Erika Rackley is a Professor of Law at the University of Birmingham. She has written widely on judicial diversity and judging, particularly in relation to the representation of women and the importance of difference-based arguments in the context of judicial diversity.

Long before Lord Thomas, Sir Terence Etherton and Lord Justice Sales were exposed as ‘Enemies of the State’, the Daily Mail had another judge in its sights. A judge who, in the words of Melanie Phillips, was, at best, ‘the most ideological, politically correct judge ever to have been appointed’ to the (then) House of Lords and, at worst, a ‘hard-line feminist’ apparently intent on destroying the institution of marriage and other family values. A judge whose appointment in 2004 ‘epitomised the moral vacuum within our judiciary and wider establishment’ and ensured that bring her ‘destructive perspective’ (however conceived) to bear upon binding legal decisions over some of the most difficult and contentious issues around’. A judge who had – it seemed – all the markers of a dangerous woman.

The judge was Lady Hale. Now Deputy President of the UK Supreme Court and the longest serving Justice,[1] Lady Hale was the first – and 13 years – and 15 appointments later – only woman to be appointed to the UK’s most senior court. (Just to pause here for a moment. What this means is that in 2017, just two years shy of the centenary of anniversary of women’s entry into the legal profession in the UK, and over 40 years since women began to enter the legal profession in equal or greater numbers to men, 11 of the 12 judges in the UK’s highest court are white men – a visual that was not lost on many of those who tuned into watch R (on the application of Miller) v Secretary of State for Exiting the European Union (the so-called ‘Brexit case’) earlier in the year).

Lady Hale has now heard more UK Supreme Court cases than any other Justice. She has brought a distinctive perspective – both in and out of the courtroom – to many of the key issues of the day: FGM, legal aid, shared property, equality and children’s rights, diversity in the legal profession, pre-nuptial agreements, pensions and domestic violence, to name a few. The last, including the case of Yemshaw v London Borough of Hounslow in 2011, which – inevitably perhaps –lead to a further round of hyperbolic headlines and opinion pieces such as this from Christina Odone writing in the Telegraph:

Thank goodness Lady Hale has never set foot in our home, or I’d be sleeping under Blackfriars Bridge tonight. I am, you see, guilty of domestic violence: I shout at my husband on a regular basis, with everything from accusations (“You slob!”) to threats (“I’m going to throw that Blackberry out of the window!”) … This judge is an ass! (And I’m not afraid to shout it, at the top of my lungs!)

Nor are such outbursts confined to newspaper columnists. See, for example, Lords Walker and Brown, who referred in their judgments to a comment by Lady Hale in her dissenting judgment in R (McDonald) v Royal Borough of Kensington and Chelsea [2011] (a case considering the appropriate provision of care by a local authority) as being ‘deplorable’ and ‘remarkable’. This was a reaction described by legal commentator, Joshua Rozenberg as bringing ‘to mind the words “hit” and “roof” – or perhaps even “fan”’.[2]

There is, of course, nothing unusual about judges disagreeing. Nor is it particularly surprising that Lady Hale – on occasion – takes a different view to her male colleagues particularly (but not only) on gender and gender-related issues. Indeed, speaking at an InterLaw Diversity Forum event, Lady Hale suggested that the differences of opinion in McDonald ‘could just be that the physical differences between men and women mean that women have a different view of what human dignity entails in this particular context than do men’.[3] What is surprising about Lords Walker and Brown’s outburst is the language they use in their attack on Lady Hale’s judgment. Rozenberg continues:

By normal standards, words such as “deplore” and “remarkable” may not seem particularly blunt. But the law lords used to be much more respectful of each other, manifesting robust disagreement without descending to personal abuse. If this is what the justices were prepared to say about Hale in print, you can imagine the rows they must have had with her in private.

