 Mae'n chyfnod â ymddangos ac yn gwneud o'r gwlad. Mae'n ffawr, nid oedd amser i chi gyd yn ymddangos. Yn yma, mae'n Sarah Worthington, ac mae hwn i ni'n ddweud i'r gweithio'n gweithio'r Llyfrgell i'r ffresfiilded Cymbrill anion yn 2019. Mae'n yma'r 5th gyrgyntau eich rhan oedd yn ffresfiilded genesodol ac mae'n ei wneud yn ei wneud y Llyfridogol a mae'n eu bod yn y trafnod ar y Llyfridog Cymru. Rwy'r cerddor y cerddor yn rhaid, wedi ar y cerddor, mae'n gweithio'r cyfrifio ar ei ddiweddau i ddeudio diwethaf, ac mae'n bryd ai'n bwysig i ddweudio'n bwysig i ddweudio'r cyfrifio gydaeiaeth. Mae'n gweithio ddweudio'r gweithio i ddiweddau i ddeudio i ddweudio'r cyfrifio gydaeiaeth, but some of these issues of such significance that the general public becomes enthusiastically engaged in weighing in on the challenges and the difficulties they generate. Use differ, discussions and even arguments into. The difference between these debates over the dinner table and within the seminarroom is that we don't have to decide. Mae gennym o'r golygu gyda y bwysig arlau, ac mae'r golygu yn gweithio'r ysgol yma, yn y fawr o'r cyfrwyng ymddangos o'r llawd, yng Nghymru'r cyfrwyng ym mwyn i'r fawr o bethau o'r cynllun arall. Ond mae'n gweithio'r ysgol a'r drwsfynllun o'r Llyfrgell yn y fawr i'r Llyfrgell, mae hwyl yn gallu prosiectol. Yn y gweithio'r proble, mae'n gweithio'r fawr o'r cwyrdyn nhw mae'n alluniaeth yn unig iawn yn oed hynny, a bod y bydd yn fawr i'n gymuned yn unig wedi'i mor thysgu y bydd y hwn. Ydw'n gwaith, mae'r dwrd agaf, oherwydd mae ei wneud o gwaith cyffredinolau feddwl i'r gweithio. A o ddweud, mae'r ddweud, yma, mae'r Ddy Beefithidai yn gweithio. Mae'r ddondod yn fnw'r myfyrdd i ddod am yna. y dylai'n ei wneud y dylai cyfnodyniadau yn ymraeg yn y cwmpau Cymru, Cwmpai i chi'n meddwl i'ch mewn cwmpai lle oheithio, fe phobl o ddweud. Theo digital yn y turoedd cyfnod a'u allan neu ymchwil o'r cyfeirio llyflol mae'n cael ei gyflwyng ysgolol. Rwy'n gwael i'r cyfnod mewn sefydl iaith iaith a'r prwy chain o'r cyfnod yn y cyfleirio cyfrifol. Mae hyn o'r pwg erioeddoch yn y 5th leffeydd ein bod y pwg erioeddoch a'r anabesri, yna? Mae'r anodd lechder yn y cwmhyselio'r cyfnodd y Prifysgol Cymru, a'r anodd lechder yw Llywodraeth Llywodraeth, Llywodraeth Newberg. Felly, y dyfyniad yn y gweithio, y Gweithfyrdd Gwmhyselio, mae'n gweithio'n gweithio'n gweithio. Baranys Hale wedi gweld yn ymgyrch. Ond ydych chi'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio. A dyna sydd gennym i gyfyrdd Llw relateur a'r llwyddiadau a'r anodd lle mae'r anodd lechder yn gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio. Mi'n gweithio'n Gwbel, dyna'r Ddiogel yn jeithio a pethau'rgweithfyrdd gyda i'ch yr adeilad. Mae o'n gweithio'n wneud i'i gweithio'n ceisio'n gweithio, ond yn sylfilio'n cyfrif. Lady Hale was born and educated in Yorkshire, so northern toughness. She was I was born in Yorkshire so you know I've got a bit of a passion for that sort of thing. She was the second of three sisters and it seems to me that thereafter she was not going to be second again. She studied law here in Cambridge at Gerton and it's really nice to see here tonight all the law fellows and the vice-mistress of Gerton in support. She graduated with a starved first and top of her class. She was called to the bar in Grey's Inn and topped the bar finals in that year and later on became a treasurer of her inn. She spent 18 years in academia, another first for a Supreme Court judge, becoming a professor of law in Manchester. She was the first woman and the youngest person to be appointed to the Law Commission overseeing a number of important reforms in family law during nine years with the commission. She was the first and only woman to be appointed to the House of Lords as the Lord of Appeal in Ordinary, the first woman as a Supreme Court judge, the first woman to be the vice-president of the Supreme Court, the first woman to be the president of the Supreme Court and since last year she's also been the first woman alongside Beverly McLaughlin from Canada to serve as a non-permanent judge in the Court of Final Appeal in Hong Kong and then I think, just to lighten the tone a bit, she's probably also the first woman Supreme Court judge, in fact perhaps the first Supreme Court judge at all to appear in a double-spreading vogue. But enough. Tonight as I said earlier Lady Hale has chosen as her topic, principle and pragmatism in developing private law. She's going to speak and then we're going to have an opportunity to ask questions and answers and as her title suggests I think we're in for a treat and no doubt a few surprises so without more ado Lady Hale, over to you. Thank you very much indeed Sarah for the invitation and for the introduction. I think I should tell you that there are at least three important occasions when I have been second. I was the second woman member of the set of chambers that I joined in Manchester. I was the second woman on the Court of Appeal of England in Wales and I was the second woman treasurer of Grey's Inn. Now one has to say thank you of course to all those first women because without the first woman