Good for Lady Hale

The Guardian Weekly - - The Guardian Weekly -

Though Jus­tice is usu­ally por­trayed as a woman, in Bri­tain it has in gen­eral been em­bod­ied by men. Brenda Hale, the new pres­i­dent of the supreme court, will bring years of ex­pe­ri­ence at the high­est level of the ju­di­ciary and a strong fem­i­nist voice to the coun­try’s most se­nior court.

There has long been a ten­sion be­tween two ideas. The first – sym­bol­ised by the blind­fold that stat­ues of Jus­tice some­times wear – is that judges are in­cor­rupt­ible, not merely in the ve­nal sense but also in terms of hu­man sen­ti­ment and emo­tion. The se­cond is the un­der­stand­ing that, if all judges come from sim­i­lar back­grounds, then the jus­tice they dis­pense will re­flect only one set of ex­pe­ri­ences. And a very nar­row set at that.

Brenda Hale has been an out­sider on many lev­els. She made her ca­reer as an aca­demic, not as a prac­tis­ing bar­ris­ter; she is a fem­i­nist, a north­erner and the prod­uct of a state school. She has re­peat­edly urged the pro­mo­tion of more women and pointed to the over­rep­re­sen­ta­tion of the pri­vately ed­u­cated in the ju­di­ciary, and black and mi­nor­ity eth­nic un­der­rep­re­sen­ta­tion. Not all se­nior judges are the same, but none has brought so much that is dif­fer­ent, nor such an aware­ness that di­ver­sity can­not be­gin and end with her.

The ju­di­ciary of Eng­land and Wales is in flux for rea­sons that go far be­yond di­ver­sity. At the se­nior end, changes to pay and pen­sions have made it a less at­trac­tive prospect to suc­cess­ful lawyers; at the other, huge cuts in le­gal aid have eroded the av­enues that have of­ten made a ca­reer in law ac­ces­si­ble to peo­ple from or­di­nary back­grounds. The more im­me­di­ate chal­lenge, though, comes from the surg­ing tide of pop­ulism sur­round­ing Brexit that news­pa­pers ex­ploited with head­lines like “En­e­mies of the peo­ple” and le­git­imises a pruri­ent scru­tiny of judges’ back­grounds to ar­gue that their iden­ti­ties pre­vent them from de­liv­er­ing un­bi­ased de­ci­sions.

Lady Hale is likely to be a strong and fear­less voice in de­fence of ju­di­cial in­de­pen­dence in an era when it has never felt more frag­ile. She has never been afraid to speak out, some­times at some per­sonal jeop­ardy. Her de­ci­sions have im­proved the lives of or­di­nary peo­ple, for ex­am­ple by recog­nis­ing the fi­nan­cial rights of un­mar­ried part­ners. But her pro­mo­tion is also a step for­ward for the ju­di­ciary as an in­sti­tu­tion. Many, in­clud­ing some of her col­leagues at the supreme court, see a trade-off be­tween di­ver­sity and merit. Oth­ers be­lieve the in­abil­ity to recog­nise ex­cel­lence in its many forms – not just the ex­ist­ing mould – is wast­ing ta­lent. That is dam­ag­ing to those ex­cluded, but also to the sys­tem shut­ting them out. Se­condly, the qual­ity of de­ci­sion-mak­ing is en­hanced when di­verse per­spec­tives, knowl­edge and wis­dom are brought to the mix. As Lady Hale has urged other women: “We owe it to our sex but also to the fu­ture of the law and the le­gal sys­tem to step up to the plate.”

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