Wise counsel: Lady Black

Running from the Bar (and back again), the dynamics between bench and counsel, and why family law is no poor relation. Sagacious yet self-effacing, the second-ever female Supreme Court judge agrees to a rare interview


‘Don’t make it too personal.’ At the end of a most enjoyable interview Lady Black gently asks me to downplay the personal content in my write-up. The second-ever woman to be appointed to the Supreme Court rarely agrees to interviews, does not seek a profile and wonders whether she has the proper credentials to talk about the work of the court after less than two years in the role. ‘In my private life the people around me – apart from close and professional friends – don’t know what I do.’ The concierge at her block of flats in London will say, ‘Parcel for you, Mrs B!’ And that’s how she likes it. ‘What would I call this quality? “Retiringness.”’ Reinforced perhaps by her judicial experience? ‘I was a family judge: I listen, reflect, watch. I spend a lot of time looking around the courtroom. I ask myself “Is so-and-so alright?” A significant part of my judicial role has been to help people to settle their disputes, to explore what the problem is, and is it really intractable.’

The daughter of two doctors, Lady Black was the first lawyer in her family. Why law? ‘I made a mistake. I was given a book about a Dr Thorndyke – an attractive Sherlock Holmes-type character, who had chambers in the Temple.’ Dr Thorndyke was one of the first fictional forensic scientists, his creator Austin Freeman describing him as a ‘medical jurispractitioner’. ‘I thought he was a practising barrister. I got the bit between my teeth and decided I would be a barrister too. My parents said, “What an idea!”, so I was all the more determined to go through with it.’ She studied law at Durham. Favourite subjects? ‘It was English, which I was able to take alongside law at the outset; but favourite legal subjects were contract, tort and conflict of laws. This latter was highly relevant when I became Head of International Family Justice for England and Wales. Criminal law was technically difficult – I can’t say I liked it much.’

She went for a second six and a tenancy in chambers in Leeds, doing a mixture of civil and crime. But after four years of ‘working flat out and worrying’ she left the Bar, a decision that for her was going to be ‘for ever. I was absolutely sure I would never come back. I had gone straight through the system – school, university, the Bar – without a break’ and she needed a breathing space. But she remained in the law, teaching on an undergraduate course and on the solicitors’ finals course, a job that ‘guaranteed I remained disciplined. It was good for me to be required to understand thoroughly what I was teaching. Students can be unforgiving: they ask, and they keep on asking until you provide the answer. Amongst other things, I was teaching family law. I wrote a book on divorce for members of the public and then a textbook called A Practical Approach to Family Law. But it dawned on me that if I remained in academic life for much longer my practical experience would gradually become out of date and I would lose my authority to teach practical subjects.’

At this point ‘a friend was setting up a new set of chambers in Leeds and asked me to join. I had had one child by now and to avoid recurrence of “the worry and over-work”, and to leave time for home life, I resolved to specialise in only one subject. It was a risky career move, in the provinces, in those days, to specialise, and I thought that my best chance of getting work was in family law, so I chose that. I went back three days a week but before long it had turned into full-time again. People had not remembered I had been away. Soon I was inundated with work again, so I decided to try for silk.’ After the completion of her run-off work from her practice as a junior, there was a lull for the new silk – ‘I took a gardening qualification, thinking I might need it.’ The lull was only temporary, however, and she has not been able to make as much use of the gardening training as she might perhaps wish.

True to nature Lady Black did not at first call herself a QC. ‘I felt it was boasting. One day a court official even told me that I shouldn’t be sitting in the QC row – I should move back.’

With her experience of courts at every level, what importance does she give to advocacy? ‘I’ve always liked being part of a dynamic debate between bench and counsel. Advocacy is as important today as it ever was. I was so fortunate that my second six pupil master made the time to coach me in advocacy despite his huge practice. There’s little point in formulaic advocacy – so much depends on the individual. Successful advocacy for the advocate is like getting the three bells on the slot machine – your arguments reflected in a winning judgment. It may take a few pulls during the case! Think about what the other side would say and how you would answer. And then the judge will ask a question which nobody has thought of. I’m surprised at how often a new point arises even in the Supreme Court.

‘But in law there is not always one right answer anyway. I did what I thought I had to do to prepare for my cases, and then I went an extra ten miles – not just an extra mile.’ But immediately she balances this last comment: ‘I don’t presume to give everybody the same advice. Some counsel need to be told not to do too much preparation – although when one in ten of their extra researches produces a result that affects the judgment it’s hard to tell them not to do so much research.’

"The 2016 case of Re B in the Supreme Court made important pronouncements about appeals but was ignored because it was a family case. We can’t afford to do that."

Five years after taking silk she received a phone call. ‘Would I consider becoming a High Court judge? I said I would consider. I thought – wrongly, of course – that it was a practical joke of the kind sometimes played on my Circuit! However, fortunately, I followed it up a bit further, and ultimately said yes.’ Those were the days of the so-called ‘tap on the shoulder’. In a system where one had to apply, would she have done so? ‘I wouldn’t have put myself forward without the approach. But that was then. The system has changed – for the better. On any view, however, encouragement to apply needs to be an important part of the system: managing people’s understanding of themselves, especially people who don’t rate themselves as highly as they should.’ She speaks with the authority and experience gained from her membership of the Judicial Appointments Commission. She herself has encouraged some people to apply for judicial posts, but characteristically won’t accept my invitation to agree that she is a ‘bit of a mentor’ to members of the Bar.

Does she enjoy judging? ‘Yes and no. I enjoy legal problems. But the issues that come to family judges are by no means purely legal problems and they present special difficulties. Most other judging requires a meticulous examination of the past; the decisions of family judges can also require the making of assessments of future behaviour and risk, for example whether to remove a child from a parent who may be blameless or to leave a child in a situation which might prove extremely dangerous.’

Where does the resilience come from to make and live with these decisions? ‘For me it has been a mixture of firm conversations with myself, as well as diversion strategies to give me a break from constantly turning decisions over in my head, such as listening to audio books when I might otherwise find myself going back over things, for instance in the car.’

She is irritated at comments that family law is a poor relation of other subjects. ‘The legal system should actually be more joined up. The practice of law is still blinkered. For example, the 2016 case of Re B in the Supreme Court made important pronouncements about appeals but was ignored because it was a family case. We can’t afford to do that. Family law involves hard law as well as practical issues; for example international family law has huge complexity.’

Her advice to would-be barristers? ‘Don’t decide too soon what areas you want to practise in. You’ve first got to see how things work in practice. This can cause surprise changes in favour of or against subjects studied at academic level. Similarly as between becoming a barrister or solicitor.’ She recently told her story of ‘running away from the Bar and then coming back’ to a group of students. ‘At first I feared that I had shown them a bad example, but the girls in the group came up to me afterwards and said that it was good for them to hear me explaining my own vulnerability; it’s OK to worry, it’s normal, and underneath my feet are paddling very hard.’

 

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.

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Anthony Inglese

Anthony 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.