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ThisinterviewwasoriginallypublishedinFeministLegalStudies(2008)16:237248

DOI10.1007/s1069100890905
Theoriginalpublicationisavailabletosubscribersatwww.springerlink.com.

AConversationwithBaronessHale

Introduction
The following textis based on a conversationbetween Professor Rosemary Hunter and
Baroness Hale of Richmond on 12 September 2007, which formed one of the plenary
sessionsattheSocietyofLegalScholars2007AnnualConference. TheSocietyofLegal
Scholars (formerly known as the Society of Public Teachers of Law) is the learned
society for those who teach law in universities and similar institutions, or who are
otherwiseengagedin legal scholarship,in theUKand Ireland.Annual Conferences are
the venue for meetings of the Societys various subject sections, together with a small
numberof plenary sessions. In2007, BaronessHales jurisprudence formedoneof the
themes of the Annual Conference, and several subject sections organised sessions in
which the papers focused on discussions of her judgments in the relevant area. The
plenary session was designed to complement the Hale jurisprudence theme, but also to
depart from the more familiar format of one or two speakers delivering papers.
Followingthe conversation, subjectsection convenors or session chairs wereinvited to
givesummariesofthediscussionsofHalejurisprudenceintheirsections,andtherewas
alsoanopportunityformembersoftheaudiencetoaskquestionsofBaronessHale.
The conversation was not recorded, and hence the following is not a verbatim
transcript.Rather,wehavereconstructedthetextoftheconversationfromourrespective
notesandrecollections.ThequestionswerepreparedbyRosemaryHunterandprovided

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toBaronessHalepriortotheplenarysession,givinghertheopportunitytoconsiderher
responsesin advance. However, sinceno recordwaskeptof thesubsequentdiscussion
andquestionperiod,wehavenotattemptedtoreproduceithere.

Conversation
RH:

AlthoughBaronessHalereallydoesneednointroduction,Illbeginbyrepeating
some of the wellknown details of her career. She was born in Yorkshire and
educated at Richmond High School for Girls and Girton College Cambridge,
where she graduated with a starred first and top of her class. She was initially
appointed as an Assistant Lecturer in Law at the University of Manchester in
1966,andtaughttherefor18years,becomingaprofessorin1986.Sheultimately
specialised in social welfare and family law, and was a founding editor of the
JournalofSocialWelfareLaw.ForashorttimeafterhercalltotheBarin1969,
shecombinedacademiawithparttimepracticeasabarrister.Muchlater,in1992,
shewasaskedtotrainasanassistantrecorder.She waspromotedtoRecorderin
1989,thesameyearinwhichshewasmadeaQ.C.underthecategoryemployed
barrister.
In 1984 she was the first woman and the youngest person ever to be
appointedtotheLawCommission,wheresheledateamworkingon familylaw
reform. In 1990 she became a founding member of the Human Fertilisation and
EmbryologyAuthority,andchaireditsCodeofPracticeCommittee.In1994she
wasappointedtotheFamilyDivisionoftheHighCourt,andin1999shewasthe
second woman to be appointed to the Court of Appeal and with it to the Privy

3
Council. In 2004, she became the first woman and the first mother to be
appointed a Lord of Appeal in Ordinary. She is also now the Chancellor of the
UniversityofBristolandVisitorofGirtonCollegeCambridge,somaintaining her
connectionswithacademia.
This session today was conceived as being something like the kind of
conversations that are held at literary festivals, where someone interviews a
famousauthorabouttheirwork.Andinasense,BaronessHale,youareafamous
authoritsjustthatyourwritingconsistsofjudgments,andacademicbooksand
articles. Im assuming that members of the audience will have questions about
yourjudgments,sowhatImintendingtodoistofocusonyourpublications,and
thenmoveontosomegeneralquestionsaboutyourcareerasawriterinvarious
capacities.
SoIwanttobeginwithAtkinsandHoggett,Womenandthe law,which
was published in1984 (Atkins and Hoggett 1984). It was one of the very first
booksofitskind,andIrememberasalawstudentinAustraliainthelate1980s
findinganddevouringthatbook.Sotellusthestoryof Womenandthelaw.How
diditcomeabout,howdidyougoaboutwritingit,andwhatwasitsreception?
BH:

