Lady Hale: Talent, ambition, and luck

‘The story I like to tell is of my pupil master, a very senior junior who went onto the bench towards the end of my pupilage,’ says Baroness Hale of Richmond when I ask about her experiences of life at the Bar when a female face was far from a common sight. ‘He was absolutely delightful, very capable, a lovely chap, but rather old fashioned. I had heard he didn’t approve of women at the Bar.’

Half way through her pupillage, the then baby barrister Brenda Marjorie Hale plucked up the courage to confront her pupil master over these rumours. ‘I’ve heard you don’t approve of women at the Bar,’ said Hale. ‘That is absolutely right I don’t,’ replied John Wilfrid da Cunha, a former Nazi war crimes prosecutor at the Nuremberg trials. ‘But why? Your wife is a doctor, so you obviously don’t disapprove of professional women,’ asked Hale in return. ‘Ah yes,’ responded da Cunha, ‘but medicine is a caring profession, entirely suitable for women, but the Bar is a fighting profession, not suitable for women, and I don’t think that they can. They are either too yielding or too obstinate. To be a good barrister is knowing when and how to fight, when to do deals, and when to back down.’

Looking back, Lady Hale agrees that the skills cited by da Cunha are crucial for advocates, but he was wrong to think women were not as capable as men. ‘It was my job to persuade him that, from time to time, women could do it as well as the men,’ she adds. Did you persuade him, I ask. She smiles. ‘He was really quite complimentary the first time I appeared in front of him when he was a judge, so I think he maybe thought there might be the odd person who could do it.’

Lady Hale’s career has been marked by a number of ‘firsts’. After graduating from Cambridge in 1966, she taught at Manchester University and, having been called to the Bar at Gray’s Inn, practised family and social welfare law from Tommy Backhouse’s chambers. In 1984 she became the first woman appointed to the Law Commission and her work there helped to bring about important legislative changes, such as the Children Act 1989, the Family Law Act 1996, and the Mental Capacity Act 2005.

Taking silk in 1989 she spent time sitting as an assistant recorder before becoming a High Court judge in 1994, the first to have made a career as an academic and public servant rather than a practising barrister. Then, in 1999, she became only the second woman to be promoted to the Court of Appeal, before then becoming the first woman Law Lord in 2004. In June 2013 she was appointed deputy president of the UK Supreme Court, succeeding Lord Hope of Craighead. She remains the only woman justice on the court and is tipped to become its first woman president next year. Lady Hale has been, and continues to be, a trailblazer for women in law, yet she remains humble when asked about her success.

‘I think I’ve been pretty fortunate really,’ she says, ruminating on her career. ‘I went into the law at a time when people were just realising it was a good idea to have women. I was the second woman in the chambers, which is a great credit to the first. There probably were things going on behind one’s back though.’ If so, then Lady Hale was perhaps indeed fortunate, because other women lawyers have been victims of far more overt discrimination.

The retired Lord Justice of Appeal, Sir Henry Brooke, told Solicitors Journal how one young pupil barrister was informed in 1970 that her new chambers ‘did not accept women tenants’ (SJ160/42). Meanwhile, Christine Kings, director of Outer Temple, recently told a conference of women lawyers how, in the early 1990s, she was spat at in the street after assuming the role of chief executive at the newly formed Doughty Street Chambers.

The First 100 Years Project has documented many other examples of sexist or misogynistic behaviour towards women lawyers, such as the story of one barrister who was told she could not become a member of chambers ‘because they had no separate toilet for women’, or the solicitor who had to edit her CV to remove any hint of gender just so she could get an interview, or the prospective trainee who, during an interview at a Magic Circle firm, was told by a disinterested looking partner that she was probably only there ‘to balance up the figures’.

At the Spark 21 Women in Law conference, held in London earlier this month, the chairman of the Bar Council, Chantal-Aimée Doerries QC, raised concern that while there was now a greater knowledge of the diversity issues that still plague the legal profession, such awareness could become a double-edged sword if, as she suggested, ‘it stops people from applying to the law’. I ask Lady Hale if she feels this might be the case and what advice she would give women considering a legal career?

‘I would say: “You mustn’t worry about that”,’ she replies. ‘If my generation had been worried about sexism or discrimination then we wouldn’t have ever tried. If you agree women are as equally competent and capable as men, and that it is a good thing if the profession and judiciary reflect the balance of the population rather better than they do at the moment, then we can’t be putting people off. The legal profession isn’t too bad, although in the senior ranks there is still a problem. The judiciary is a lot better, but there is still a way to go.’

