Sir Mark Hedley DL
How would you describe your religious or ideological identity?
I regard myself as an orthodox Christian, evangelical in doctrine, relatively more liberal than many evangelicals in ethical outworkings, but doctrinally fairly conservative.
My parents had a connection with the Church of England that you might expect… retired army officers from war time and we went to church now and then, but from the age of 9 we regularly went and I then made my own choices, which I think my parents thought were rather extreme, but we survived together.
Is GB an equal and tolerant society, especially in relation to religion and belief?
My impression is that if you refer to Great Britain, purely in religious beliefs terms, it is a relatively equal country in the sense that the majority of people are very happy for people to express their religions as they want as long as it is not coercive towards them. I wouldn’t make too many assumptions about the rest of Europe. I know a little bit about France. I know a little bit about Bosnia, and the two are so different, that I would hesitate to make any generalisation… my impression of France is that it is deeply secular and very anxious about public expressions of religion…in Bosnia everyone wears their religion on the sleeves, without much apology, without much regard for the impact it may have on anybody else, and therefore, I wouldn’t want to draw any generalisations about Europe at all… those happen to be the two places I know a bit. Others, I don’t know enough to make any comments at all.
The fundamental challenge is living as a Christian in a State whose culture is increasingly secularised. Therefore, whereas in the 1960s, when I was growing up, young Christians would have said to themselves ‘what do we have to do to be different?’, nowadays my children’s generation don’t ask themselves this question, because they don’t have to… if you want to be a Christian, you are going to be different. So, to that extent it has changed in the sense that you will live a little to the margins. Obviously, if there were conflicts in the field of work, which needed a lot of working through, but I haven’t found anything at the end of the day that makes life intolerable.
Has the Human Rights Act been positive for our society?
There is no doubt that the impact of the HRA on British society has been profound. I think it is important to say that the HRA had significant impact on legal culture long before the HRA came into force, because of course the original Convention had a significant British input and therefore there was some general understanding of the principles that underlay it, which we share in common… Since the Act has come into force, I think it has had the effect of making judges more influential and powerful within society, because of the ability by using Human Rights both to interpret Acts of Parliament under section 3, in a way that Parliament never intended, but also, I think, just in terms of general critique of public bodies and so on… I think the fundamental weakness of the whole thing is that whereas it is relatively easy to articulate the human rights of those involved in many given situations, we are less good and we have less equipment to enable us to handle clashes of rights. We are reduced to this concept of proportionality, which has deeply subjective connotations. There are big issues there, and the fact that judges have to strike balances is one of the reasons why they have become more powerful beings.
At the moment, the statute and the Convention provide no means for redressing conflicts between rights. They don’t articulate any positive means for doing it, so people who have done it might use the qualifications of Art 8 and Art 10 and the other qualified rights, and that is where proportionality comes, as far as I understand it. Being a family lawyer, I am instinctively at ease with the concept of dealing with things on a case by case basis and finding a solution that suits the facts of your case, but in strict human rights terms, it has the huge disadvantage of making the outcome unpredictable and therefore it is difficult to advise people of their rights if you don’t actually know the extent to which they are going to be upheld if they are found to be in conflict with other human rights. I am not sure there is a way around that and I have been writing an abstract this morning for a lecture on a conflict between transparency and privacy in court protections, as I had a hand in quite a few of those cases, and again the press and the parties endlessly complain that whereas they can understand this concept of balance of rights, it makes outcomes completely unpredictable, and people do not know until the case starts where it is going to end, and I have sympathy for that.
How should the State balance the rights of parents and children in relation to religious education and upbringing?