Wewerefirstaskedtodoitintheearly1970s,byWilliamTwining,aspartofthe
Law in Context series. He was looking for something along the same lines as
Lester and Bindmans groundbreaking work on Race and law (Lester and
Bindman 1972). The original plan was a collaboration with a Manchester
colleague: I would concentrate on families and children and she would
concentrateon employment andpublic life. But forone reason and another that

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didnothappenandeventuallySusanAtkinsfromSouthamptontookoverthatpart
ofthebook.SheknewagreatdealmoreaboutthefeministwritingthanIdid,soI
learned a lot. When I first started I tended to believe what Id been told at
Cambridge that the law had been unfair to women in the past but that now
women enjoyed pretty much complete equality. Formally that might have been
true by the early 1970s. In reality, of course, it was not. I was also deeply
influenced by Professor Herma Hill Kay from Berkeley, who was a Simon
Visiting Professor in Manchester in the midseventies (she wrote the classic
AmericantextonSexDiscriminationwithRuthBaderGinsburg)(Davidsonetal.
1974).Sobytheendofthe1970sIwasatlastreadytowritethebook.
RH:

Andthebooksreception?

BH:

I didnt know much about the academic reception because Id just gone to the
LawCommissionwhenitcameout.Butweweredelightedtobeshortlistedfor
the Fawcett Prize (they alternate each year between fiction and nonfiction),
though disappointed when the judges described it as solid. Much later, other
peoplehavetoldmehowimportantitwastothemthen.Iwasthrilledtohearthat
youhadreaditinAustralia.

RH:

BeforeandafterWomenandthelawyouvepublishednumerousotherbooksand
articles from your academic work, and more recently many of your lectures,
speeches and conference papers have subsequently been published as journal
articles.Thesevariouspublicationshavefallenintothreebroadareas:familylaw,
mental health law, and women in the judiciary. And obviously there are
connections between those areas theres a concern for issues of equality and

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human rights that runs through your work. But I want to spend a bit of time
talkingabouteachofthethreeareas,beginningwithfamilylaw.
You first published Parents and children: The law of parental
responsibilityin1977(Hoggett1977),withsubsequenteditionsin1981, 1987and
1993. Your textbook Family, law and society: Cases and materials was first
published in 1983 (Hoggett and Pearl 1983), and has gone through several
subsequenteditionsandisstillgoing.
BH:

Yes,theresaneweditionforthcomingshortlynowmainlyinthecapablehands
ofLizzieCookefromReading.

RH:

AttheLawCommission, youledtheworkthatproducedtheChildrenAct1989
andtheFamilyLawAct1996andyouvealsopublishedanumberofarticleson
variousaspectsoffamilylaw.
I want to focusonone of those articles,The view from court 45, which
waspublished in the Child and Family Law Quarterly in1999 (Hale 1999). In
thatarticleyouexpressedconcernsfromtheperspectiveofatrialjudgeaboutthe
operationofthelawinthekindsofcasesyoudealtwithmostfrequently child
abduction, complex or intractable contact disputes, and child abuse cases. You
observedthatthelawinthoseareastendedtobeoppressivetowomenintheirrole
as theprimary carers of children, often in the context of domestic violence. Do
you still have those concerns, or do you think the situation has improved for
womensincethen?

BH:

TheperceptionIwasdiscussingarosefromthefactthatwomenwerealwaysthe
defendantsandinsomeareasthelawwasverytough.

