Good for Lady Hale
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.”