Difference in the House of Lords
DOI | 10.1177/0964663906063567 |
Date | 01 June 2006 |
Published date | 01 June 2006 |
Subject Matter | Articles |
DIFFERENCE IN THE HOUSE OF
LORDS
ERIKA RACKLEY
University of Leicester, UK
ABSTRACT
Taking the media reaction to Brenda Hale’s appointment to the appellate committee
of the House of Lords in January 2004 as its starting point, this article considers the
impact difference might have on understandings of both the judge and judging. It
argues that beneath the surface of the somewhat simplistic personality-based alterna-
tives posited in the British press lies a more organic response to the woman judge
generally and her perceived difference. Drawing on Hale’s potential for difference in
relation to familial (dis)connection, unwanted parenthood and indecent assault, the
article concludes that, far from being a malevolent threat, the perceived difference of
the woman judge offers an opportunity to consider the possibility of alternative
adjudicative approaches and new understandings of the judge.
KEY WORDS
adjudication; Brenda Hale; difference; House of Lords; judging; woman judge
INTRODUCTION
ONMONDAY12 January 2004, Brenda Hale became the first female
law lord, ending over 600 years of male exclusivity among the
members of the House of Lords’ appellate committee.1 As expected,
her appointment was widely reported in the British press. The combination
of her pioneering achievement, her candid exposure of the inherent sexism
in her profession (Verkaik, 2003), and her willingness to acknowledge the
importance of talking about ‘clothes, cooking and childcare’ (Hale, 2002: 12)
was seen by some, including Hale herself, as making her ‘just a bit different’
from her male colleagues (Hale, 2004a). Her perceived difference fuelled first
impressions of her as a judge with a ‘touch of humanity’ (Smith, 2004) and
SOCIAL & LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(2), 163–185
DOI: 10.1177/0964663906063567
164
SOCIAL & LEGAL STUDIES 15(2)
secured her place alongside the likes of Sex and the City actor Cynthia
Nixon, BBC Fame Academy winner Alex Parks, Swedish foreign minister
Anna Lidah, Canadian-Iranian photojournalist Zahra Kazemi and film icon
Katherine Hepburn in the Guardian’s list of ‘Women We Loved in 2003’
(Addley, 2003). Others, however, saw Hale’s elevation to the House of Lords
as ‘epitomis[ing] the moral vacuum within our judiciary and wider estab-
lishment’ (Phillips, 2003). In particular, her trailblazing appointment reignited
the Daily Mail’s vicious and highly personal campaign against an apparently
‘ferocious feminist’ intent on destroying the institution of marriage and other
family values (Doughty, 2003). As the ‘pro’ and ‘anti’ Hale camps battled it
out in the press, early indications were that Brenda Hale had the potential to
be ‘trouble with a capital H’ (Hardcastle, 2004).
However, as time has passed, the warnings of an imminent adjudicative
apocalypse seem somewhat misplaced. Brenda Hale appears to have success-
fully carved out a role as ‘one of our more thoughtful’ law lords (Anon,
2004a). In fact, she has been anything but trouble. Her subversive tendencies
appear – at least for the time being – to be in check, her potential difference
contained. In fact, as the novelty of a lady amid the lords begins to wear off,
one might legitimately begin to wonder what all the fuss was about: what is
so special about having a lady in the House? Put another way, can difference
make a difference to the House of Lords?