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Inchildabductioncases,theHagueConventionwasdesignedtodealwith
the problem of noncustodial fathers abducting children from their mothers it
hadnt caught up with the more common situation where mothers were fleeing
with their children, especially where there was domestic violence thats still a
problem.It tendstobeassumedthatthehome countrycanprotectherandthe
childrenproperlybutthatmayverywellnotbeso.
Inrelationtocontactdisputes,thelawhasimproved.Iplayedasmallpart
in the developing recognition that violence towards the mother could also be
harmful to the children, which didnt seem tohavebeen thought of before, and
eventuallyleadingtothelandmarkCourtofAppealdecisioninReL.1
RH:

Andchildabuse?

BH:

I think thats pretty much the same as it was. The problem is that the children
havetobeprotected,eventhoughthemothersfailuretoprotectthemmaybethe
resultofherownentirelyjustifiedfear ofherpartner.

RH:

OK,nowmovingontopropertydivisioninfamilylawcases,inarecentarticlein
Australian Family Lawyer (Hale 2007), which was based on a plenary address
yougavetoaNationalFamilyLawConferenceinPerth,yourepeatedapointthat
you made in the Court of Appeal in SRJ v DWJ2 in 1999, and I have a fairly
lengthyquotationhere.Yousaid:

Re L (Contact: Domestic Violence) Re V (Contact: Domestic Violence) Re M (Contact: Domestic

Violence) Re H (Contact: Domestic Violence) [2000] 2 FLR 334. The first intimation of change,
accordingtoKaganasandDaySclater(2000),wasthe judgmentof Hale JinReD(Contact:Reasonsfor
Refusal) [1997]2FLR48.
2

SRJvDWJ [1999]2FLR176.

Itisinthecommunitysintereststhatparents,whethermothers
orfathers,andspouses,whetherwivesorhusbands,shouldhave
a real choice between concentrating on breadwinning and
concentratingonhomemaking and childrearing, and donot feel
forced, for fear of what might happen should their marriage
breakdownmuchlaterinlife,toabandonlookingafterthehome
and the family to other people for the sake of maintaining a
career.(Hale1999, 11)
Thatmightbe seen asasurprisingposition. I dontthink many feministswould
signontoapurehomemakingoptionorastraightchoicebetweenbreadwinning
and homemaking and as were aware, government policy also promotes the
benefitsofwomenworking,eventosomedegree.Icanseethepointthatwomen
(or men) shouldnt be economically penalised if the marriage breaks down
becausetheydidtakeonahomemakingandchildrearingrole,butdoyousupport
suchadivisionoflabourinfamiliesasageneralproposition?
BH:

Imgladyouaskedmethatquestion!
I would emphasise three words or phrases in that quotation. First:
parents, whether mothersor fathers, and spouses, whether wivesor husbands.
Soitsintendedtobegenderneutral.
Second:arealchoice. Itisnotforme,oranyoneelse,toprescribehow
people should arrange their lives but it is important that they should have real

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optionsandnotsuffertoomuchforthechoicestheymakeforthegoodofothers
aswellasthemselves.
Thirdly:concentrating on homemaking andchildrearing. Thatdoesnt
necessarilymeanthatitstheonlythingtheydoforthewholeoftheirlives.
But the reality is that society looks to the family to shoulder the main
burden of looking after, notonly the young,but also theelderly and the infirm.
Weneedthatworktobedone.Iamconcernedthatthatworkshouldgetitsproper
recognitionandreward,firstfromthefamilyforwhosebenefititisdone,andalso
fromthesocietywhichalsobenefits.
RH:

I know that you said mothers or fathers and wives or husbands, but in
practice, historically, its been a gendered division of labour, with women
performing the homemaking and childrearing and men performing the
breadwinning,soweretalkingaboutasocialcontextwhichisnotgenderneutral.

BH:

Quite so, but in my ideal world caring responsibilities would be much more
equally shared between the sexes than research tells us they are at present,
although things are changing. There is a widespread recognition of how
vulnerable women who undertake the caring role can be and a great deal more
sharingthanthereusedtobe.

RH:

Have you seen any changes in the cases that have come before you? Are you
seeingmoreofamixtureofroles,ordotheystillremainfairlytraditional?