I think part of the problem is that English Law still wrestles with the concept of children rights. The academics are extremely hot on it, and the culture within English society, maybe is changing, but traditionally it was very paternalistic. So, religious education was regarded as the responsibility of the parents to decide. Obviously sensible parents are going to make allowances for children views, but I mean I certainly grew up in a setting where my religious views and my parents’ religious views differed significantly in degree if not in fundamental substance, and the compromise was that I would go to the school where they wanted me to go and they would let me free in the holidays to practise the faith I wanted to practise. That actually worked quite well in truth but if you have a serious conflict between parents and children, I think that is much harder to resolve and I suspect it is resolved, actually, at the end of the day, by children either withdrawing, that in a sense in practice they can do even by refusing to take part in what’s go on, or if the issue is the other way around, with parents having less enthusiasm in religion than children, children being able to use their position in local clubs, churches, etc, to express their religion there.
There is a fundamental conflict within Family Law, between the need to protect children and the respect for the autonomy of the family, and that will apply to this particular issue as well. We have not, I think, finally addressed conflicts… nor I do believe we shall be able to… because children in fact, the younger they are the truer this is, but it is true all the way up, don’t survive independently outside a relationship with a parent, or a carer rather, or carers, and therefore, you can’t force the distinction between family autonomy and children rights to its logical conclusion… You live permanently in a state of tensions in which you try to respect the one against the other…I am going to do something in the summer on children rights in the medical context, where on the whole the judges will almost always respect the child’s consent , but don’t feel tied by the child’s refusal of consent. That is what happens. It seems to me that is another marker of the tension between family autonomy and children rights, and between the protection of children and respecting the rights of children.
It is an accurate assessment in my experience of how cases are argued… I can hardly recall a mention of Art 9 in any case I have been involved… where Arts 8, 10, etc, are endlessly subject to discussion. Why is that? There are two possibilities, one is that it is not treated seriously, the other is that people have found ways to express their freedom of religion in ways they don’t need the assistance of the courts to do son, and I think in the family setting, the latter will be generally true, because in matters of religion the courts will ordinarily respect family autonomy, and even when making assessment of welfare, they’ll respect family autonomy… so, the judge who may have personal reservations about… shall we say male circumcision, he/she is dealing with a Muslim family, it is not likely that he/she will impose his/her views, because of the impact on the child, that may drive him outside of his own community… It is not consistent with child welfare. So, in that set up the family views prevail.
Do your beliefs mean that you feel that you have a duty to vote?
I think all citizens have a moral duty to vote, but I would include within that the right to spoil a paper if they decided to do so… Personally I think I have always voted, other than when I have been unavoidably prevented, and I would regard that as my duty to do so, as both a citizen and as a Christian. It is a citizen’s duty, which Christians in the ordinary understanding of the Old Testament that we are part of the society, also owe that duty.
Does the unelected nature of House of Lords concern you?
We have to recognise that if we were going to design a system from scratch, you would not design the House of Lords… that is undoubted… the second thing is that is much easier to say what you don’t want than what you really want. So, there may be a view that the House of Lords cannot go on as it is… but there is a hopeless conflict of views about what should replace it. Consequently, it doesn’t happen… a good example was the Australian plebiscite on the Monarchy. There was a majority view for a Republic, but pro-Republicans couldn’t decide what they wanted, and so the minority, the status quo won… and that is what happened in the House of Lords… and the only time in which it was seriously reformed is when it has been driven by a political necessity over and beyond constitutional reform, such as the Lords’ refusal to pass a budget which was a matter of the democratically elected House… and you also have to factor into the thing, that at least in the British Constitution, but I suspect it is true in most human institutions, there are some things that shouldn’t but in reality work, and in a sense you could not replicate in a democratic House the present work of the HoL as an expert reviewing Chamber. A democratically elected House couldn’t.
How do you feel about the presence of bishops in the House of Lords?
Again the bishops of the CofE in the HoL is a historical accident. I would personally favour an Upper House which represented different views across society. So, I can see the advantages of an Upper House which has medical representation, and therefore faith representation… I am personally uncomfortable with CoE bishops representing the entirety… As it happens, enough other people of faith are in the HoL probably to provide the voice of Islam, Hinduism, Catholicsm, but that only happens because individuals of those faiths choose to do that. I am not opposed to formal religious presence in the House of Lords, but I am uncomfortable with the current situation.