not having frightened the horses too much you never get to be the second and that was why I was so worried that it took so long for the second woman to join me on the House of Lords Supreme Court. I wondered what on earth I was doing wrong. There we go. So talking of the Supreme Court when designing the Supreme Court of the United Kingdom we deliberately put the library at the centre of the building surrounded by the three courtrooms one on top one to one side one to the other. It contains of course centuries of legislation and law reports. It symbolises an important truth. We are not making it up as we go along. We are building on those centuries of legal learning even if most of us now look them up online rather than physical books. At the same time we probably all agree with Mr Justice Oliver Wendell Holmes' observation quote the law so far as it depends on learning is indeed as it has been called the government of the living by the dead. There is a peculiar logical pleasure in making manifest the continuity between what we are doing and what has been done before but the present has a right to govern itself as far as it can and it ought always to be remembered that historic continuity with the past is not a duty it is only a necessity. On the other hand Holmes also said this it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long sickness and the rules simply persist from blind imitation of the past. So the law has to move at the times up to a point. I have speculated in other talks about the ways in which the court may develop the law to meet changing social and economic needs. Today I want to speculate about what should guide such developments, principle or pragmatism or to put it another way in fact the way that Sarah suggested to me when we first talked about what I might talk about doctrine or policy. I think we are of course the supreme court of the whole United Kingdom. Most Scots lawyers would probably still agree with the great professor T.B. Smith that the unwritten law of Scotland was derived from different sources from the English and gave more weight to principle than to pragmatism. Smith attributed the development of English common law to the fact that the English monarchs established early on their control over the administration of justice. Judges built up the law precedent by precedent. Quote this was essentially a professional law based on the ends of court which were close corporations of lawyers. At quite an early stage these lawyers adopted a semi-insular and self-sufficient outlook and in particular set their faces against the competition of ecclesiastical courts, against the Roman law, against the authority of academic treaties and against a system of professional legal education based on the universities. Can't see that. English private law in his view was the loser from this insularity and case by case approach which led to multiple categorisations rather than general principles. Scots lawyers on the other hand were the opposite of insular. They looked to France and continental European influences, studying Roman law and continental treaties in continental universities. This led eventually to stares institutions of the law Scotland. Quote gathering the various threads of Roman canon, feudal and other customary law which had already been recognised by the courts and drawing upon the learning of Europe's leading civilian commentators stare, restated the law of Scotland in an original selective comprehensive and rational manner. End quote. Now these differences of approach are no longer so closely associated with nationality. There are those of us in England who try to start from a basis of legal principle and those of us who start from a basis of pragmatism starting from the beginning or starting from the end what Stephen Sedley called reasoning from a given conclusion which is what of course all advocates have to do but in my view no judges should. But from whichever end we start we are all guided to some extent by our view of which solution will work best, which will be the most practical both in this case and in others like it. But how do we know what will work best? Back to Holmes on his famous dictum. The life of the law has not been logic, it has been experience. But whose experience? Lord Reed in his famous lecture on the judge's lawmaker where he exploded the fairytale that judges do not on occasions make law, expressed the view that where it was right for them to develop the law they should quote have regard to common sense, legal principle and public policy in that order. But who is common sense and what public policy? I have been known rudely to say that one man's common sense is another woman's hope of posidiousity. That is of course putting it far too strongly. But the point is everybody thinks their experience is the right experience, everybody thinks that what they think is common sense is common sense, everybody thinks that what they think accords with the public interest, accords with the public interest. And I can illustrate this dilemma by recent examples from all three main areas of private law. Contract, tort and dare I include it? Family