BH:

Itsamixedpicture.Whilewomenareundoubtedlydoingfarmoreworkoutside
thehome,itslessobviousthatmenaredoingfarmoreworkinsideit.MrsWhite

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worked hard as a farmer as well as having children.3 Mrs Miller didnt work
outside the home after she married.4 Mind you, she didnt do much of the
houseworkeither[laughter] Andneithershouldshe!Shemadeotherkindsof
contributions.
RH:

InareviewofthebookofyourHamlynLectures,Fromthetesttubetothecoffin:
Choice and regulation in private life, published in 1996 (Hale 1996), Andrew
BainhamremarkedthatBrendaHalehasdoneasmuchasanyone,andmorethan
most, to bring about the changes that have made the law much more child
centred (Bainham 1997, 43132). In your view, how far have we come with
childrensrights,andhowmuchfurtherdowehavetogo?

BH:

ItsinterestingthatAndrewshouldsaythatIdidplayapartintheChildrenAct
1989, which not only emphasised that the childrens welfare is paramount, but
also required that their wishes and feelings be taken into account by courts and
otherdecisionmakers.Butwestillhaveawaytogoinactuallylisteningtowhat
childrenhavetosayandincludingthemintheprocess.Howweshoulddothisis
ahottopicamongfamilylawyersatthemoment.Iwasconcerned,forexample,
intheWilliamsoncase5 aboutbanningcorporalpunishmentinallschools,thatwe
had no intervention from oneof the childrens rights NGOs to speakup for the
childrens rights especially asthe Government had been so slow to argue that
the ban was justified in the childrens interests. The parents and teachers had

WhitevWhite [2001]1AC596.

MillervMillerMcFarlanevMcFarlane [2006]2AC618

R(ontheapplicationofWilliamson)vSecretaryofStateforEducationandEmployment[2005]2AC

246.

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arguedthatthebaninterferedwiththeirrighttomanifesttheirreligiousbeliefsin
the meritsof corporal punishment but weeventually heldthat it was justifiedto
protecttherights,notonlyoftheirchildren,butofchildrengenerally.
RH:

Thecourse of reforms in family law has not always run smoothly. Someofthe
thingsyourecommendedasaLawCommissionerhavenotbeenadopted,andthe
law hassubsequently developedinotherways. So Im wonderingwhether there
areanyofyourrecommendationsthatyouparticularlyregretnothavingcometo
fruition,andwhetherthereareany furtherreformsinfamilylawthatyouwould
liketorecommendatthisstage?

BH:

Imnotsupposedtomakerecommendationsasajudge!Butinfact,mostofmy
recommendations as a Law Commissioner were implemented. Whenever I hear
complaints about the failure of government to implement Law Commission
recommendations,Ifeelsomewhatembarrassed,becausetheFamilyLawteam
both before and during my time had a remarkably good record of
implementation.
Idoregretthefailuretoreformthegroundsfordivorce.

RH:

Canyouexplainabitfurtherforthoseintheaudiencewhoarentfamilylawyers?

BH:

Thesole ground for divorce is that the marriage has irretrievably broken down,
butthathastobeevidencedbyoneoffivefactstwooftheseostensiblyrequire
fault, but are most frequently relied upon because they are quick the others
requireperiodsofseparation.Werecommendedthattheallegationofirretrievable
breakdown should be sufficient in itself, without having to go into why the
marriage hadbrokendownbut we also said there should be a12monthperiod

11
betweenthe statementof breakdown beingmade andthedivorcebeinggranted,
so that parties could get their financial affairs and the arrangements for their
childreninorderbeforethedivorceratherthanafterit.
To its credit, the government took up the recommendation, but
complicatedtheprocessbyrequiringthatthingsshouldactuallyhavebeensorted
out before the divorce could be granted. And then Parliament complicated it
furtherbyinsistingondifferenttimetablesindifferentcases.Thewholethinghad
becomesocumbersomeastobeunworkableinpractice,soIwasnotsorrytosee
itdropped,althoughImightbecynicalabouttherealreasons...
RH:

Now, you neatly avoided the question about further recommendations or


suggestionsforreform.Isthereanythingthatyouthinkparticularlyneedstobe
addressedatthisstage?