Although improvements have been made to the makeup of the profession and judiciary, it is easy to understand why many are left frustrated by the slow pace of change. Despite Law Society research showing women make up 49 per cent of the solicitor profession, just 21 per cent of Magic Circle partners and 19 per cent of Silver Circle partners are female. The Bar Standards Board has found that sexual harassment and discrimination is still rife at the Bar. Only 13 per cent of QCs are female and just 6 per cent come from minority backgrounds. Just 20 per cent of the High Court and Court of Appeal judges are women. And statistics published by the Judicial Appointments Commission in June showed white lawyers were three times more likely to be made a recorder than their BAME counterparts.

In a drive to increase diversity the Lord Chancellor recently revealed new measures to encourage more solicitors and barristers to become judges. The plans include a new fast-track process making it easier for lawyers to progress to the bench ‘as soon as they are ready’. And, though merit and ability will remain paramount in the selection process, experience as a deputy High Court judge would carry far greater weight than at present. I ask Lady Hale what she thinks of Liz Truss’ proposals and whether this shakeup of judicial appointments goes far enough?

‘[The Lord Chancellor] was espousing quite a few of the things I’ve been saying for a long time,’ she responds. ‘They sound like very good ideas to me. In the olden days the Lord Chancellor was in charge of everything: running the legal system, head of the judiciary, and also in charge of judicial appointments. We’ve now got a much better system where those roles are separated but it means the Lord Chancellor’s role in relation to judicial appointments is very much diminished. A lot of what she was saying is basically directed to the qualifications criteria and on what to look for. But, of course, it is the [JAC] that is going to be doing the looking.’

Time for change?

The Supreme Court is not immune from criticism over a lack of diversity. Its current composition of nine privately educated white justices, only one of whom is a woman, is hardly representative of modern Britain, or even the legal profession at large. In a speech to law students at Birmingham University in November 2015, Lady Hale said the court should be ‘ashamed’ of itself if it did not become more diverse by 2018. Speaking at the Bar Council’s ‘Law Reform Lecture 2016’ last week, Lord Neuberger, president of the Supreme Court, seemed to agree, stating that, on the issue of diversity, his court ‘does not score at all well’.

It is for this reason the president unveiled plans to make the court more diverse. His proposals include half-day ‘insight sessions’ offered to prospective candidates, a tour of the court, observation of proceedings, and a one-to-one meeting with a justice. Information on flexible working would also be offered for the first time.

Lord Neuberger also confirmed his intention to retire next summer. The announcement follows the retirement of Lord Toulson, who left the Supreme Court in July and has yet to be replaced, and Lord Clarke, who will be retiring in 2017. Lords Hughes, Mance, and Sumption are also set to retire in 2018.

With an increasing number of Supreme Court vacancies opening up over the next five years, Lady Hale, who is the favourite to succeed Lord Neuberger as president, was keen to stress that applications from solicitors for the empty spots would be ‘warmly encouraged’. Speaking a week before Lord Neuberger’s Bar Council speech she tells me: ‘Between now and mid-2020 we will inevitably have nine vacancies. We are looking to group them in threes so it won’t be one vacancy at a time. We hope it will encourage a wider range of people to put themselves forward and to think this might be an appropriate career for them.’

The statutory qualification for a Supreme Court justice is either two years’ high judicial office, or being a barrister or solicitor, and 15 years’ law-related activity. ‘The activity does not have to be as a practising barrister or solicitor,’ she is quick to add. ‘It can be any law-related activity, including being an academic. It is very widely defined.’ However, Lady Hale admits some bench experience is likely to be valuable during the selection process. ‘All things being equal, people with some judicial experience will be more likely to demonstrate that they have the [right] qualities,’ she says. ‘But we do regard it as important to diversify the court and get the most able people from a wider range of backgrounds than we currently have.’

So what advice would the deputy president give to solicitors considering a leap onto the bench? ‘To be judge you need to be patient, fair, quick on the uptake, be able to appreciate all sides of a dispute, and be decisive.’ It is the latter which Lady Hale puts the most emphasis behind. ‘It is what people pay us for. Some judges have been criticised for not being able to make decisions. But there is absolutely no reason why a solicitor shouldn’t have all of those qualities. The great majority of district judges in the County Courts are solicitors and they handle all sorts of issues, some of them pretty big, so why anyone should think they are not as well qualified as a barrister to do these things I haven’t the foggiest idea.’

However, Lady Hale does recognise the barriers to higher judicial office that are placed in the way of solicitors. ‘The difficulty is the way solicitors’ practices organise themselves. It makes it quite difficult, without the support of partners, for a solicitor to do the part-time judicial work our system expects before taking up a full-time post. Part-time sitting is good for the judge and the public; it’s sort of an apprenticeship.’

Techno court

The day of my interview with Lady Hale coincides with the three justice hearing of Cono Cono & Co Ltd v Veerasamy and Others JCPC 2015/0071. Like many cases before the UK’s highest court, Cono, heard before Lords Clarke, Mance, and Sumption, is a landmark in UK legal history as it is the first appeal to the Privy Council heard via video link. Looking in on proceedings, I am told the justices had been keen to identify a suitable JCPC case for a pilot hearing. The parties were able to avoid the long journey and increased cost of attending court from Mauritius for what was a relatively short two-hour hearing. Initial reactions were said to be positive, and plans are afoot to introduce a permanent system for Court 3 by spring 2017.

