26 October 2019 by
Even before Lady Hale and her spider brooch rose to national prominence following media coverage of
Miller (No 2), she was something of a hero amongst female lawyers. A trailblazer in the profession, she was the first women appointed to the Law Commission, the first female Law Lord and the first female president of the Supreme Court. But it isn’t just Lady Hale’s rise through the ranks of the male-dominated legal profession that is inspirational. It is also the use she has made of the positions she has attained.
While at the Law Commission, Lady Hale played a significant role in the landmark reform that was the
Children Act 1989. This placed the “best interests” of the child at the centre of public sector decision-making and represented a huge step forward for children’s rights. Amongst the many progressive and illuminating judgments penned by Lady Hale in the House of Lords and the Supreme Court, one of the most important is arguably the decision in
Yemshaw v London Borough of Hounslow. In this case she held that domestic violence is not limited to physical violence. Lady Hale’s contributions provide a shining example of the importance of diversity in positions of power within the legal world. It cannot be doubted that she has brought a new perspective to bear that has enriched law-making in this country.
Who better, then, to deliver an address celebrating 100 years since women, through the Sex Disqualification (Removal) Act 1919, gained the right to join the profession of law and to hold judicial office? In an address at King’s College London entitled
“100 Years of Women in the Law: Bertha Cave to Brenda Hale”, Lady Hale introduces us to an array of largely forgotten women who campaigned for admission to the legal world and then blazed the trail for those of us to come. She draws on vivid accounts of early campaigners, such as the New York Times report of Bertha Cave appearing before the House of Lords in December 1903 seeking admission as a student at Gray’s Inn:
“Clad in a navy blue walking suit with a bolero of the same material trimmed in white, and balancing a rather piquant black hat on her head, she carried her comely self into the presence of the august Judges. She deposited a purse and a package that looked like corsets on the table, and then pleaded her case. There was no question of ability raised, it was solely a matter of sex. So she told the Judges what other countries were doing for women who desired to practice law.
The Judges listened smilingly, and when Miss Cave was through promptly advised her that there was no precedent for admitting women students at any of the Inns of Court, and that they did not feel justified in creating one. “I wish your lordships good morning,” said the little woman frigidly, and picking up her purse and her corsets she quitted the judicial presence and went out in the cold, cold world.”
To name just a few of the women Lady Hale discusses, it was Ivy Williams who became the first women to be called to the English Bar in 1922. The Law Journal had earlier described her campaigning as the “futile attempt of a persistent lady”. When she succeeded, the Journal concluded that the admission of women “was never likely to be justified by any success they will achieve in the field of advocacy.” One of the first two English women to ‘take silk’ in 1949 was Helena Normanton. She was likewise subject to disparaging comment, described as
a warhorse from the old feminist days and the terror or her male colleagues… physically unattractive. She can only be described as large and blowsy… incredibly common not to say vulgar…
In typical judicial style, Lady Hale also sets out early tussles over the interpretation of statutory language, particularly, whether a “person” can include a woman in the context of legislation regulating the legal profession. (The answer is “no”, obviously). She recalls some of the more colourful arguments used to justify excluding women from the world of law. These included concern that qualifying for the Bar involved eating a great many dinners and it would be unseemly for men and women to take their meals together. Either, men would vie for the honour of sitting with women, or the presence of women would ruin men’s fun.
Tracing progress within the legal profession since these dark days, Lady Hale notes that currently around 50 per cent of those called to the Bar are women. However, they are still only roughly 36 per cent of those practising at the Bar and nearly 16 per cent of practising QCs. Certainly, it was hard not to notice that, of the twelve barristers appearing for the main parties before the Supreme Court in Miller (No 2), not a single one was a woman. Similarly, in the world of solicitors, while around 60% of practising solicitors are women, the overall proportion of partners is only 33% and the proportion of equity partners appears to be much smaller. I was shocked to learn that it was as late as 1995 that Lesley MacDonagh became the first woman managing partner of a top ten law firm.
Women haven’t fared much better on the bench. In
the most recent judicial diversity statistics released, 32% of judges in courts and 46% of tribunal judges were women. However, only 27% of High Court judges and 23% of Court of Appeal judges were women. Further, although Lady Hale has recently been joined on the Supreme Court by Lady Black and Lady Arden, women represent only one quarter of the Supreme Court bench. Despite all this,
Lord Sumption, while still himself a Supreme Court justice, took the view that increasing judicial diversity could not be rushed “without appalling consequences…We have to be careful not to do things at speed which will make male candidates feel that the cards are stacked against them.” He predicted that it would take 50 years for gender equality on the bench to be achieved “naturally” and seemed to counsel patience: “in the history of a society like ours, 50 years is a very short time.”
It is perhaps not surprising then that even as Lady Hale has risen to prominence in the mainstream media, she has been the subject of sexist commentary. Most notoriously, she was described by the Mail Online as an “ex-barmaid”. One can scarcely imagine similar commentary concerning a male judge. Which is to say, and as Lady Hale herself has underlined, there is still some way to go. In typically wry style, Lady Hale finished her address thus: “I look forward to the day when we don’t even have to have this conversation and I hope and expect that it will not take the 50 years predicted by one of my fellow Justices before that day dawns.”
26 October 2019 by Alice Irving