BH:

Notsomuchinthesubstantivelaw,apartfromthegroundfordivorce(whichwe
tried) and financial provision on cohabitation breakdown (which the current
Commissionhavetackled),butinthefamilyjusticesystem.Atpresent,separating
familiesmay have to gothrough fivedifferentsets of procedures,andnot all in
the same place: protection from violence, arrangements for the children, the
divorceitself,financialprovisionandpropertyadjustment,andchildsupport.We
shouldbelookingforaonestopshop.
Eveninthesameproceedings,therecanbedisagreementandinefficiency
in deciding something which should be quite simple: see the sorry tale in the
Augustissueof FamilyLawofthegrandparentsattempttoapplyforcontactwith
their grandson after their ownsons death (Anonymous Grandfather 2007). The

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problemis theunderstandablereluctanceof family judges todecidecaseswhich
couldbeagreedbetweentheparties,andcasemanagementsystemswhichseemto
presentendlessopportunitiesfordelayingthosedecisionsthathavetobemade.I
wouldlike that to be given a good shakeupButIm notthe Presidentof the
FamilyDivision!
RH:

Turning now to the area of mental health law, you first published your book
Mental health law in 1976 (Hoggett 1976), with the fourth edition published in
1996. And at the Law Commission, you were responsible for the Report on
mentalincapacity(LawCommission1995),whichdealtwithdecisionmakingon
behalf of people who are unable to make decisions for themselves, and which
resultedintheMentalCapacityAct2005.Imwonderingwhatwasthesourceof
yourinterestintheareaofmentalhealthlaw?

BH

As with many junior lecturers, I was put to teaching law for.... Law for
engineersisprobablytheleastpopular,butluckilyIdidnthavetodothat.Iwas
asked to teach law for whatwerethen child care officers. Thatwas alright I
knewabitaboutchildcarelaw.
But then they changed into generic social workers who had to know
somethingaboutalltheirclientgroupssothecoursehadtochangetooithadto
incorporatearangeof otherissues,including mentalhealth. Nooneknew much
aboutit,therewasverylittlewritten,andsoI decidedtowriteatextbooktoteach
bothmeandthem.Itwasactuallyaveryexcitingtimeinmentalhealthlaw,asthe
Mental Health Act 1959 was coming under attack for its failure to protect the
patientshumanrights.

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Later, other mental health professionals found the book useful and later
still even the lawyers began to do so: it has, for example, been quoted with
disapprovalintheCourtof AppealandthenvindicatedintheHouseofLordsin
theBournewoodcase.6
RH:

Andyouvemorerecentlypublishedaseriesofarticlesontheinteractionbetween
mentalhealthlawandtheHumanRightsAct1998. Whatdifferencedoyouthink
theHumanRightsActhasmadetothisarea?

BH:

The point I was making in those articles was that the European Convention on
Human Rights ismoreeffective inpreventingtheinfringementofpeoples civil
liberties than in positively securing the provision of appropriate treatment for
peoplewhoneedit.Article5protectsagainstarbitrarydeprivationoflibertyand
article 6 requires access to a court for the fair trial of ones civil rights and
obligations.Article3protectsagainstinhumanordegradingtreatmentandarticle
8 protectsbodilyandmental integrity, butboth are subjectto medicalnecessity.
InWilkinson7 andMunjaz8 intheCourtofAppeal,wedidtrytodeveloptheseto
give some protection against forcible treatment and the use of seclusion in
psychiatric hospitals. Wilkinson was not appealed to the House of Lords, and
subsequently the government has found it useful to be able to argue that in an
appropriate case the merits of a decision to impose forcible treatment can be

RvBournewoodCommunityandMentalHealthNHSTrust,exparteL[1998]1AllER634(CA) Rv

BournewoodCommunityandMentalHealthNHSTrust,exparteL[1999]1AC458(HL).
7

R(ontheapplicationofWilkinson)vBroadmoorHospital [2002] 1WLR419.

