Lady justice: is the judiciary ready for Brenda Hale?

Brenda Hale is telling a story. “Would you like to know what really happened?”, she asks, leaning towards me across a low coffee table, the wall behind us lined with law reports bound in red and burned orange. There’s something deliciously conspiratorial about the way the President of the Supreme Court asks this question, the promise of something juicy to come.

The story concerns an incident when Hale, then a High Court judge, was staying in official judges’ lodgings, while on the circuit outside London. “There were only six women High Court judges [out of a total of around 70], and they hadn’t really worked out what do to do with a judge who happens to be a woman,” she explains. The lodgings—and the entertainment—were run “very much along the lines of upper middle-class households between the wars.”

Female judges were thus expected to retire to a separate room after dinner, leaving the other judges uninterrupted with their port and male conversation. Hale observed the rule for some time with great annoyance. “When you first join something, you don’t make waves straight away,” she explains. “I went along with it in a very grumpy way! Which is the worst of all possible worlds.”

But one day, a younger female barrister was present. “The junior of the circuit was among the guests for dinner, and I thought, this bright young woman barrister should not be excluded,” she says. “It was because of her that I plucked up courage [to say] we are not leaving.” But there is a twist. Several years later, Hale met the same barrister again and she remembered the incident very differently. “Here was I telling her to do something, which she thought might not endear her to the male judges present. I had put her in a difficult situation.”

But then, by simple dint of being the only woman on her path to the top, Hale has often enough put herself in tricky situations too. It has, some close to her say, taken its toll. “She is a totally fascinating woman, but I found it difficult to work with her,” said one former colleague—who didn’t want to be named—of her time working with Hale. “You have to be obstreperous as a woman to get there, to break that glass ceiling. It’s painful, it leaves you with cuts.”

Hale was the first and only woman to become a law lord, one of 12 judges who occupied a nondescript corridor in the House of Lords. The peculiarly British (and constitutionally problematic) quirk of housing the UK’s highest court within the same building as the legislature finally came to an end in 2009, when—with no small amount of input from Hale—Britain’s highest court moved into its own specially designed and rebranded Supreme Court across the green on Parliament Square.

Hale continued to be the only female justice, and this autumn, this small, modest women—who has described herself as suffering from “imposter syndrome”—saw off some alpha male competition to follow Nicholas Phillips and David Neuberger to become the Court’s third president.

Still less than a decade old, the Court is still working to cement itself in the public imagination—indeed most politics watchers in the UK probably know more about the Supreme Court in the United States than our homegrown version. Hale’s role as president may not be as high profile as that of a chief justice in the US, but as the experience of the late Thomas Bingham—who served as the senior law lord until 2009—shows, the top judge can make a difference. He developed a newly-rich concept of the rule of law, and applied it in various landmark rulings that constrained the state’s draconian crackdowns after 9/11.

In the post-Bingham landscape, it is at least possible that the new president of the Supreme Court will also be remembered for something like the “Hale Doctrine.” Hale is not afraid to refer to “my brand of feminism,” a statement that would have been inconceivable to imagine a senior judge making a generation ago. With family cases among the first tranche to be considered by the Hale Court, could issues surrounding gender equality eventually prove to be her legacy? And are we about to embark on the kind of politicised judicial activism that causes such controversy in the US Supreme Court?

 

Hale’s path to the heights she has reached today started in Leeds, where she was born in 1945. She spent the first part of her life living in the boarding house of a boys grammar school where her parents both worked at the time. The young Hale excelled at school from the outset—the only pupil in her primary school class to pass the eleven-plus, enabling her to attend a girls grammar school in Richmond, a historic market town on the edge of the Yorkshire Dales. From there she won a scholarship to Girton College, Cambridge—placing her among the select few women reading law at the university—and graduated with a starred first. Despite her grades, it was at Cambridge that the imposter syndrome first struck. “I can remember pinching myself,” she tells me. “There I was, walking down King’s Parade, [thinking] what am I doing in this wonderful, beautiful place? What am I doing here?”

Self-doubt never hampered Hale’s ambition, however. Others who know her, say she was supremely driven from the off. When she entered academia in 1966 she chose Manchester University, one of the few that encouraged its academics to combine teaching with practising in Chambers. That allowed her to start off down the path towards her eventual judicial career.

In between, she published no fewer than five textbooks on family law, mental health law and women and law. The books broke new ground, and she was soon applying disruptive ideas in the courtroom too. In one of Hale’s best remembered decisions, Yemshaw v Hounslow, a woman had left the family home with her two young children in response to her husband’s abusive behaviour, but the council—and the Court of Appeal—found that she didn’t qualify as a person suffering domestic “violence” because her husband had never physically attacked her.

“Was this,” Hale asked, “a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider?” Hale’s decision expanded the definition of domestic violence, laying the way for a broader understanding that prevails today.