Should Parliament have the final say in making and changing law? Would you like to see an empowerment of the judiciary in striking down legislation?
The judiciary unanimously embraces Parliamentary Supremacy in principle, but they have put down at least three markers as to whether they could challenge it. The first was over the refusal to make decisions about the right to assisted dying… that is a matter for Parliament, but they added that if Parliament didn’t address it, the judges might… I think the second one was when Parliament was threatening to withdraw the right to judicial review… the third, of course is section 3 of the HRA, where there is no doubt that although lip service is paid to Parliamentary Supremacy, section 3 has been used from time to time to interpret statutes manifestly at variance with what Parliament probably intended… I got involved in one where we dealt with reverse standards of proof in terrorist proceedings, and it was obvious to us as a Court of Appeal that Parliament had intended to reverse burdens of proof, and the HoL in effect said ‘well, grammatically we understand that, but we are not having that’, and they used section 3 in a remarkable way. Therefore, there are those three challenges around, but within that I don’t detect amongst judges any ‘hunger’ to be able to strike down legislation. In a sense that is one of the side effects of having an unwritten Constitution, isn’t it? I think if we end up with a written Constitution, we will actually join all the other parties and we’ll end up with a Constitutional Court. I don’t see how you can avoid the Constitutional Court if you have a written Constitution.
My own experience is that there are occasions where judges feel they are driven to decisions they’d rather not take, and it is because of the terms of the statute… but I think that is completely inevitable, but different judges will encounter that experience from time to time, and not least because every judge takes the same view! I haven’t encountered serious rational objections to parliamentary sovereignty, although I appreciate that some of the cleverest people in the Supreme Court have been making noises about it… I suspect even the current President, for whom I have infinite respect… but I don’t think any of them are currently planning a fight on the question.
How should those who exercise power be held to account?
I think the extent to which people are held to account, as a result of rules made by Parliament, will depend very much on what their roles are. There is a criminal law… and I think that people who operate in the private sphere, they must answer to criminal law, to their own associations, professional bodies… but those who hold public offices and in a sense derive their authority from the Crown or Parliament, that’s a different matter and I think there is a proper basis there for accountability. Judges who hold their office are publicly accountable for what they do… not publicly accountable to politicians, that’s separation of powers again, but publicly accountable in a way which is public. This includes the appellate courts and the judicial discipline procedures.
What duties do all citizens owe society?
All citizens owe to the rest of society compliance with Criminal Law. Let’s start with the fundamentals. Secondly, there are civil duties which the Law of Torts provides, which are imposed on us, and thirdly, effectively duties when we decide to have children, and the care and upbringing of children and so on… Beyond that I am a believer that the law has powers to constrain wickedness, but very few powers to make us good… the whole essence of good is that we choose it. One has to recognize that once we do with the basics, all the rest of it are matters that individual citizens have to work out in the lives they choose themselves. You can’t compel people to be good, you can restrain them from being bad. You can encourage goodness, but you can’t compel it.
I am astonished how little people know about the legal system. Obviously I don’t tend to ask people many questions about the political system, but about the legal system… for the most part people’s concept of the legal system is limited to Criminal Law and I have always been astonished, even talking with intelligent young professional Christians, involved in community actions, that they see their job to protect people from Criminal Law, and my idea, for example, in terms of housing… the idea that the law could be a friend of the poor… was like I was speaking from the moon. Now, those who finally get themselves into it, really understand what the law is about, and of course one of the difficulties which we have encountered in Family Law, which has imposed itself on a far greater range of the population that it used to, is that people resent something because they are not criminals, and they resent the intrusion and the undoubted compulsive powers that family courts have.
