Law: Back on the bench - for now

With the Law Commission and High Court already on her CV, could Mary Arden be the first female judge in the House of Lords?
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The Independent Culture
Dame Mary Arden is packing up boxes. It is her last day in the office and she has desks to tidy, shelves to clear. She is quitting her squat, modern building off Gray's Inn Road for premises that are a little smarter, at the Royal Courts of Justice.

Since January 1996, Arden has been chairman of a quango called the Law Commission, with the task of keeping the law up to date and relevant. That post has come to an end, and now she is returning to work as a full- time judge in the Chancery Division of the High Court.

The Chancery Division still bears the stigma of Dickens's Jarndyce vs Jarndyce in Bleak House, which dragged on inexorably as the heirs litigated over their inheritance. As she says, "Non-specialists expect Chancery work to involve only the landed gentry, but that is far from being the case." She will frequently have to deal with bankruptcy cases and cases where individuals challenge their local authority. The Chancery Division is also where George Michael's case against Sony was heard, and Paul Gascoigne's contractual dispute took place.

Such cases may be fascinating, but supporters suggest that she will not be staying in the Chancery Division for long. Arden, aged 52, has been widely tipped as the next woman to go to the Court of Appeal (there is currently only one). And with youth on her side, she may even become the first woman judge in the House of Lords.

This is long overdue. It has been several years since a woman was appointed to the Court of Appeal. The last 17 appointments to the High Court and above have all been men. Critics of the current system of judicial appointments, which depends on word-of-mouth recommendations, say that it excludes women.

The former chairman of the Law Commission and her husband, Mr Justice (Jonathan) Mance, are the first husband and wife to work together at the High Court. Arden recalls one lunch time in February 1997, when she received a call from a journalist asking whether she knew that her husband was "last seen being followed by a woman with a gun". The woman, distressed by the outcome of a child custody battle, had pulled out a gun in court. Recalling that incident, Arden is surprisingly calm: "I told them I had no further information," she recalls. "I felt confident that if my husband had been hurt, I would have been told." The gun, it transpired, was fake, but no one knew that at the time.

Following private school in Liverpool, and Girton College Cambridge, Arden studied at Harvard and then joined Gray's Inn. Specialising in commercial law, she took silk in 1986 and became a judge in 1993. She admits that she knew relatively little about the Law Commission before she joined it in 1996. "If you are in practice, then you are keen to know the answer when a client rings - or, as a judge, what you should put in your judgments - but you tend not to know much about how the law is reformed," she says.

The Law Commission monitors common law established over the centuries by the courts, and statutory law passed by Parliament. With its slogan of working for better law, it also makes recommendations to keep the law up to date and relevant.

Since the commission was founded in 1965, 70 per cent of its reports have eventually been implemented, but the process is slow, despite the fast-track procedures for measures which have the support of all political parties. One recent DTI Bill, providing for interest on late payments of debt, stemmed originally from a Law Commission report published as long ago as 1978.

Occasionally, says Arden, there can be a swift progression from research to law itself, as happened recently with a mortgage fraud measure that was included in the Theft Amendment Act 1996. And she has not been slow in handling the criticisms that the commission has faced - her appearance on Radio 4's Today programme showed that she was more than capable of explaining the hurdles it faced.

But since the change of government in 1997, a backlog has built up. The last year of the Conservative government was "fallow", and the Labour Government has been too busy with other legislation to implement some of the outstanding recommendations. The Lord Chancellor, Lord Irvine, has acknowledged that "there is nothing more frustrating for the Law Commission than producing reports which are of high quality and they just gather dust in Whitehall unnoticed."

Since 1968, the commission has had a long-term aim to codify criminal law. "In Canada," she says, "for just $25, you can walk into a newsagent and buy a copy of the code that would probably fit into your jacket pocket. That means that the police - and lay magistrates - can have a copy available to refer to at any time; and also as a matter of principle, it is right for citizens to have an accessible code." Various areas have already been scrutinised, including offences against the person, involuntary manslaughter, computer misuse and rape within marriage.

Last month, the Home Secretary gave the go-ahead to the commission's proposals to allow hearsay evidence - from frightened or intimidated witnesses, or those who have died or are too ill to attend court. That provoked opposition from civil liberties groups - but recent Law Commission proposals relating to divorce also upset groups on the right, so the view is that the commission is probably steering a safe, middle course. Arden predicts that the process of codifying criminal law will be finished within three to five years.

As for what the next few years will bring for this woman barrister's role model, she inevitably plays down talk of further promotion, saying that she looks forward to sitting again in the High Court. She insists that she has not even discussed promotion with the Lord Chancellor. But when pushed to comment about the House of Lords, she admits: "It would be fun", before hurrying back to clearing the shelves and packing the boxes. Who knows where those boxes may be unpacked again in the not-too- distant future?

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