Taking the reactions to Lady Hale’s appointment as its starting point, this
article considers the impact the introduction of difference to the appellate
committee of the House of Lords might have on understandings of both the
judge and judging. It argues that beneath the surface of the somewhat
simplistic personality-based alternatives posited in the British press lies a
more organic response to the woman judge generally and to her perceived
difference; that, although strategically necessary, calls for a more diverse
judiciary are underpinned by ongoing feelings of distrust and suspicion of
difference. The woman judge continues to be seen as a threat to the aesthetic
norm; her presence on the bench is an inescapable irritant, simultaneously
confirming and disrupting its established masculinity. When the woman
judge speaks, she is marked by difference: ‘the voice of the woman/judge,
within the rhetorical context of adjudication, becoming its own dangerous
supplement (woman/judge)’ (Berns, 1990: 203). The woman judge inexorably
destabilizes and subverts the fraternal values of a legal culture where women
still remain at best ‘fringe-dwellers’ and, at worst, outsiders (Thornton, 1996:
3). Her perceived difference challenges traditional understandings of the
judge and judging, disrupting the previous uniformity of the bench and
revealing an unavoidable gender dimension to previous understandings of
adjudication: ‘To speak as a judge is to speak in a way that cannot be
bracketed. . . One cannot speak as a woman (judge) or even as (woman) judge.
Judge must stand alone if judgment is to carry weight’ (Berns and Baron,
1994: 127). Indeed, as Sandra Berns (1998: 33) suggests, to wish for otherness
in adjudication represents a move in a profoundly dangerous game. Moreover,
the extent to which women lawyers and judges speak in a ‘different voice’ –
RACKLEY: DIFFERENCE IN THE HOUSE OF LORDS
165
although perhaps intuitively attractive – remains hotly disputed among both
legal academics and professionals.2
However, this is not to deny the significance of recognizing Brenda Hale
as a woman. It is because she is a woman that we both look for and find her
‘difference’. To this end, my focus on a necessarily partial, yet illustrative,
snapshot of Hale’s jurisprudence in the High Court, Court of Appeal and
House of Lords is deliberate rather than definitive. Through an exploration
of Hale’s responses to the violence of familial (dis)connection, unwanted
parenthood and (in)visible context, it becomes clear that, far from being a
malevolent threat, the perceived difference of the woman judge offers an
opportunity to consider alternative adjudicative approaches and a way out
of the current judicial gridlock. In so doing, the pursuit of difference reveals
the contingency of traditional accounts of legal reasoning and the possibility
of alternative and diverse adjudicative voices, which are not necessarily
feminine or feminist in intonation.
JUST A BIT DIFFERENT
Perhaps unsurprisingly, Brenda Hale’s route to the bench has been ‘just a bit
different’ to that of her colleagues. Unlike the other law lords, all of whom
joined the bench from the Bar, Brenda Hale has spent most of her
professional life as an academic. Her ‘very unusual’ progression from the
academy to the bench via the Law Commission is the ‘fortunate’, yet
unsought, result of suggestions by others in light of her ability and
competence rather than of any clearly defined career aim (Cruickshank, 2003:
131). Yet although as a role model her style is more trailblazing than ‘typical’,
her somewhat haphazard approach has nevertheless earned her on a number
of occasions the soubriquet of ‘“the first woman who” . . .’ (p. 133).
Early indications of her pioneering spirit can be seen in her attendance at
a local boys’ grammar school in order to prepare for her Latin A-level and
later at Cambridge where, after winning an open exhibition to Girton College,
she was one of only seven women at the university reading law. On gradu-
ating top of her class with a starred First, she began lecturing at Manchester
University as well as, in her early years, flirting briefly with the Bar. Troubled
by a distinct lack of material addressing social welfare issues, she set about
filling the void. In 1978, she became the founding joint first woman to edit
the Journal of Social Welfare Law. Her influential guide to mental health law,
now in its fifth edition, and seminal work Women and the Law, co-authored
with Susan Atkins (Atkins and Hoggett, 1984), were soon joined by others
including The Family, Law and Society: Cases and Materials (Hoggett et al.,
1983/2002) and Parents and Children (Hoggett, 1977/2005).