It is one of many interpretations that has brought her into sharp conflict with the press. “Thank Goodness Lady Hale has never set foot in our home, or I’d be sleeping under Blackfriars Bridge tonight. I am, you see, guilty of domestic violence: I shout at my husband on a regular basis,” wrote Cristina Odone in the Telegraph. “This judge is an ass!”. “The marriage wrecker,” screamed the Daily Mail, in an article by Melanie Phillips in 2003, deploring the fact that long before it was politically mainstream, Hale recognised gay partnerships and improved legal rights for heterosexual cohabitants.

Hale’s views on marriage again came to the fore in 2011, when a German heiress appealed to the Supreme Court to enforce a prenuptial agreement against her French ex-husband. Until that point, pre-nups were not legally enforceable in England and Wales. The case led to intense scrutiny of Hale’s perspective—the only woman on the court and the only judge who stood in dissent against recognising pre-nups. She saw them as “a retrograde step likely only to benefit the strong at the expense of the weak.” The case had, Hale exclaimed pointedly, “a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman.”

Even Hale’s critics recognise that the perception of judges, as representative—in some vague but important way—of the people they sit in judgment over, plays a crucial, legitimising role in a democratic system. Recent events suggest that when society is divided, the judiciary is not immune from becoming a battleground, in which the question of what the people’s views truly are, is played out.

Since Brexit, the judiciary has been in the cross hairs of sections of the press, as the toxic question of whether parliament should have a vote on Article 50 came before the courts. The prospect of “out of touch” judges wielding the power to quash the referendum result, as some saw it, led to an unprecedented amount of anti-judiciary sentiment. “Enemies of the people!” declared the Daily Mail, underneath photographs of the three High Court judges who initially reached the decision that parliament should indeed have a vote. Hale tells me she found that article a “shocking and potentially very dangerous to do. Of course the press have got a right to say whatever they like. But other people have got a duty to tell them that they are wrong.”

She sees a similar duty to tell judicial colleagues when they are wrong, regarding dissent as a “healthy” part of judicial business. But at times, when Hale has been involved, dissent has gone sour. In 2011 Elaine McDonald, who decades earlier had been a Prima Ballerina from the Scottish Ballet, appealed to the Supreme Court after the night time carer that her local authority had provided, so that she could go to the toilet in the night, was replaced by a far cheaper plan of supplying her with incontinence pads. The House of Lords—as it then was—decided that this was a practical and appropriate solution.

Hale was the lone dissenting voice, finding the use of incontinence pads for someone who was not incontinent, irrational. “In the United Kingdom we do not oblige people who can control their bodily functions to behave as if they cannot do so,” she said, suggesting that to find otherwise could leave others who needed help to go to the toilet at night lying in their own faeces until morning. “We are, I still believe, a civilised society,” Hale added.

That might sound hard to argue with. But, to keep themselves out of hot political water, public lawyers define “irrationality” according to an exceptionally stringent test, especially where public funds are concerned. Fellow, male, judges made no secret of their disdain for her view. “Nothing short of remarkable,” wrote one. Another went even further. “I find it rather regrettable that Lady Hale’s judgment makes so many references to defecation,” said Lord Walker. “I totally disagree with, and I deplore, Lady Hale’s suggestion.”

“There was something that I said in my judgment,” says Hale, “that touched a nerve, and produced a reaction, which was much stronger than is normal. And in normally mild-mannered people.”

If the judicial telling off from Hale’s peers in the McDonald case was in any way meant to silence her, it failed abysmally. She said of her fellow judges in a speech on diversity more widely, “few, if any…  are actively misogynist or racist: but they have a lamentable lack of experience of having female or ethnic minority colleagues of equal status. They often simply do not know what to do with us or how to interpret what we say.”

While Hale has been a lone female voice on the nation’s most senior bench, the ethnic minority voice has been non-existent—it was only this year that the first non-white judge was appointed to the Court of Appeal. “It could have happened earlier,” Hale says, adding, “I am sceptical of the trickle up theory.” Hale says she supports affirmative action, which involves widening the pool from which judges are recruited, and to some degree positive discrimination, which involves taking factors like ethnicity into account when making appointments.

These views have brought Hale into public disagreement with another prominent voice on the Supreme Court—Jonathan Sumption—a prolific, prominent and top-earning QC, before he was appointed directly from the Bar to the Court in 2011. In a speech the year of his appointment, Sumption argued that positive discrimination was “patronising” to minorities, and might deter white male candidates from applying, for fear of being discriminated against. “I tend to think that the judiciary would be better off without prima donnas who might not apply for such reasons,” Hale said, in a speech that made no secret of what she thought of Sumption’s point of view. In spite of these clashes, Hale insists interactions between the justices are mostly good humoured. “We are a very friendly bunch. We do have healthy disagreements from time to time. They are usually very good tempered ones,” she says.