law? That's private law. Now tort is the most obvious illustration. My first husband used to say that it was void for vagueness. And I think any law students trying to study the law of negligence will sympathise with me for that. The law of negligence is littered with concept redolent of pragmatism. Proximity, fair, just and reasonable, even causation and remoteness. Proximity for example sounds like a principle, suggesting a sufficiently close relationship between two people to found a duty that one should take reasonable care to avoid causing harm to the other. But debate rages over whether it's any such thing. Is it not rather an ad hoc device judicially micro refined by the particular facts of cases and particular idiosyncrasies of the judges hearing them? Fair, just and reasonable is even worse. Doesn't even sound like a principle. And until recently, there's a tendency to think that it governs the whole of the law of negligence and not just novel situations. As Lord Reed explained in Robinson and the Chief Constable of West Yorkshire, the proposition that the fair, just and reasonable test applies to all claims is a mistaken reading of that case. It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Quote, where the existence or nonexistence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable. Subject to the possibility this court may be invited to depart from an established line of authority. Nor a fortiori can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the judge may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty, and he quotes from Lord Justice Pophouse in the case of Perot and Collins, but I won't go on because he says just exactly the same thing. Well, that's all very well, but what are we to make of the wrongful birth cases? Following McFarlane and Tayside Health Board. In the inner house, Lord Cullen said this. In considering the defender's argument that the birth and hence the cost of rearing the child could not be regarded as a loss in view of the incalculably great benefit which a child represents, it's important in my view to endeavour to draw a clear line between the application of principle and the imposition of a policy decision as to what the court should entertain as a loss. He swiftly decided that, as a matter of principle, the costs of bringing up the child were a recoverable loss. He then went on to consider whether there were public policy arguments against allowing it, citing Lord Scarman in McLaughlin and O'Brien. Quote, the distinguishing feature of the common law is this judicial development and formation of principle. Policy considerations will have to be weighed, but the objective of the judges is the formulation of principle and if principle inexorably requires a decision which entails a degree of policy risk, the court's function is to adjudicate according to principle, leaving policy curtailment to the judgment of parliament. Here lies the true role of the two lawmaking institutions in our constitution. By concentrating on principle, the judges can keep the common law alive, flexible and consistent and can keep the legal system clear of policy problems which neither they nor the forensic process which it is their duty to operate are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, parliament can legislate to draw a line or map out a new path. That's the end of the quotation from Lord Scarman. Lord Cullen went on to point out that there were policy arguments on both sides and summarised them. On the one hand is the argument that the rejection of the claim will vindicate the value of human life and the blessings which a child can bring to his or her parents. It avoids the risk of an undue temptation to seek abortion and the risk that a child in later life might discover that he or she was unwanted. On the other hand, there is the argument that these risks are overstated. That a child is not always a blessing. That the ability of couples to choose to limit the size of their family in accordance with lawful and widely available means of contraception should not be ignored and that damages may help to alleviate hardship as well as meeting need. End of quotation. His conclusion was that it was not for the court to assess the relative strength of these arguments. He was not persuaded that there were any overriding considerations of public policy against awarding the pursuers their damages. The House of Lords of course as everyone knows reached a different conclusion. Lord Stain for example was quite clear that policy outweighed principle. He said it's possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parents claim the cost of bringing up Catherine must succeed. But will they also approach the case from the vantage point of distributed justice? It requires a focus on the just distribution of burdens and losses among members of society. He was firmly of the view that commuters on the underground that's his substitute for the man on the platform on the bus. Of course he's incredibly London centric and probably in those days also sexist would say that the parents should not recover the costs of bringing up the child they