Other examples of modern practices in the UK’s highest court include its live streaming service, which has approximately 20,000 viewers a month, video on demand, with around 10,000 viewers a month, and increasing use of electronic bundles to reduce the use of papers in the courtroom. A number of justices now rely solely on the core bundle and their laptop in court, annotating notes straight onto their computer as they go.

‘We think we have done quite well with the use of technology,’ says Lady Hale, when I ask her about the advances the court has made since 2009. ‘Those of us that are comfortable dealing with things on screen don’t have to spend so much time hefting paper about. It would be a great improvement, if it were practicable, in the Court of Appeal and in other big cases, for everything to be electronic; not so as to force the judges who don’t want to use a computer to do so – that would be a cruelty – but definitely to encourage a reduction in the amount of paper.’

It is difficult for Lady Hale to comment on Lord Justice’s Brigg’s radical shakeup of the civil justice system, she tells me, as ‘it is long time since I’ve been a trial judge or even an appellate judge’. ‘We all know that small systems seem to work better than big ones. We are very fortunate here that our own system is designed for our own purposes,’ she says. ‘But when you get a mega system, like the civil justice system... trying to computerise all of that, so the public can use it too, is going to be a big job. I would have thought that, provided you can cater for people who don’t have access to a computer, it would be a good thing.’

Yet, Lady Hale shares the concerns of some practitioners who worry about how digitisation will affect justice. ‘Most directions can be done be email without dragging everybody to court, but if you have an actual trial the ideal is to have everybody in the same room,’ she says. ‘As a judge there are all sorts of clues you pick up from seeing people; you’ve got everyone in the room looking at one another, exuding various things which aren’t on the transcript, but you can see it and you can pick up on those clues. That is much harder to do if things are videoed. But in other circumstances that is the best way of diffusing tension or enabling the person to give their best evidence. The criminal justice system is way ahead of the family system in making provision for children and vulnerable witnesses to give their best evidence.’

Challenges and dissents

Asked what has been the most challenging appeal she has heard on the Supreme Court, Lady Hale cites the case of right-to-die campaigner Tony Nicklinson. ‘It didn’t start life in the lower courts as an assisted suicide case, it was about mercy killing and necessity. It then became a case over how far people could go, if at all, in assisting suicide. That was a nine justice court and we split five-four on whether it was even appropriate to contemplate making a declaration of incompatibility in relation to the Suicide Act,’ she explains.

‘Two of us thought that, on the basis of the evidence we had heard, we would be willing to make a declaration; the other three thought it wasn’t the right case, nor the right evidence, and wasn’t the right time. It was obviously a big challenge to get the reasoning for the judgment right because one doesn’t like to disagree,’ she continues. ‘The frustrating thing is those comparatively rare cases where one does not share the views of one’s colleagues, and hoping that you might persuade them but failing; that’s rather challenging, but is something that applies to all of us.’

Despite having a reputation for dissention, Lady Hale is keen to stress that she is far from the most common dissenter on the court. ‘From the opening of the court until April this year, I’m only the fourth most frequent dissenter, amongst all the people that have sat, and I’m also not the most frequent sole dissenter,’ she says. I ask if she believes dissenting judgments help advance the law. ‘Sometimes it does and sometimes it doesn’t,’ she replies, and points to Radmacher (formerly Granatino) v Granatino [2010] UKHL 42. ‘[The dissent in Radmacher] is unlikely to advance the law because my objection was that my colleagues were advancing the law unnecessarily and without proper consideration of the safeguards that were necessary if they were going to say prenuptial agreements were legally binding,’ she explains. ‘So one dissent may advance the law, but another won’t.’

Away from court, Lady Hale remains involved in the UK Association of Women Judges and the International Association of Women Judges, both of which she was the past president of between 2010 and 2012. ‘It’s a wonderfully refreshing experience to talk about the problems facing women the world over,’ she tells me. ‘I also try to visit as many universities, meeting a lot of students, which is equally educational. If this is an Ivory Tower then it is one where regular escape is possible and desirable.’

Having accomplished so much in her career to date, and with the likelihood she will be made Supreme Court president next year, I ask Lady Hale if she has any regrets from her time on the bench or if there is anything she has yet to achieve. ‘I’m sure there are many things I do regret but I’m not sure there is anything I would like to make public,’ she replies, laughing. ‘I have had such a fortunate life; I’ve been so lucky. I’ve been in the right place at the right time on more than one occasion and it would be vain of me to think there was anything more that I could achieve.’

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

Image copyright of Mary van der Luit-Keevil