Dr. David Kenny:

It is interesting because, when issues like diversity were considered in England and Wales, Lady Hale of the Supreme Court said it was now so widely accepted in ordinary conversation that personal background does play a role in deciding cases that it no longer needed to be controversial. I wonder if that is the case here. While it is not universally true, there is a perception that we have a Judiciary that believes there is a sort of set of legal skills one can use to decide cases in the best way, and this can be acquired by anyone. I would certainly be of the view that, in questions of constitutional law in particular, though in many other areas of law as well, how one reads the Constitution, what one thinks it is for and the purpose and values that it stands for, are things that matter in terms of how one interprets it and how one reads it. Those things can then have a net effect on the outcome of certain cases. There is a variety of both theoretical and academic literature in the United States talking about precisely that question, and many senior judges in the United States would quite freely acknowledge that in the most difficult cases, social vision, what one thinks society is trying to do, can play a role. This is something that has even been accepted broadly in England and Wales and it is something we should accept as being the case here. We should not deny it; we should accept it is always going to happen.