never meant to have. I have no idea how he knew that. My guess is that the male commuters might have a different view from the female but of course I could be wrong about that too. That's by the way. Can it be right to set the views of a random collection of commuters against the application of long and well-established legal principle? In my view Justice Michael Kirby of the High Court of Australia was right when he commented that McFarlane was an activist decision. Activist is usually a term of abuse. It's not necessarily in my book but nevertheless he was pointing out that they had done something bold in the interests of policy as they saw it. But the saga continued with Parkinson and St James and Seacroff University Hospital NHS Trust. The Court of Appeal permitted the claimant to recover the extra costs of bringing up a disabled child. The reasons given in McFarlane for denying what would on normal legal principles be recoverable were various and elegantly expressed but all arrived at the same result. At heart it was a feeling that to compensate for the financial costs of bringing up a healthy child is a step too far. But the notion of a child bringing benefit to the parents is itself deeply suspect smacking of the commodification of the child regarding the child as an asset to the parents. The defendants didn't appeal the Parkinson case but the saga ends with Reese and the Darlington Memorial Hospital NHS Trust where the mother was disabled and the child was healthy. The Court of Appeal awarded her the extra costs to her of bringing up the child which were occasioned by her disability. She was blind and obviously it was going to cost her a great deal more to bring up the child. This time the defendants did appeal. The House of Lords rejected the mother's attempt to overturn McFarlane altogether. They also rejected my attempt to try and devise a principle from McFarlane, the so-called what I call the deemed equilibrium between the cost and the benefits of a healthy child to healthy parents. They balanced one another out. They preferred to take the fair just a reasonable route of course because you could do what you like. As indeed they did. Three of the seven Law Lords, Lord Stane, Hope and Hutton, would have held that this too should be an exception to the McFarlane rule so that the mother should have her extra costs. The majority however, Lords Bingham, Nichols, Millerton, Scott held that the rule must apply to the birth of a healthy child. The key point was the birth of a healthy child. But they invented a wholly new remedy. An award of a conventional sum put at £15,000 to recognise the invasion of the mother's right to live her life in the way she had planned. They attributed this recognition of the serious loss of autonomy to Lord Millard in McFarlane. I do dare to hope that my own prolonged account in Parkinson of what having a child means to a woman may have had some effect. They didn't give me the credit for it. But they used it to invent as I said a wholly new and unprincipled remedy. This whole saga is a barely clear example of pragmatism tramping over legal principle. A more difficult example, principally from the law of contract, is the saga of the Supreme Court's development of the law of illegality. This whole area of law is based on a maximum of public policy that no court will lend its aid to a man or indeed a woman who founds his cause of action on an immoral or illegal act which can defeat what would otherwise be a good claim in contract to optical restitution. Incidentally, I was told to my horror that the Cambridge contract syllabus no longer includes the law of illegality. Well, I hope that's wrong because it's horrifying because it's so much a matter which tests all sorts of legal principle but never mind. Now this was an area in which unusually the law commission had spent a long time investigating the illegality defence and it had declined to recommend legislative reform on the ground that the courts seemed to be developing the law in the right direction and so they encouraged the courts to go on developing the law for themselves. This was clearly an area of judge made law where the judges had got us into a mess and Parliament was most unlikely to get it out of it so it was for the judges to try and get it right and of course the thorough investigation by the law commission was a great help to the courts in doing so. The law commission report came before the trilogy of Supreme Court cases, Hunger and Allen, Les Laboratoires Serrier and Bilter which had revealed differences of opinion within the Supreme Court itself. One side favoured the reliance rule in Tinsley and Milligan. If you could plead your claim without relying on the illegality you could recover, if not, not. The other side favoured an integrity of the legal system approach. What was the purpose of the prohibition which had been transgressed? Would it enhance that purpose to deny the claim or not? Are the countervailing public policies? Would it be proportionate? So those were the two camps and in Patel and Mercer a nine judge panel was assembled to try and resolve matters. It's a lovely story. Mr