R(ontheapplicationofMunjaz)vMerseyCareNHSTrust[2004]QB395.

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subjecttojudicialdetermination.MunjazwasappealedtotheLords,9 whodidnot
like our insistence that Ashworth hospital should follow the Mental Health Act
Code of Practice unless departure was justified in the individual case. It was
worryingthattheDepartmentofHealthshouldsupportAshworthspositionrather
than its own Code of Practice. But it also shows how difficult it is to use the
Conventiontohelpeventhosewhoaredetainedinhospital,letalonealltheothers
whoneedhelpwhichtheywantbutcannotget.
RH:

JustonthesubjectoftheHumanRightsAct,Iwanttoaskyouaboutapointthat
was made by Dame Sian Elias in her paper yesterday (Elias 2007). She argued
that the dominant tradition of legal positivism has meant that courts ethical,
political and constitutional thinkinghas not been highly developed, and that the
advent of Human Rights Acts has made new demandson the courts todevelop
theircapacitiesin thatarea andto makeuseof a widerrangeof referencesthan
they have traditionally done. Im wondering first, whether you agree with that
characterisation,andsecondly,howyouthinkthesedevelopmentsareprogressing
intheUK?

BH:

Yes,Idoagree.Butwearetryinghard,ledbysomeoutstandingjudgessuchas
Lord Bingham and Lord Steyn. The Law Lords are not entirely strangers to
constitutional and human rights adjudication, because they have sat for a long
timeasaconstitutionalcourtforthoseCommonwealthcountrieswhichhavekept
therightofappealtotheJudicialCommitteeofthePrivyCouncil.Andwerenot
justdoingitonour own wehave a rangeofresourceswecandrawupon: from

R(ontheapplicationofMunjaz)vMerseyCareNHSTrust[2006]2AC148.

15
international human rights instruments, the example of courts elsewhere in the
world,especiallyinCanadaandSouthAfrica,andofcourse Strasbourg. We are
notafraidtolookforguidancefromabroad.
RH:

Youvegivenanumberoflecturesand addressesconcerningtheneedtoappoint
more womento the judiciary. The one Iparticularly wantto draw uponhere is
Equalityinthejudiciary:Whyshould we wantmorewomenjudges?,whichwas
given to the 2000 SPTLconference, andpublished in PublicLawin2001 (Hale
2001). In that paper you saw powerful arguments for a more diverse and
representativejudiciarybasedonequalopportunityforindividualcandidatesso
that all candidates have a chanceof beingselected and democratic legitimacy
forthe benefit ofsociety asawhole.But you werecautious about the argument
that womenjudgescan orshouldmake adifferenceindecisionmaking. Your
objections included the need for judicial impartiality, the fact that a judges
experiences and predispositions may have more to do with factors other than
gender,andthefactthatexpectationsaboutmakingadifferenceputtoomuchof
aburdenuponthefewwomenjudgesthereare(Hale2001,p.501).
More recently, Erika Rackley in her article Difference in the House of
Lords (Rackley 2006), and in thepaper she gave yesterday (Rackley 2007), has
soughttodemonstratethedifferenceyouhavemadein,assheputsit,render[ing]
contingentparticularbutdominant formsof reasoning, and point[ing]theway
towards new and/or previously overlooked approaches to judging and
understandingsofthejudge(Rackley2006,182). Inlightofthat,Imwondering
whether youre now prepared to embrace the argument that women judges can

16
makeadifference,andalsowhetheryoustillfinditburdensometobeperceived
inthatway?
BH:

