By Rebecca O’Brien
Baroness Hale was the perfect choice for the first female Supreme Court President partly because she has an incredibly successful legal and academic career, but also because she is an outspoken champion for women’s rights. In many court judgements and lectures she has openly expressed her shame at the unrepresentativeness of the judiciary, and how the law must be reformed in order to prevent inequality. She is a great character, as another important legal figure, Baroness Kennedy QC, said
“Brenda is an absolutely straightforward, completely honest and principled person. This idea of a man-hating feminist is wrong. She’s extraordinarily human, by no means anti-male and great fun. I’ve always found her a wonderful, companionable person”.
In seeing her speak at an event for ‘Women in Law’ I realised how deeply committed she is to equality. Her passion for access can be seen in her CV: Chancellor of the University of Bristol, Visitor to Girton College Cambridge, and Treasurer of Gray’s Inn. This is clearly an important issue as while the percentage of female judges has risen, in the Court of Appeal from 18% to 24%, and from 18% to 22% in the High Court, there is still a lack of diversity, especially as only 7% of the judiciary come from black and minority ethnic backgrounds.
She has made many quotable comments in lectures and articles showing her commitment to diversity and equality. In one paper she said,
“In a democratic society, in which we are all equal citizens, it is wrong in principle for that authority to be wielded by such a very unrepresentative section of the population…my colleagues…are: not only mainly male, overwhelming white, but also largely the product of a limited range of educational institutions and social backgrounds…This matters because democracy matters…We are the instrument by which the will of parliament and government is enforced upon the people”.
She is, however, well aware that she did also study at the University of Cambridge and therefore doesn’t represent diversity of higher education background, even though he didn’t attend a public school. In this comment Baroness Hale recognises that while the judiciary is meant to be independent and objective, naturally your understanding of the world is changed by your background, and therefore in order to fully understand the range of cases one must have a fully diverse bench. Furthermore, she emphasises here how important court judgements are to both the specific individuals in the case, but also general society; while parliament may make the laws, the court is the institution that actually enforces them and therefore has the greatest impact on the individual.
Baroness Hale has also expressed her disappointment in the current state of law with regards to its attitude towards equality. Her family law background has meant that she has spent much of her career dealing with divorce matters, domestic violence, and care cases. When reflecting on this she said “some women are being pursued and oppressed by controlling or vengeful men with the full support of the system”. This was earlier seen in her work on the first comprehensive survey of women’s rights at work, in the family, and in the state, which concluded that:
“deep-rooted problems of inequality persist, and the law continues to reflect the economic, social and political dominance of men”.
In many important judgements Baroness Hale has improved equality by articulating the realities of women’s experiences. Her judgement in Yemshaw v London Borough of Hounslow 2011 was incredibly important in improving the court’s understanding of domestic violence, by reflecting the reality that it doesn’t only consist of physical abuse. Hale referenced a number of different sources which described domestic violence in broader terms, in order to show that this is, and should be the modern understanding of this kind of abuse. For example, the Oxford English Dictionary includes “strength or intensity of emotion; fervour, passion” in its definition of “violence”, and the third report of the 1993 House of Commons Home Affairs Committee articulated domestic violence as “any form of physical, sexual or emotional abuse which takes place within the context of a close relationship”. Unlike what a number of media outlets said at the time, this was a perfectly reasonable construction of the 1977 Act, as she clearly referenced the purpose of parliament as they intended to “ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm” and “that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere”. She aptly brings a modern understanding to the legislation while still referencing parliament’s intention; the perfect responsibility of a judge.
She was integral also in the case of Parkinson 2002 as she explained how serious pregnancy, birth and childcare is to a mother, and therefore how it cannot just be described as a “blessing” as it was in McFarlane. She describes how pregnancy has a large impact on a woman’s life; that there are “physical changes [which] bring with them a risk to life and health greater than in her non-pregnant state”, but there are also psychological changes. Furthermore, she explains how it is “severe curtailment of personal autonomy” as
“Literally, one’s life is no longer just one’s own but also someone else’s. One cannot simply rid oneself of that responsibility”
and it is “not reasonable to expect any woman to mitigate her loss by having an abortion”. She then explains how significant birth is by saying that “it is rightly termed ‘labour’ ” “as [it] is hard work, often painful and sometimes dangerous”. Further to this “the labour does not stop when the child is born. Bringing up children is hard work” as “the obligation to provide or make acceptable and safe arrangements for the child’s care and supervision lasts for 24 hours a day, seven days a week, all year round, until the child becomes old enough to take care of himself”. This was an important judgement as it explained how significant the negligence of a doctor in causing pregnancy can be to a woman’s life, rather than simply glossing it over as “a blessing”.
Further to this she has made some important comments in relation to financial distribution of contributions after divorce by expressing how important it is to consider the sacrifice women often take for their careers in order to look after children. As she describes in Miller, McFarlane 2006:
“even if they do their best to re-enter the employment market, it will often be at a lesser level than before, and they will hardly ever be able to make up what they have lost in pension entitlements”.
Previous to this the law often focussed on whether there had been a ‘stellar contribution’ to the marriage, and if there was, that partner would often get more money. Yet what was recognised was only contributions which brought in income, whereas Baroness Hale says, “A domestic goddess self-evidently makes a “stellar” contribution”. Furthermore, in Radmacher v Granatino she expresses her dislike of ante-nuptial agreements (pre-nups) as they take advantage of the economically weaker spouse and she explains how this often has a
“gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman”.
Baroness Hale is an incredible inspiration for any prospective female lawyer as she has not only often been the ‘first’ woman in many different areas (first woman to be appointed as a Law Lord, first woman to be appointed to the Law Commission, and now first woman to be appointed Supreme Court President), but she is a strong proponent of equality and feminism. It is essential that we have a champion of women’s rights in the Supreme Court who understands the importance of equality, and her experience as a non-privately educated woman is the icing on the cake.
Microphone, whole court:http://www.bbc.co.uk/news/uk-40679299
Smiling in gown: http://www.pinknews.co.uk/2017/07/21/lifelong-lgbt-rights-advocate-lady-hale-becomes-president-of-the-supreme-court/
 Equality and the Judiciary: Why should we want more women judges? 2001 Public Law 489 502-03
 The View from the Court 45 1999 Pg 385
 1984 Women and the Law Susan Atkins, Brenda Hale, Brenda M. Hoggett
 Parkinson v St James and Seacroft University Hospital NHS Trust  QB 266 (CA)
 McFarlane v Tayside Health Board  2 AC 59