Of course, the criticisms made of Lady Hale here were not explicitly tied to her sex – the objection is to her reasoning which appears independent of her status as a woman. However, in the context of a case in which Lady Hale herself has suggested that her sex may have shaped her approach, it becomes harder to disentangle criticism of her reasoning from her status as a woman judge. More broadly, the response to Lady Hale’s judgments in both Yemshaw and McDonald fit into the broader pattern of women judges being more likely to be subjected to criticism – more likely to be seen as dangerous – than their male counterparts.[4]

Add in to the mix the fact that Lady Hale openly identifies as a feminist and conditions are just right for a perfect storm of danger. Indeed, rather than claim – as others have done – that her gender is irrelevant to her role as a judge, Lady Hale is highly conscious of her position as a woman, mother and grandmother, and as the only woman on the Supreme Court, famously alluding to both in her judgments. See, for example, Radmacher (formerly Granatino) v Granatino  [2010] in which she noted ‘a gender dimension to the issue’ under consideration by the Court (the enforcement of a pre-nuptial agreement) ‘which some may think ill-suited to decision by a court consisting of eight men and one woman’). Or her comment in R (on the application of Gentle) v the Prime Minister [2008] in which she openly sympathised with the families’ wish for an independent inquiry into the invasion of Iraq that ‘if my child had died in this way, that is exactly what I would want. I would want to feel that she had died fighting for a just cause, [and that, if not] then someone might be called to account’.

From the outset, Lady Hale has seen herself as ‘just a bit different’ from her male colleagues. Speaking in 2010, she noted:

I’m quite embarrassed to be the only justice to tick a lot of the diversity boxes, for example the gender one, the subject areas in which I’m interested (which are not ones that most of my colleagues have had much to do with up until now[5]), the fact that I went to a non-fee-paying school and the fact that I wasn’t a practitioner for any great length of time. I’m different from most of my colleagues in a number of respects (and they’re probably at least as conscious of this as I am).

However, her ‘difference’ does not end here. According to Alan Paterson in Final Judgment, Lady Hale perceives ‘that she has a slightly different role from her male colleagues’, and he quotes her as saying that ‘there are issues on which I am quite likely to take a different line from my colleagues for a variety of reasons, and it’s one of the reasons I’m here’.[6] Lady Hale made a similar point in an interview for the UKSC blog in 2010:

I frequently have a different “take” on a case from that of my colleagues, even though I might agree in the result and with most of the reasoning. However, as “Ms Diversity” I would regard myself as being considerably inhibited if I couldn’t come along and say “hang on, what about the child in this case?” or “hang on, you are you’re telling the factual story in a different way from the way that I would tell it”.

And, for better or worse, Lady Hale’s ‘different “takes”’ have not gone unnoticed by academic and other commentators. A Guardian editorial, in October 2006, ‘In Praise of … Lady Hale’ put it like this:

An important ruling from the law lords this week has all the hallmarks of Britain’s first woman law lord, Brenda Hale … few would doubt that Lady Hale has brought into the highest court in the land a bracing new approach to women’s rights.

More recently, Anne Perkins also writing in the Guardian suggested that:

Lady Hale has politely jolted the thinking of her some of her peers on to a different track; she has shown how the law can be approached from more than one perspective without undermining the law itself. She has done it against that chorus of disbelief so familiar to women in authority, a muttering of criticism that has not always been discreet, and she has survived to change the law.

As such Lady Hale embodies a key argument for why there should be greater diversity among our judges. For it is only by appreciating the substantive contribution women judges can make to judging that we will see what we really do have to gain from a diverse judiciary: a judiciary that is stronger and it is better positioned to do its job – to deliver justice. And if this is true then we have not only have a reason, but a responsibility, to seek out and embrace judicial difference in all its guises and to put more dangerous women on the bench.

In the meantime, thank goodness for Lady Hale.



[1] Lords Mance, Kerr and Clarke were also part of the first cohort of Supreme Court Justices. However Lords Mance and Kerr were elevated to the House of Lords after Lady Hale and Lord Clarke was appointed directly to the Supreme Court.

[2] In his survey of judgments over the last 25 years, Robert George found just one example of the word ‘deplore’ being used in relation to another judge, in a case where the judge’s actions amounted to serious professional misconduct (Robert George, ‘In Defence of Dissent: R (McDonald) v Royal Borough of Kensington and Chelsea’, Family Law, October 2011, 1097, p. 1101)

[3] 13 October 2011 (transcript on file with author). Though it should be noted here that the (woman) judge at first instance took a different view to Lady Hale.

[4] See further Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity (Routledge: 2013) chap 4.

[5] Lord Wilson was appointed in May 2011.

[6] Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Hart: 2013) pp. 138, 134-5