Patel gave Mr Mercer £620,000 in order that he could place bets on a bank share price with the benefit of insider information which Mr Mercer expected to receive from his contacts. Clearly an illegal transaction. Mr Mercer's expectation was not realised and so the intended betting did not take place. But Mr Mercer did not return the money to Mr Patel. He hung on to it. Mr Patel sued for its return. So did the illegality involved in the enterprise, the insider dealing, bar the claim to get his money back? The Supreme Court unanimously agreed in the result. Mr Patel should get his money back by application of the law of restitution. But there were differences of approach to the impact of adoption of illegality. The majority, Lord Toulson gave the main judgment. The others were Lord Newburger and me, Lord Kerl, Lord Wilson and Lord Hodge upheld the range of factors integrity of the legal system approach. Whereas the minority, Lord Mans, Lord Clark and Lord Sumtrin adopted a rule-based approach, the Tinsley and Milligan approach. The majority held that behind the illegality doctrine were two broad policy reasons. First, that a person should not be allowed to profit from his own wrongdoing. And second, that the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand. The long-standing and much criticised rule in Tinsley and Milligan was overruled. The majority emphasised that the court in taking account of various relevant factors was not free to decide a case in an undisciplined way, rather the public interest is best served by a principled and transparent assessment of the considerations identified. The seriousness of the conduct, its centrality to the contract, whether it was intentional, whether it was a marked disparity in the party's respective culpability, instead of the more formal approach advocated by the minority. This is because the formal approach was capable of producing results which may appear arbitrary, unjust or disproportionate. The minority, on the other hand, held that the mix of factors approach would not offer the same coherence or certainty and, quote, converts a legal principle into an exercise of discretion in the process exhibiting all the vices of complexity, uncertainty, arbitraryness and lack of transparency which Lord Toulton had attributed to the present law. He's been a coin, don't you? I don't think it's a coincidence that it was the three commercial lawyers who formed that view, but maybe I'm wrong. In their view, the proper response of the Supreme Court was to supply a framework of principle which accommodates legitimate concerns about the present law. We will be doing no service to the coherent development of the law if we simply substituted a new mess with the old one. Now, was it the majority or the minority who were being pragmatic here? The goal of justice or of certainty could both be said to be pragmatic aims. The first recognising the impossibility of creating a satisfactory rule without regard to the circumstances and the impact of the illegality. The second recognising the need for politicians to be able to predict the outcome of the claim. Now, one answer could be that the statute laying down the particular requirements in the transaction of particular types of business to specify what the civil consequences of failure to comply with those requirements will be. That's the obvious answer, but of course they don't always do so. But even if they are prepared to do it, it may well do so in terms which leave a discretion to the court. Thus, in our recent decision in the case called Wells and Divani, an estate agent who already agreed to try and find buyers for the flats which the owner urgently needed to sell did not supply the vendor with his written terms of business, including his commission rate and the occasional which it would become payable until after the buyer had been introduced. This is contrary to the requirements of section 18 of the Estate Agents Act 1979 and accompanying regulations. Section 18 subsection 5 provides that failure to comply renders the contract unenforceable unless the court orders otherwise. But if the agent applies to the court to enforce the contract, section 18 subsection 6 provides that the court may only dismiss the application if it considers this just. Having regard to the prejudice caused to the client and the culpability of the agent, where the court does not dismiss the application, it may order that the sum payable be reduced to compensate the client for the prejudice caused. The trial judge reduced the agent's commission by one third. This looks very like the majority approach in Patel and Mercer, doesn't it? But with the added ingredient of the power to make a deduction. Could the commoner all be flexible enough to include a power to make a deduction? Well, some of the things they get up to you never know. It's an example of the intractability of that particular problem. My third example, one very dear to my heart, is marital agreements. Now the common law recognises that there is a public interest in ensuring that married couples fulfil their financial obligations to one another so that the burden is not