I'll answer the questions: Lady Brenda Hale
When I was a child in the mid 1970s my mother was somewhat out of the ordinary in our community. She went to work. As such I was labelled amongst other things as a “latch key kid”. It was still even in the mid 1970s the norm for most women, well certainly in Kent to stay at home and ‘look after the family’. But things have moved on somewhat in the intervening period. There has been a period of catch-up for women in all professions. A climate of equality between the sexes, so to speak. But perhaps rather surprisingly (or not) the legal fraternity has been somewhat slow in inviting women into its ranks. It was only in 1962 that Elizabeth Lane was appointed as the first female county court judge and not until 1988 that Elizabeth Butler-Sloss became the first woman judge in the Court of Appeal. Now finally the last bastion of male hegemony has been breached: Lady Brenda Hale has become the first woman to enter that most austere of legal clubs: the Appellate Committee of the House of Lords. Heady times indeed for women everywhere.
Lady Hale’s story is all the more remarkable because her background was more academia than practising barrister. So when I met her recently in the House of Lords I started by asking her why she chose such a male dominated profession (as it was then):
“My Headmistress was convinced that I had the ability to go to Oxford or Cambridge and I thought of Law, and instead of her saying ‘oh, rubbish, girl’ or ‘girls don’t do Law’ or ‘nobody in your family does Law’ she actually said ‘what a good idea, but there’s not much we can do to help you’, but she did encourage me. And I was right. It was the right subject.”
Lady Hale born in 1945 was brought up in North Yorkshire. Her father the headmaster of a small boys’ boarding school whilst her mother “was in that generation of women, who qualified as teachers between the two World Wars and were really quite emancipated in their whole approach to things, as were indeed their husbands, but who were obliged to give up work when they married.”
But circumstances were unfortunately to change that situation “when my father died, when I was thirteen, she picked herself up and dusted down her teaching certificate, and became the headteacher of the local primary school. She was quite a remarkable woman”.
Perhaps it was her mother’s motivation which gave Lady Hale the drive to embark on in fact three different careers.
“After Cambridge I went straight to Manchester University as an Assistant Lecturer, as they then were, to teach Law. Whilst I was a student I had contemplated but rejected trying for the Bar, because I had no money and no connections and so on and so forth. But one of the attractions of Manchester was that they said at the interview ‘we would like you to take the Bar exams and do a pupillage and have some practical experience alongside the academic work’ so that is what I did”
Fortune favoured her. She spent the following three years in part-time practice at the Manchester Bar and at the University lecturing. Upon the advice of her then dean of law Julian Farrand she opted to concentrate on academia. A decision she was presumably not too upset with – she was later to marry Farrand.
It was however following her return to full time academia that her judicial progression really took off.
“Yes, there was a natural progression. Neither particularly quick nor particularly slow. Obviously, I started writing articles and textbooks and the things that Academics do. I wrote a book on Mental Health Law which caused the Regional Chairman of the Mental Health Review Tribunal (who had known me at the Bar) to suggest that I might become a member of Mental Health Review Tribunals. So I started doing that”
So that was the first step?
“That was the first sort of traditional step. And then, at the beginning of the 1980s, the Lord Chancellor’s Department recruited a few Academics with some practical experience to sit as Assistant Recorders. I think that they were trying to diversify the Bench, and that seemed the obvious first step. And so I trained and sat as an Assistant Recorder.”
And the rest as they say is history. But what attracted you to sitting on the bench?
"Two things! One is new challenges, and the other is actually keeping in touch with the world of Litigation. Because I enjoyed it when I was a Barrister. It was a good thing to be doing it - diversification - and of course, I am very glad I did it.”
What is so unique is that you followed a distinctly untraditional path.
“Yes completely different. The academic work led me to becoming a Law Commissioner in 1984 almost the same time as I started the baby judging. I carried on doing the part-time sitting while I was a Law Commissioner doing more and more of it and of course that was very convenient for everybody. And it, no doubt, made me visible with the powers-that-be who thought that just possibly it might make me appointable to the Bench in some capacity or another, so that’s what happened.”