In 1982, she was one of ‘a few practically minded academics’ and the first
woman from an academic non-practising background appointed as an assist-
ant recorder (Cruickshank, 2003: 131). Two years later, after 17 years as an
academic, she accepted ‘the best job in family law’ becoming the youngest
166
SOCIAL & LEGAL STUDIES 15(2)
and first female Law Commissioner (Bowley, 2004: 21). Over the next ten
years she was at the forefront of a number of groundbreaking changes to the
law on children, divorce and mental health; perhaps most notably as ‘chief
architect’ of the Children Act 1989, which effectively revolutionized the
relationship between children, parents and the law. She was also heavily
involved in the preliminary debates surrounding what eventually became the
Family Law Act 1996, including its ill-fated and highly controversial plans
for ‘no-fault’ divorce procedures.
In 1991, she became a founding member of the Human Fertilization and
Embryology Authority, chairing its groundbreaking ‘Code of Practice
Committee’ and was appointed a member of the Civil and Family Committee
of the Judicial Studies Board. In 1994, after ten years at the Law Commission
during which she had also taken silk, Hale was about to translate her visiting
chair at King’s College London into a full-time post and return to practice
when to her ‘amazement’ she became the first academic lawyer to be
appointed to the Family Division of the High...
LORDS
ERIKA RACKLEY
University of Leicester, UK
ABSTRACT
Taking the media reaction to Brenda Hale’s appointment to the appellate committee
of the House of Lords in January 2004 as its starting point, this article considers the
impact difference might have on understandings of both the judge and judging. It
argues that beneath the surface of the somewhat simplistic personality-based alterna-
tives posited in the British press lies a more organic response to the woman judge
generally and her perceived difference. Drawing on Hale’s potential for difference in
relation to familial (dis)connection, unwanted parenthood and indecent assault, the
article concludes that, far from being a malevolent threat, the perceived difference of
the woman judge offers an opportunity to consider the possibility of alternative
adjudicative approaches and new understandings of the judge.
KEY WORDS
adjudication; Brenda Hale; difference; House of Lords; judging; woman judge
INTRODUCTION
ONMONDAY12 January 2004, Brenda Hale became the first female
law lord, ending over 600 years of male exclusivity among the
members of the House of Lords’ appellate committee.1 As expected,
her appointment was widely reported in the British press. The combination
of her pioneering achievement, her candid exposure of the inherent sexism
in her profession (Verkaik, 2003), and her willingness to acknowledge the
importance of talking about ‘clothes, cooking and childcare’ (Hale, 2002: 12)
was seen by some, including Hale herself, as making her ‘just a bit different’
from her male colleagues (Hale, 2004a). Her perceived difference fuelled first
impressions of her as a judge with a ‘touch of humanity’ (Smith, 2004) and
SOCIAL & LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(2), 163–185
DOI: 10.1177/0964663906063567
164
SOCIAL & LEGAL STUDIES 15(2)
secured her place alongside the likes of Sex and the City actor Cynthia
Nixon, BBC Fame Academy winner Alex Parks, Swedish foreign minister
Anna Lidah, Canadian-Iranian photojournalist Zahra Kazemi and film icon
Katherine Hepburn in the Guardian’s list of ‘Women We Loved in 2003’
(Addley, 2003). Others, however, saw Hale’s elevation to the House of Lords
as ‘epitomis[ing] the moral vacuum within our judiciary and wider estab-
lishment’ (Phillips, 2003). In particular, her trailblazing appointment reignited
the Daily Mail’s vicious and highly personal campaign against an apparently
‘ferocious feminist’ intent on destroying the institution of marriage and other
family values (Doughty, 2003). As the ‘pro’ and ‘anti’ Hale camps battled it
out in the press, early indications were that Brenda Hale had the potential to
be ‘trouble with a capital H’ (Hardcastle, 2004).
However, as time has passed, the warnings of an imminent adjudicative
apocalypse seem somewhat misplaced. Brenda Hale appears to have success-
fully carved out a role as ‘one of our more thoughtful’ law lords (Anon,
2004a). In fact, she has been anything but trouble. Her subversive tendencies
appear – at least for the time being – to be in check, her potential difference
contained. In fact, as the novelty of a lady amid the lords begins to wear off,
one might legitimately begin to wonder what all the fuss was about: what is
so special about having a lady in the House? Put another way, can difference
make a difference to the House of Lords?