Yet the ghosts of the old male-dominated High Court judges’ lodgings seem still to be lurking. One of Hale’s more recent battles has been the fondness of her colleagues to relax at the Garrick Club. “My objections to the Garrick is not to a men-only club,” Hale insists. “It’s to judges being members of a men-only club. I mean they wouldn’t dream of being members of a club that excluded people from ethnic minorities, they wouldn’t dream of being members of a club that excluded gays, but for some reason they seem to think it’s okay to be members of a club that excludes women.”

“It is a club to which a lot of lawyers and judges belong. And so it means that you’ve automatically got access to gossip and knowledge of people, that people who can’t be there don’t have.”

I ask Hale about the time she described the Court of Appeal—where she was one of only two women in her time—as “a bit macho.” “Well it was!” she insists. “I mean there are nine women out of 39 now, and that’s a critical mass. It makes a big difference. And of course women are all different from one another as well. That’s why it matters to have quite a few of them. So it’s not just a woman being the women.”

Hale has always been clear about not wanting to be the woman, hoping others would follow suit. The academic Erika Rackley, whose work on gender in the judiciary has been widely cited, not least by Hale herself, has compared the position of the female judge to the fairytale character the Little Mermaid. “Her physical appearance threatens to upset aesthetic norms; her presence is an inescapable irritant, simultaneously confirming and disrupting the established masculinity of the bench,” writes Rackley. “She is so deviant that… like Andersen’s mermaid, she is induced to deny herself and sell her voice; her dangerous siren call is silenced and in the silence difference is lost.”

Hale, it is quite clear, has no intention of becoming the Little Mermaid, drawing unapologetically on her difference, not just in her judgments, but even in her clothes. When the justices put on their ceremonial robes, Hale, and Hale alone, dons a distinctive, floppy black cap. “It’s an academic bonnet basically, because we are an academic court,” Hale says, distinguishing this view from the old full-bottomed wig traditionally worn by the senior judiciary, which she describes as “just ridiculous.”

Hale’s visibility may help the public also internalise the idea that there is a woman at the top of the judiciary. “I can’t remember how many women are in the Supreme Court,” Kenneth Clarke once told a parliamentary committee, quite remarkably since he was at the time the Lord Chancellor, and so constitutionally responsible for the justice system. “One,” replied the barrister David Pannick. “One, is it?” Clarke replied. “It remains a priority.”

Feminists will cheer Hale’s appointment, but it would be wrong to imagine she is about to embark on the most constructive (and controversial) forms of interpretation associated with US liberalism. There is the case of N—in which a woman with HIV/Aids who had been kidnapped by rebels then raped by security services in Uganda was denied asylum by Hale and her fellow justices. It was, Hale said in her judgment, one of the “sad cases where we must harden our hearts.”

This too is part of the burden of the judiciary, Hale says. “I regret some of the decisions I’ve had to take,” she tells me. “There are things that we have to do, because it is the right thing to do—in accordance with the law, in accordance with the facts, in accordance with one’s duty—but they are not necessarily things that you want to do.” She is also, surely, mindful that it is only by sticking to the letter of the law that she can keep her still young office and court above the political fray.

Hale comes across as upbeat and energetic. When we meet she is wearing a royal blue dress, with beautifully pleated and fluted sleeves, set off by an elegant frog brooch—“a gift from my lovely husband.” Hale is married to Julian Farrand, a fellow law commissioner who went on to become the pensions and insurance ombudsman, and has a daughter, Julia, and two grandchildren. The experience of being a mother has also influenced her judgments.

“From the moment a woman conceives, profound physical changes take place in her body and continue,” she said in a Court of Appeal judgment about a disabled child born in circumstances of medical negligence. “The responsible pregnant woman forgoes or moderates the pleasure of alcohol and tobacco. She changes her diet. She submits to regular and intrusive medical examinations. She takes certain sorts of exercise and forgoes others. She can no longer wear her favourite clothes… The process of giving birth is rightly termed ‘labour.’ It is hard work, often painful and sometime dangerous.”

The coming months will test the role of these personal perspectives. The Supreme Court is currently considering whether Northern Ireland’s prohibition on abortion violates the UK’s human rights laws, a case with far-reaching constitutional and political implications. And many lawyers believe that the mire of legal issues thrown up by Brexit will end up being fought out by the Court.

“We don’t want to have to make decisions which really ought to be made by parliament,” Hale says, wearily. “Obviously I’m completely neutral about the pros and cons of leaving the Union, but there’s no doubt that there are large areas of law that have been fundamentally transformed by the EU,” Hale adds, citing equality law, environmental law, and health and safety.

Since becoming the Supreme Court’s president in October, this modestly mannered woman has witnessed, she tells me, an unexpected outpouring of public excitement.

“It has proved much more important to people outside the court than we thought it would be,” Hale says. “The waves of enthusiasm that have come from women, from other under-represented groups, from the young, have quite surprised me.”

“There is something about being the leader that has caught people’s imaginations.”