It was also in 1984 that she wrote the influential tome Women and the Law, the first comprehensive survey of women’s rights at work, in the family and in the State. With that in mind I enquired as to whether she thought it helped that she was a woman?
“I don’t suppose it was a hindrance…”
“I think there does come a time when any system has to look at itself and say hang on – we have lots of women lawyers and hardly any women judges, and at least open itself up to the possibility that there might be appointable women in odd places. To the extent that I, and one or two others, exemplified the fact that there might be appointable women in odd places well, yes, I'm sure it helped, and I hope it will go on helping.”
But would you agree that the law is still a gentleman’s club?
“As you know more than half of law students are women. Entrance to the profession is at least half and half, and sometimes more than half. But the problem is that the attrition rate, especially the attrition rate from the places where women become visible for certain types of judicial appointment, is very high. But the Law is not the most family-friendly or flexible of careers. So it is obviously easier for men to make progress than it is for women. That is obviously not an inevitable sex difference, it is a ‘the way people run their lives’ difference.”
And the judiciary?
“Our system of judicial appointment, especially for the senior posts, relies on long experience. They are beginning to realise that the experience could be in a number of different fields. But that is a relatively recent realisation. So any club that you join by long experience of doing something else is likely to mean that there are fewer women, because there are fewer women with the long experience of doing something else for structural reasons and that also means that they will be men of a particular generation and a particular background.”
So were you accepted as a new member into the Judiciary with open arms?
“I think one of the good things was, I genuinely was in Family Law, unlike some of the earlier women appointments, who weren't genuinely in Family Law but they were put in the Family Division, possibly because it was thought that they could do less damage there, but I was genuinely a Family lawyer. This may have enabled me to demonstrate that I could do the job.”
So are you enjoying it here in the Lords?
“It is not possible not to enjoy it. There are only twelve Lords of Appeal in Ordinary, so it is a small, pretty friendly group of people. Everybody has been very friendly – we are all very different. I mean, although eleven of them are men and I am a woman. The men are all very different from one another, in character and personality. So, very individual.”
So do you find it a struggle coming to judgments?
“It’s very interesting. It’s nothing like as much of a struggle as an Appellate Judge, as it is as a First Instance Judge. [As a] First Instance Judge, certainly in the Family Division, you are usually doing three things. You listen to the evidence, work out who you believe and where the truth lies, or wade through the mass of documentary evidence, deciding which is the most important and which is not so important. Then you exercise a discretion. There may be a point of law that you also have to think about, or you may have to remind yourself what the law is. Finally, you try to express your decision in a way that does not make things worse rather than better.”
So how is it different in the Lords?
“As an Appellate Judge, you are not on your own for a start. You are either one of three, five, seven, or even nine. So you are not shouldering the whole burden by yourself and also you are simply reviewing what the poor, bloody foot-soldier did in the first instance. But you are also very conscious, as an Appellate Judge, that whatever decision you come to is going to be binding on everybody else”
I read with interest that you are proud to be called a feminist. What does that mean?
“If you are asking me whether I am a feminist, I would say of course I am a feminist. But if you are asking me what is a feminist? I would say that I believe that women are entitled – you know, as the Declaration of Human Rights puts it – to equality, in dignity and rights. And it’s as simple as that.”
If it were only as simple as that?
“Well, of course you then have to work out what we mean by equality, and you have to work out what we mean by dignity and what we mean by rights. These are all difficult and I have devoted a certain amount of my time and thought processes to writing and talking about these things. But that is what I mean by a feminist. I think I would probably add to that the recognition that there are a lot of different ways of leading one’s life, and that it is, on the whole, in the interests of the human race if women can be persuaded to have babies.”
Have you seen the world’s population?
“Not too many babies. The babies that they want to have, no more and no less. But that being the case, there are certain inevitable distinctions that have to be drawn. Again, it is difficult to work out which are inevitable and which are not. Which are biology and which are sociology. And just as I would say that there are many different ways of proving one’s ability to be a decent judge, there are many different ways of succeeding in the world, and that’s what I'm interested in.”
You mentioned the Declaration of Human Rights, are you in favour of the legislation?