Are those who exercise power representative of society as a whole?
Manifestly judges are still drawn from a very narrow part of society, but there are changes to be observed. In gender terms, for example, if you take the legal profession of age 30 and under women are in a majority there. If you take the senior judiciary they are still in a tiny minority. If you take the junior judiciary, for example, you take the district bench and the tribunal judiciary, you will find that women are extremely well represented and in terms of appointment over the last eight years, probably they are in a majority. They are still under-represented in the high court and more so if you go further up. The argument will always be that actually if you look at the percentage of applicants, women do better than men even at high level… and the same I suspect it is true about ethnic minorities candidates. The issue, however, goes right back to secondary schools and the kind of opportunities people have had. I think the gender thing is difficult, because I don’t think women and men in their thirties, in the legal profession, all have the same priorities. That shouldn’t apply in relation to race or sexual orientation or things like that… I think there is progress. It is very slow progress and I suspect the issues go back long, long before any question of an application arises… It is quite expensive to become a barrister. You can do it without any money, but it is a risky debt…. And starting at the bar is not easy and the present legal aid reform has made it even more difficult. Very few academics apply for judicial office, and that doesn’t remotely surprise me, for at least for so long as the only route to the higher judiciary is through being a trial judge… I used to be days and days and days without any legal arguments, it was then all down to the facts of the case… so, I think the judiciary are still substantially represented by a small categorisation of society. There are changes on the way, but I suspect the roots of the problem lay far, far back, in the system.
Have public bodies shown a good understanding of your needs as a Christian?
In my experience as a private individual, rather than a judge… well, my experience has been different. That’s part of the trouble. If I go to the health system, they know who I am and they aren’t going to pick fights with me… they are not going to do it. So, my only experience and I have never made a secret of my faith… it is everywhere…. Because it has been an open secret, I have never encountered problems because of my faith. The most difficult time for me was during my first five years as a barrister… at that point it was more difficult than later in life when everyone knew where I stood… they may not agree with you, but they acknowledge you have a right to take a stand if you wish. So, my experience will be a bit different in that sense, and although I am aware… I have had my faith challenged through decisions I have had to make, but that is a different issue. I think part of the difficulty is that Christians I know either don’t have those issues or if they do, they are able to handle them… and when I read all that stuff that comes from Christian Concern, for example, I am left thinking ‘hang on, how do people end up being in these situations? If there are good relations with your colleagues, these things are usually manageable’. I can understand the rules… there will be times when you take a public office, I can understand there are problems for registrars… I personally don’t believe that within a particular registrar’s office, things are not resolvable, but the difficulty is that people on both sides often want to take stands…. There are times in which you need to take stands. I am not suggesting you shouldn’t, but there are also times when it provokes unnecessary conflict to do and we are here to live in peace as far as we can. So, I can only give you very limited help on that, because I have never encountered any problems in my personal capacity.
Do you have a duty to speak for the vulnerable?
My faith certainly requires that I speak on behalf of the weak and the vulnerable. So, for me, when I became a barrister and we decided to live in this area, which is one of the roughest parts of Liverpool, I decided that my practise would be along the law which affects those at the bottom of our society. So, I became an expert in childcare, housing, compensation, crime, etc, all that kind of stuff that affect people’s lives. And so, my moto was working on behalf of those who can’t speak… rather than feel I was a campaigner, I fundamentally immersed myself in those areas of law and I like to think that things have changed a bit as a result of contributions, not only Christian lawyers, but others too. I used to work with the Legal Action group, which was purely secular, but which had a number of Christian members, and I was interested yesterday I had lunch with two senior partner about various projects which involve secular law, but have a Christian drive behind them, because the issues matter to people… So, certainly, speaking on behalf of the most vulnerable people has been one of the fundamentals of my life.
Is the Rule of Law applied equally? Do some groups experience preferential or prejudicial treatment?