thrown upon the state. The common law also used to recognise that married couples had an enforceable duty to live together, although that duty was more easily enforced by the husband than by the wife. But the spouses might agree to relieve one another of that duty and might also agree the financial terms of doing so. Once the validity of separation agreements was recognised, the common law drew a distinction between agreements between couples who were already separated or were about to separate and agreements for a possible future separation between them. Separation agreements were generally regarded as a good thing. They mitigated the harmful effects of separation upon the dependent spouse and any children. They might well make better or more flexible provision than a court had power to make. Hence, they were enforceable by the parties. Although if there were matrimonial proceedings, they could not oust the jurisdiction of the court to order that proper provision be made. And following recommendations made by a Royal Commission in the 1950s, a statutory power to vary their terms was introduced to cater for changes in circumstances since the agreement was made. Pre-separation agreements, on the other hand, whether made before or after the marriage, were generally regarded as a bad thing on thus contrary to public policy. They were catering in advance for a possible breach of the obligation to live together. They might even encourage the couple to separate. Now, that policy was applied both to pre-separation agreements made during the marriage and pre-marriage agreements catering for the possibility of separation or divorce should the couple marry. And the rest of the Commonwealth world adopted the same approach. Then came the case of McLeod and McLeod on appeal from the Isle of Man to the Judicial Committee of the Privic Council. This concerned a post-Nutual Agreement, which would be made while the couple was still living together and when they separated was put into effect. Then they divorced and the wife was claiming what she regarded as full financial provision on top of what she'd got from that agreement. The husband mounted a full-scale attack upon the Commonwealth's approach to pre-separation agreements. The Board, the Judicial Committee, took the view that it was not open to them to reverse the long-standing rule that anti-Nutual Agreements were contrary to public policy. We said, there is an enormous difference in principle and in practice between an agreement providing for a present state of affairs which has developed between a married couple, an agreement made before the parties have committed themselves to the rights and responsibilities of the married state, reporting to government what might happen in an uncertain and unhopeful future. On the other hand, post-Nutual Agreements are very different from pre-Nutual Agreements. The couple are now married. They have undertaken towards one another the obligations and responsibilities of the married state. A pre-Nutual Agreement is no longer the price which one party may extract for his or her willingness to marry. We went on to say that there was nothing to stop couples entering into binding contractual arrangements governing their life together, provided, of course, that they manifest an intent to create legal relations, but this couple had done that by making a deed, or an agreement to govern their life apart when they separated. So why should they not be able to bind themselves in advance of their separation? Couples no longer had an enforceable duty to live together, so the old policy against encouraging their separation no longer held good. And the statutory power to vary agreements, if there was a change of circumstance, applied to any agreement made between a married couple, whether before or after their separation. So the board held that the agreement was valid and enforceable, except that it couldn't house the jurisdiction for the court. But the court should give it the same weight that it would give to a separation agreement, which would normally be respected in the absence of unfairness in the circumstance in which it was made, or a subsequent change in circumstances. Now was that development pragmatic or principled? Well, whichever it was, I thought it was quite principled at the time, but I was very soon hoist with my own patard. Sorry, the board's judgment was delivered by me, of course, but in a case called Radmaka and Granatino, there, the majority of the Supreme Court wholeheartedly agreed that the old rule that agreements providing for a future separation, a contrary to public policy, was obsolete and should be swept away for the very reasons that we gave. However, they would have restricted to post-nuptual agreements. They disagreed with both of the reasons which we had given for drawing the distinction. First and most alarmingly, they disagreed about the power of variation. Now, if they had held that the power also applied to anti-nuptual agreements, which is a tenable view, then I would see that it could go a long way towards mitigating the problem. But instead, they doubted whether the power of variation