Lady Hale

by Rory OConnell on November 16, 2016

Lady Hale, Deputy President of the UK Supreme Court, has been in the news recently. In the media storm following the Miller judgment, one newspaper profiled the judges of the Supreme Court and described Lady Hale as a feminist. More recently her comments during a lecture in Malaysia have attracted some attention. Earlier this year, Ulster University awarded Lady Hale an honorary doctorate and I had the opportunity to introduce her for the award. The following outline of her career is based on that introduction.

Lady Hale studied Law at Girton College, Cambridge, coming first in her cohort. She  moved on to a public career in which any biography is peppered with references to her being first, the only and in general having a trailblazing role. Lady Hale qualified as a barrister and worked for some two decades as a lecturer and later a Professor of Law at the University of Manchester.

In 1984, Lady Hale was the first ever woman and also the youngest ever appointee to the Law Commission for England and Wales. In that role she helped reform the law; the results of her efforts are seen in the Children Act 1999, the Family Law Act 1996 and the Mental Capacity Act 2005.

In 1994 Lady Hale became a judge of the High Court.  The traditional route to a High Court appointment had been a career as a barrister; in yet another mould-breaking step, Lady Hale was the first High Court appointment whose career was primarily based on academic and public service. In 1999 Lady Hale became the second woman appointed to the Court of Appeal.

In 2004 Lady Hale became the first woman to be appointed as a Lord of Appeal in Ordinary as a member of the Appellate Committee of the House of Lords, the highest Court in the UK. As that Court was replaced in 2009, Lady Hale, indeed was the only woman ever to sit on that body in its history.

When the Supreme Court of the United Kingdom came into being in 2009, Lady Hale became the first and only female member of that Court. She remains the only female member today. Since 2013 she has held the position of deputy President of the Supreme Court.

The modern Supreme Court of the United Kingdom has taken decisive steps to dispel the traditional aura of remoteness and inaccessibility that has often been associated with senior judges. The Supreme Court has stressed the public service nature of its work and opened itself up to the public in numerous ways virtually on the internet, through audiovisual resources and also physically, supporting study visits. Lady Hale, through her involvement in these initiatives and  extra-judicial speeches has  played a key role in promoting the transparency of a Supreme Court in a democracy.

Lady Hale’s writings demonstrate outstanding intellectual rigour, but also other, rarer qualities.  There is a crystal clear clarity about her writing; without oversimplifying complex issues, Lady Hale communicates the essence of her views in a manner that is both understandable and compelling. Even more striking, and lending power to the grace of the prose, is the deep commitment to the values of justice, human rights and equality which permeate  her work. To take just a few examples.

In the First Belmarsh case ( 2004), the then Appellate Committee of the House of Lords, had to decide whether it was compatible with human rights, to detain without trial certain categories of foreigners who were deemed to be involved in international terrorism.  The detention powers had been enacted by the democratically elected legislature. In agreeing with the majority that the legislature had breached human rights Lady Hale set out the basic principles of a modern democracy in clear terms:

Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities.

That commitment to a democracy premised on human rights and equality resonates throughout the corpus of Lady Hale’s work, as does a concern for minorities and vulnerable groups such as children. It is a vision that she has never shirked from articulating even in dissent, when the majority of her colleagues disagreed. In the McDonald case concerning a council’s decision to provide incontinence pads for a person who was not incontinent but who required assistance to use the bathroom, Lady Hale’s views were in the minority. In her dissent, she defended the standards of a civilized society which treats its citizens with respect for their dignity. In Lady Hale’s clear language, a civilized society does not ‘oblige people who can control their bodily functions to behave as if they cannot do so’. She again found herself in dissent in the SG case, alongside Lord Kerr another honorary graduate of Ulster University, in a case where she concluded that the Government’s ‘benefit cap’ policy was indirectly discriminatory on grounds of sex.

Earlier this month, the Supreme Court considered the issue of the bedroom tax or spare room subsidy in Rutherford and others. The case  actually involved two key issues: one based on disability discrimination and one based on sex discrimination. The sex discrimination case arose because one of the claimants, who had been raped and still lives under threat of violence, lives in housing made secure but which has an unused bedroom.  The Court concluded in the cases that the bedroom tax or spare room subsidy  constituted disability discrimination but not sex discrimination. Lady Hale agreed with the part of the judgment about disability discrimination but dissented in the second case. In her view the case before the Court  was an example of sex discrimination.

On this last issue of sex discrimination, I was reminded at by two professional newsletters that our societies still have much to do to achieve equality. One newsletter drew attention to the glacial change in the composition of the senior judiciary. More than a decade after becoming the first female Law Lord, Lady Hale remains the only woman among the Justices of the Supreme Court. The other professional newsletter focused on the gender imbalance in the senior levels of European universities. No doubt there is much work still to do. Our society has gained and will continue to gain from Lady Hale’s commitment, energy, conviction and insight.

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