For all its imperfections, the subjection to the rule of law is fundamentally within the British DNA and so, whatever goes on, and I think it is fundamentally there, we probably have, and it is deeper within us than in many nations, because we have had it for much longer… we didn’t go through the revolutions of the XIX century which convulsed most of Europe, or indeed the XX century. We have been sort of short on revolutions, and I think that affects the DNA and makes us probably less militant about it, slightly less conscious about it too. We need to be watchful because I think we can see things slip away from us without noticing them in a way that couldn’t happen in other countries. So, while I hesitate to make comparisons our history shapes us slightly differently and I think it is true in relation to issues such as the place of religion in society. There is a sense that we give it a formal standing to establishment in a way that strict separation of powers nation don’t, but I think all is part of an instinctive DNA, that kind of says ‘well, this has actually worked quite well. Why change it?’ even if you were to design today, you wouldn’t design it that way.
Access to justice is the fundamental problem nowadays, I think. Art 6 requires equality of arms… and it is interesting how concerns change… when I was a circuit judge in Liverpool our concern was that the defence was far too often outgunning the prosecution. Now, of course, the problem is the other way around. The Crown can be strongly represented and the defendants may have to put up with whatever the system is willing to give them in terms of representation. So, I think in the Criminal Law… that’s one thing, the other thing we are going to have to ask questions about, I don’t think we know the answers to it, is why ethnic minorities in Britain are over-represented in the prison population. At one stage it was mainly an African-Caribbean population, but now it is a Muslim problem as well. I don’t know if we know the answer. It was felt at one stage that courts were more likely to send Afro-Caribbeans to prisons than white… My impression, and it is anecdotal, with the twenty judges I worked in Liverpool, the reverse was the case. You pause longer before doing so… but that is anecdotal. I don’t have any idea about what the statistics are. Therefore, there may be an equality issue tied up or may not…
Are there conflicts between your faith and secular law? How would you resolve them?
As a theoretical question, the answer must be ‘yes’. There must be circumstances in which that could arise. If you are saying ‘have I confronted any such position?’, I suppose the nearer I would have got to it would be where in Family Law you end up authorising family structures of which you don’t personally approve and therefore, the temptation to withhold authorisation or to refuse to participate in the issue at all… so, for example, I have undoubtedly authorised same sex families, surrogacies, I have authorised things that in my personal life I would not want to be associated with. I have given my reasons in public for doing it and they stand or fall on their own merits, but that I think it would be the nearest I have come to it. In my personal life, I am not aware of having come anywhere near to having to make a decision like that.
Is there anything which you would like to add?
I think the increasing secularisation of society has brought this issue to the front in a way which wasn’t when I was growing up, although you were still a slight outsider as a practising Christian, your life style wasn’t all that different to other peoples’. There was a broad post-war consensus about how families were. Today there is no consensus, there is a vague consensus like the welfare of the child must be the paramount considerations…. But once you come down to what you mean by welfare… are they social values? The judges’ values? The family with which we are engaged? All three are very different and you may have many interesting decisions to make about what values will prevail at any one time. I was part of a discussion the other day about Christian rights to disobey ungodly laws and I said ‘fine, but you have to give exactly the same right to everybody else. So, if your Muslim brother says the same, you have to support it’. We have to be very careful about this. It is a very difficult one.
Mark Hedley has lived with his family in Liverpool since 1971 having graduated from the University of Liverpool in 1968 and been called to the bar in 1969. He practised the law in those fields that affect those at the bottom of the social pile before becoming a Circuit Judge in 1992. From 1997 to 2002 he was Course Director in Family Law at what is now the Judicial College.
In 2002 he was appointed High Court Judge and assigned to the Family Division, becoming also a judge of the Court of Protection in 2007. He has been a Reader in the Church of England since 1975 and Chancellor of the Diocese of Liverpool since 2004. After retirement in 2013 he is now visiting Professor of Law at Liverpool Hope University.