applied to any pre-separation agreement, which of course makes matters look great deal worse. Second, they didn't agree that there was always a difference between anti- and post-nuptual agreements. Well, I think I would agree that there isn't always a difference, but I strongly disagreed. The case seemed to me to raise policy issues which could not and should not be resolved by a court deciding a particular case, especially a case which had such unusual facts. I said, this is a complicated subject upon which there is a large literature and knowledgeable and thoughtful people may legitimately hold different views. Some may regard freedom of contract as the prevailing principle in all circumstances. Others may regard that as a 19th century concept which has since been severely modified, particularly in the case of continuing relationships, typically, though not invariably characterized by imbalance of bargaining power, such as landlord and tenant, employer and employee. Some may regard people who are about to marry, as in all respect, fully autonomous beings. Others may wonder whether people who are typically, although not invariably in love, can be expected to make rational choices in the same way that businessmen can. You're not expected to make rational choices about love, are you? Sorry, there we go. Otherwise, none of us would ever get married or have a relationship. Some may regard the recognition of these factual differences as patronising or paternalistic. Others may regard them as sensible and realistic. Some may think that to accord a greater legal status to these agreements will produce greater certainty and lesser cost should the couple divorce. Others may question whether this will, in fact, be achieved, save at the price of inflexibility and injustice. Some may believe that giving greater force to marital agreements will encourage more people to marry. Others may wonder whether they will encourage more people to divorce. Perhaps above all, some may think it permissible to contract out of the guiding principles of equality and non-discrimination within marriage. Others may think this is a retro-gates get likely only to benefit the strong at the expense of the weak. In 1834, Burrow Jay pronounced against arguing too strongly on public policy because, quote, it is a very unruly horse and once you get astride it, you never know where it will carry you. End of quote. Well, if ever there was an unruly horse, it was Radmaca and Granatino. But which side was being principled and which pragmatic? In fact, we were both being pragmatic as we saw it. And a very fine illustration it is of the dangers involved. After all, in neither McLeod nor Radmaca did we need to decide whether or not the agreements were enforceable as contracts. Both cases were about the weight to be given them by the court deciding what orders to make in divorce proceedings. In McLeod, we could have decided that a post-marital pre-separation should usually be given the same weight as a separation agreement without undoing the old public policy rule. What the majority in Radmaca would then have decided, I cannot say. But they would perhaps have been less likely to change the law on enforceability. Pragmatism is as unruly a horse as public policy. Indeed, I am not sure what the difference is. The dangers are obvious. Now, it may be that I am suffering from cognitive dissonance in this context, as well as in the constitutional context where I've been accused of it. I'll come back and talk about cognitive dissonance in the autumn, I think. But I think that my caution stems from having had the experience both of law reform of the law commission and deciding the hard cases in the Supreme Court. Generally speaking, the incremental approach from established principle is to be preferred to imposing the court's own choices, which are clearly based on practical or policy considerations rather than on principle. Although I took a different view from the majority in the case of Michael and the Chief Constable of South Wales, I welcomed the fact that the majority decided against a police duty of care towards a person whose life they knew to be at risk, not on the basis of policy reasons, which had largely been exploded, but on the basis of principle. Generally, there is no liability for omissions and no duty to protect from the unlawful acts of third parties. The McFarlane saga is a very good example going the other way. The lower courts in England and Scotland had reached a result by applying conventional principles. If Parliament or the public didn't like it, then Parliament could have changed it. Instead, in Greece, the majority had to resort to an extraordinary device to row back from the unjust results of the earlier policy-based decision. I would also say that McCloud, Radma Khasarga, is a good example. The practical and policy arguments were even more complicated and there are aspects to the problem which are much more susceptible to legislative solutions than to judicial pronouncement in individual cases. What prior safeguards should be required? What variation powers should there be? What exceptions, if any, should be