My argument was that women judges should not be expected to make a


difference, for the reasons I gave. I have known women judges, finding
themselvestheonlywomansittinginalargecourtcentre,whofinditaburdento
beaskedoverlunchtogivethewomanspointofviewonaparticularcaseas
iftherewereeversuchasimplethingasthewomanspointofview.
Butthatdoesnotmeanthatwedonotmakeadifference.AsChiefJustice
Beverley McLachlin has put it, we lead womens lives: we have no choice
(McLachlin 2003). One of my objectives at this conference was to find out
whetherdispassionatescholarsthoughtthatmyexperienceofleadingawomans
life had made a difference to my own judging, let alone to the judging of my
colleagues.IthinkithasshownthatinsomeareasatleastIdomakeadifference
themostobviousbeingchildbearingandsexuality.
ButIthinkwomenmaymakeadifferenceinotherwaystoo:forexample
by making it difficult for their male colleagues to voice certain views that they
mightotherwisehavebeenhappytovoiceorbybringingdifferentperceptionsto
thetaskoffactfinding whichiswhatmostjudgesdomuchofthetime.

RH:

And following on from that, there was some discussion in the same session
yesterdayafternoonabouttheinfluenceofhavingafamilylawyerontheHouseof
Lords.Doyouthinkyoumakeadifferenceasafamilylawyer?

BH:

OfcourseIm not the first familylawyer ontheHouseof Lords. Lord Scarman


wasa familylawyer,andsowasLordSimonofGlaisdale.ButIamthefirst for

17
some time and we bring a different dimension because of our different judicial
experience rather than passing judgment on the past we have been trying to
rebuild shattered lives for thefuture. Weareboundtopickupaconcern for the
vulnerableanddefenceless.
RH:

Now comingback to The view from court45, you began that article by talking
aboutyourdevelopingperceptionasajudgeoftheFamilyDivisionthatmostof
my time was spentoppressing women: specifically, mothers (Hale 1999, 377).
DoyouhaveasenseabouthowyouspendyourtimeontheHouseofLords?Are
you oppressing anyone there? Is it just a general mix of cases, or are there
particularmattersthatseemtopredominate?

BH:

The people we most conspicuously oppress are the counsel before us and the
judgesinthecourtsbelow!
Thecasesareageneralmix,butthereisapolicyofhorsesforcourses
soI tend togetpickedtositoncases involving mentalhealth,women,children
and equality issues, but also human rights and migration cases, which come up
veryfrequently.IwaspleasedtoseethattheSLSnowhasamigrationlawgroup,
because this is a vast areaof law and practice about which we allhave to learn
veryquicklywhenwereachtheappellatecourts.
But we all do everything, so recently I sat on my first tax case a very
interesting one for me, as it was about whether the antiavoidance provisions
applied to a husband and wife company where the profits were earned mainly
from the husbands skills but distributed mainly as dividends to them both
equally.

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SofarIthinkIcansafelysaythattherehavebeennoboringcases.
RH:

And thinking about your different experiences in the High Court, the Court of
AppealandtheHouseofLords,youvesaidthatyouveenjoyedthelessmacho
atmosphereoftheHouseofLordscomparedtotheCourtofAppeal(Hale2004).
Im wondering if wouldcare toelaborate on what it is that makes the Court of
AppealmoremachoandtheHouseofLordslessso?

BH:

Oh, the things one says that come back to haunt one! Yes, I did describe the
HouseofLordsaslessmacho.
The Court of Appeal seems full of big men, exuding both physical and
intellectualpower,andatleastintheCriminalDivisionworkingatafuriouspace.
The House of Lords is calmer and more reflective, though working just ashard
thesedays.
Havingsaidthat,therewasalsomorediscussionaboutcasesintheCourt
ofAppeal,before,duringandafterthehearingwhereasintheHouseofLordsits
more solitary, theres much less discussion amongst the members of the court
beforeandduringthecase.

RH:

I was going to ask about that about how the dynamics work in each court in
relationtodiscussingcasesandproducingjudgments.

BH:

IntheCourtofAppeal,threememberpanelstendtosittogetherforthreeweeks
atatime.ThePresiderallocatestheleadordonkeyworkjudgmentsinadvance
eachweek.ThepanelmeetsinthePresidersroomtodiscussthecasebeforethe
hearing and the discussion continues in the breaks during the hearing and
afterwards.