“Yes, I'm in favour of the legislation. I think it has made us think about certain fundamental issues, in a way that we didn’t think about them before, and that’s a good thing.”
But are there too many laws?
“I was a member of the Law Commission, whose statutory duty was to simplify and modernise the law. This included reducing the number of separate enactments by consolidation and codification of both statute and common law, two very different matters. So yes of course, I believe that, if at all possible, law should be simple, clear and accessible. We do seem to find it very difficult to do that. There is a great enthusiasm to take a problem and say ‘there ought to be a law about it’, when maybe a better solution might be found elsewhere than in the law for tackling that particular problem.”
Or arguably there’s a law already there…
“Yes. That is true. Or arguably you could try and make more coherent the law that is already there, so that it was simpler and clearer. And that is what we tried very hard to do in the Law Commission. I think we succeeded with the Children Act in 1989, in taking a mass of separate pieces of legislation, which were incoherent and turning them into one coherent scheme that fitted together, so that everybody could understand what it meant.”
Do you believe that there is still a passion for the law? Or is it now all about the money?
“That is a very interesting question, and of course different people enter the Law for different reasons. Having spent eighteen years amongst undergraduates, three of them as Admissions Tutor at Manchester University Law Faculty, one was aware of a wide range of different motivations of people coming into the Law. You had some who came in because of family pressure, which sometimes had to do with parents wanting their children to get ahead, and have a profession, and be respectable. There were certain groups within which it was seen as being a step up from whatever they had previously been involved in. Now you could say that that was a natural thing, but it wasn’t really, it was more a status and position thing.”
So it is no longer about righting a wrong?
“Well there were some who went into it for idealistic reasons. They wanted to right all the wrongs of the world. And there were some who went into it for unmixed materialistic reasons. But most people probably have a mixture of those three – status, idealism and money. And some went into it because they were genuinely interested, which is not quite the same.”
“I went into it because I was genuinely interested.”
An idealist then?
“No I did not go into it because I had a burning sense of the injustices of the poor, or the disadvantaged. Because I am not sure I knew much about that. I certainly did not go into it for monetary reasons, because again I do not think I knew much about that. When I went into it, my ambition was to become a high street solicitor. Because that was all I knew about the Law, and although they were comfortably off, they were not brilliantly well off, and so I do not suppose that I was that unusual. But on the other hand, there are now many, many more people going into the Law, and universities are very anxious to offer Law courses because so many people want to do them.”
The problem with that is that there are almost too many people going into the law. Not enough jobs and a considerable degree of debt follows.
“That is absolutely right. There are so many people going into the profession, or wanting to go into the profession, that it will be difficult for them all to find legal careers of the sort that they probably thought of, when they first went into it. They won't have wasted their legal studies if they’ve made good use of them. That’s the other thing about the Law. It plugs into so many other areas of life, that you should end up, after a Law degree, much better qualified for life than you were before.”
So are you in favour of increasing the gene pool for Judges?
“For the reason that I gave earlier, I do strongly believe that we ought to have a more diverse judiciary. If the only people who can become High Court Judges are successful silks, who practise regularly, and visibly, before other High Court Judges, well then it more or less stands to reason that there will be fewer women and fewer people from minorities, than there might otherwise be. It does not follow as night follows day that the only people qualified to do judging at a high level are the people who have been Advocates at a high level. The Advocates may be very good judges, but they may not.”
It was in January 2004 that Baroness Hale became the first woman ever to join the ranks of that highest legal table in the country. By doing so she has brought a form of hope and emancipation to female lawyers everywhere. It is true that the appointment of a woman Law Lord is long overdue. But perhaps her wider legacy will be that recognition that senior members of the judiciary are no longer obliged to follow a single path. She has with her appointment brought a belief and an expectation that hard work, energy, diligence and common sense will finally be rewarded in the law and the judiciary. If the judiciary is to move with the times then such appointments must not be symbolic but the start of fresh ideas and real change. There are after all a considerable number of excellent legal executives just waiting for that opportunity to take their first step along the judicial ladder and perhaps eventually sit with Baroness Hale at that top table.