree with each other. This is doubly important when there are so few of us. There’s no pressure not to dissent. I have always been glad that the judiciary is so collegial.’

So far we have been talking about the Supreme Court, but ‘most people when they get here underestimate the work of the Privy Council [which hears appeals from, among others, Crown Dependencies, some Commonwealth countries and British Overseas Territories]. It’s a good one-third to a half of our work, some quite small cases and some big, including large trusts, insolvency, tax, judicial reviews, constitutional and crime. Much of it is under the radar of the UK media. For us it’s interesting and demanding, and it increases the variety and importance of the topics we get to cover; also the range of judges with whom we sit since judges in the Court of Appeal and from Scotland and Northern Ireland who are also Privy Councillors can be invited to sit with us.’

The pace of a Justice’s work can be relentless. ‘Today I am thinking about a case part heard from yesterday, writing sections of a judgment in a previous case, reading into a case for a forthcoming hearing and commenting on a colleague’s draft judgment from a hearing a while ago.’ Lady Rose spoke in her Gray’s Inn lecture of ‘a particular kind of cleverness’ that is required of judges. ‘It’s a form of mental agility. You have to be a juggler!’

I mention an appeal in a tax case about online newspapers, which was heard earlier in the week we meet. Lady Rose was in the Court of Appeal for that one, so she could not be involved in the appeal. But would the Justices talk to her about it over lunch? ‘That’s a no-no. And of course I would have no influence at all in this kind of situation. On the contrary, it often happens that after you join the Supreme Court your judgments below get overturned. It’s uncomfortable, but you learn to get over it.’

It’s not all judging. ‘I love the legal content of the role but I also do a lot of outreach, speaking to groups where I feel I have something to offer. For me this is as valuable a contribution to the work of the court as sitting on a case. She speaks at schools and universities, including Reading and Warwick this year, and gives lectures to associations of lawyers and others. ‘I try to talk about topics other than black letter law. It’s not a slog, it’s a privilege, and I make many interesting contacts.’ She has also been involved in the selection of judicial assistants for the court and a bilateral with the judges of the Irish Supreme Court, as well as behind the scenes being a member of the committee advising the Lord Chief Justice on judicial pensions.

‘One wonderful opportunity that this job offers arises on the social side. You are on the “invitation list” of lots of interesting organisations, and I get to meet all sorts of people at a wide range of formal dinners and receptions. When I started as a judge I tended to overdo the evening engagements. I still do a lot, but I’ve tightened up my criteria for accepting invitations.’

She has clearly enjoyed being a judge at every level. Would she recommend it to others? ‘Judging is a fantastic career. It’s more open than it has been, and I was so glad to see the appointments to the High Court of Rowena Collins Rice from the government service and Sarah Falk from being a partner in a law firm. In fact, Sarah is now in the Court of Appeal, and her first foot on the judicial ladder was in the tribunal service, as was mine.

‘There is still an issue with diversity at the top as with every professional structure. Things only change when we make them change. I’m glad I never let them get in the way of my applying for anything. The fact that at this point in time I am the only woman in the Supreme Court is not representative of the role of women in the judiciary at all. If people look at the number of women in the High Court and Court of Appeal they will see that the position has changed beyond all recognition. The attitude of men towards diversity and inclusion has changed enormously in my time for the better.’

When I last interviewed Lady Rose in 2015, she was in the High Court. We started then with a question that had recently been put to her when being invested as a DBE: Have you had to come far? This time round I ask her: Have you arrived? ‘I don’t have any anxieties about my legacy, if that’s what you mean. I feel I have made my mark by managing to arrive here by a rather roundabout route. I am used to being the first or only woman, as I was when I started in Chambers. I no longer feel that I have to disguise any part of my personality, or temper what I do and say. There is less of an assumption that everything I do is gender-directed, and less concern about whether and how being a woman might influence my decisions. I seek to remain a private person and concentrate on doing my job well.’ 

* ‘The good judge’ series by Lady Rose appeared in the November and December 2022 issues of Counsel. You can read the Part 1 here, and Part 2 here.