19
IntheHouseofLords,theleadisnotallocatedinadvanceandthereisno
organised discussion before or during the hearing. Afterwards, when the
doorkeepers shout clear the bar and we are left alone in thecommittee room,
eachjudgegiveshisorherpreliminaryviewsastotheoutcomeofthecase,with
reasons,workingup in orderofseniority fromthe most junior. Its an awesome
taskwhenyoubegin. Once itsclearwhattheresult is likelytobe, itisdecided
whowill write theleadopinion,but the Presiders certainlydo the lionsshare.
After all, thecasesareoften veryimportant andonappealfromthemostsenior
judgesin thecourtsbelow.Thereisstillroomfordiscussionand for changesof
view, but the initial process does tend to solidify views. I sometimes wonder
whether this accounts for the number of cases in which we have five separate
opinions.Thereseemstobe amoreopendiscussioniftheresagapbetweenthe
endofthehearingandourmeeting(usuallybecausepeopleneedtogetawayfor
othercommitments).Thenwecanbemorerelaxedandinformal,sittingroundthe
tableinourownconferenceroomratherthaninthecommitteeroom.
RH: Your published work and the discussion weve been having today illustrate the
ways inwhich youvereflectedon your experiences and theprocess ofjudging.
Do you think its important for judges to judge reflexively to stand back and
reflectontheirwork,tobealerttohabitsofthoughtthattheymightbeproneto,
ortolegalstraitjacketsthattheymightfindthemselvesworkingwithin?
BH:

YesI do think its important. I havehadto adapt to three verydifferentroles in


thecourseofmycareer.AsanacademicIwasexpectedtostimulatemystudents
enthusiasmforthelawandtohavemyownideas,butnottoimplementthem.As

20
a Law Commissioner I was expected to have ideas, but to translate them into
workableandacceptablelawreformwhichismuchharderthanitsounds.Asa
firstinstancejudge,oneisnotexpectedtohaveideas,buttodecidethefactsand
apply the law which others have decided. Further up the system, there is more
scopeforcreativethinking,butwithinsomeratherilldefinedlimits,whichIam
stilltryingtounderstandmainlybyobservingsomeofmyseniorcolleaguesin
action.Itishardtodiscernwhentheywillthinkthattheycandevelopthelawand
whentheywillthinkthatitshouldbelefttoParliament.
In Equality and the judiciary, I invited comment on Howwhatpasses
formy thinking [has] changed from when I wasthe academic whocowrote the
first book on Women and the law, through when I was the Law
Commissionertomy timeon theBench (Hale 2001, 500). Eventually I hope
thatlegalscholarswillanswerthatquestionforme.
RH:

Finally, I want to turn to the issue of unfriendly press commentary, which is an


issue faced by many Law Commissioners and women judges. Youve been
subjected to personal attacks, and attributed by the Daily Mail with single
handedly causing or attemptingto cause thecollapseof westerncivilization.
Hasthemediacommentaryyouvereceivedaffectedyouinanyway?

BH:

On the list of questions you kindly provided me with before today, there was a
second part to this question, which was how are you affected by academic
commentaryonyourdecisions?

RH:

Iwasgoingtoaskthatasafollowup.

21
B.H.: Welltheanswertobothisthesame. Iampleasedwhentheyapproveandsorry
when they disapprove. I am disappointed, upset even, when they get it wrong.
Sometimes that is my fault in not explaining myself properly, which is
particularlyupsetting, butoftenwiththepopularpressitistheirfault.
Butcriticismisalwayssalutary,and soistheopportunity to reflectupon
whatoneisdoingasinthisconversation.Thankyouforhavingpreparedsucha
thoughtprovokingsetofquestions!
RH:

Andthankyouforprovidingsuchthoughtfulandgenerousanswers.

Acknowledgements
Wewouldlike to thank ProfessorCelia Wells,then Presidentofthe SLS, forinviting ustoparticipate in
the conversationreproduced above. We would also like tothank the members of the audience for their
overwhelmingly positive and enthusiastic response to a conference plenary session that adopted a novel
format.

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