made to cater for need? What, if any, power should the court have to depart from the agreed arrangements on divorce and so on? Loads of policy questions. Better for the solution by Parliament. But what about illegality? That's the really hard case. Experience had shown that a one-size-fits-all approach simply wouldn't work, given the wide variety of situations in which the question can arise. Experience had also shown that attempts to devise a single legislative solution also wouldn't work. Legislative solutions are best tailored to the particular legislative scheme establishing the illegality, as the estate agents have shown. And they might very well entail the same sort of flexible flexibility as in Patel and Merza. So I'm not sure whether I was being consistent in joining the majority in the illegality case, having been resistant to it in Radmaeco and in, of course, the McFarlane saga. So I offer a final word from Lord Kerr, dissenting in Michael. He said, a decision based on what is considered to be correct legal principle cannot likely be set aside in subsequent cases where the same legal principle is in play. By contrast, a decision which is not the project of, in the words of Lord Oliver, any logical process of analogical deduction holds less sway, particularly if it doesn't accord with what the subsequent decision maker considers to be the correct instinctive reaction to contemporaneous standards and conditions. Put bluntly, what one group of judges felt was the correct policy answer in 2009 should not bind another group of judges even as little as five years later. You have been warned. Thank you. Lady Hale, vice chancellor, members of the judiciary, the faculty and the student body, and others here present. I have been interested with a suitably simple and straightforward undemanding task, but one that is no less important or pleasurable for that. It is to offer my sincere thanks to Lady Hale on behalf of Freshfields, members of this very fortunate audience present and future viewers of the lecture once Dan Bates has worked his magic and the lecture will be available to view on the faculty website. I do wonder if Lady Hale might one day tire of being not only a DBE, Dane Commander of the British Empire, a P.C., prebi-cancelor, but also the F.W.H., the first woman who. We've heard examples from Sarah, Law Commission, House of Lords, Supreme Court Justice, President's Supreme Court, and now to capitol the first woman to deliver this lecture. And in the year when which we celebrate 100 years of women being admitted to the legal profession in the United Kingdom and on the eve of International Women's Day 2019. It is wonderfully appropriate. It could almost have been planned that way. Charles Dickens had something to say about principle and the law, as he bemoaned the fate of the unfortunate litigants in Jandais and Jandais in Bleke House. One of the one great principle of the English law he observed is to make business for itself at the expense of the laity. There is no other principle so distinctly, certainly and consistently maintained throughout all its narrow turnings. We are immensely grateful to Lady Hale for sharing with us a more reassuring description of the role that principle plays in the legal profession and the influence of law, twinned with the influence of pragmatism that you've so carefully and eloquently explained. The study of law as an undergraduate, at least in my fading memory, also required some balancing of those two concepts. There are only so many principles it was possible to commit to memory, what with everything else going on as an undergraduate. Yet it was possible to deploy those principles, or the few of them that stuck in the memory liberally in answer to pretty much any question whether to do with tort, contract, family law or anything else. But bearing in mind the anniversary, I've mentioned it's surely fitting to pay tribute to Lady Hale who has been an uncompromising champion of diversity in all its forms, a trailblazer and a role model for so many, her self-combining principle and pragmatism in her approach to promoting gender balance, ethnicity and social mobility in the law up to and including the composition of our highest domestic court. She's been a clear-eyed proponent of equality of opportunity, but an opponent of positive discrimination. Interviewed for the Guardian newspaper at the beginning of this year, Lady Hale expressed the hope that the judiciary would attract more people who have had less privileged lives whilst at the same time noting that it's possible to have a privileged life without coming from a privileged background. That sentiment surely chimes with Cambridge's outreach ambitions and activities which are shared by those of the law firm that I represent and many others in hoping to attract the best talent into the legal profession. But whatever our respective backgrounds, we have indeed been privileged to be part of this audience and to hear the views of someone at the very top of that profession to deliver such a wonderful exposition of the subject. Please join me in thanking Lady Hale for delivering this year's lecture.