Taking the reactions to Lady Hale’s appointment as its starting point, this
article considers the impact the introduction of difference to the appellate
committee of the House of Lords might have on understandings of both the
judge and judging. It argues that beneath the surface of the somewhat
simplistic personality-based alternatives posited in the British press lies a
more organic response to the woman judge generally and to her perceived
difference; that, although strategically necessary, calls for a more diverse
judiciary are underpinned by ongoing feelings of distrust and suspicion of
difference. The woman judge continues to be seen as a threat to the aesthetic
norm; her presence on the bench is an inescapable irritant, simultaneously
confirming and disrupting its established masculinity. When the woman
judge speaks, she is marked by difference: ‘the voice of the woman/judge,
within the rhetorical context of adjudication, becoming its own dangerous
supplement (woman/judge)’ (Berns, 1990: 203). The woman judge inexorably
destabilizes and subverts the fraternal values of a legal culture where women
still remain at best ‘fringe-dwellers’ and, at worst, outsiders (Thornton, 1996:
3). Her perceived difference challenges traditional understandings of the
judge and judging, disrupting the previous uniformity of the bench and
revealing an unavoidable gender dimension to previous understandings of
adjudication: ‘To speak as a judge is to speak in a way that cannot be
bracketed. . . One cannot speak as a woman (judge) or even as (woman) judge.
Judge must stand alone if judgment is to carry weight’ (Berns and Baron,
1994: 127). Indeed, as Sandra Berns (1998: 33) suggests, to wish for otherness
in adjudication represents a move in a profoundly dangerous game. Moreover,
the extent to which women lawyers and judges speak in a ‘different voice’ –
RACKLEY: DIFFERENCE IN THE HOUSE OF LORDS
165
although perhaps intuitively attractive – remains hotly disputed among both
legal academics and professionals.2
However, this is not to deny the significance of recognizing Brenda Hale
as a woman. It is because she is a woman that we both look for and find her
‘difference’. To this end, my focus on a necessarily partial, yet illustrative,
snapshot of Hale’s jurisprudence in the High Court, Court of Appeal and
House of Lords is deliberate rather than definitive. Through an exploration
of Hale’s responses to the violence of familial (dis)connection, unwanted
parenthood and (in)visible context, it becomes clear that, far from being a
malevolent threat, the perceived difference of the woman judge offers an
opportunity to consider alternative adjudicative approaches and a way out
of the current judicial gridlock. In so doing, the pursuit of difference reveals
the contingency of traditional accounts of legal reasoning and the possibility
of alternative and diverse adjudicative voices, which are not necessarily
feminine or feminist in intonation.
JUST A BIT DIFFERENT
Perhaps unsurprisingly, Brenda Hale’s route to the bench has been ‘just a bit
different’ to that of her colleagues. Unlike the other law lords, all of whom
joined the bench from the Bar, Brenda Hale has spent most of her
professional life as an academic. Her ‘very unusual’ progression from the
academy to the bench via the Law Commission is the ‘fortunate’, yet
unsought, result of suggestions by others in light of her ability and
competence rather than of any clearly defined career aim (Cruickshank, 2003:
131). Yet although as a role model her style is more trailblazing than ‘typical’,
her somewhat haphazard approach has nevertheless earned her on a number
of occasions the soubriquet of ‘“the first woman who” . . .’ (p. 133).
Early indications of her pioneering spirit can be seen in her attendance at
a local boys’ grammar school in order to prepare for her Latin A-level and
later at Cambridge where, after winning an open exhibition to Girton College,
she was one of only seven women at the university reading law. On gradu-
ating top of her class with a starred First, she began lecturing at Manchester
University as well as, in her early years, flirting briefly with the Bar. Troubled
by a distinct lack of material addressing social welfare issues, she set about
filling the void. In 1978, she became the founding joint first woman to edit
the Journal of Social Welfare Law. Her influential guide to mental health law,
now in its fifth edition, and seminal work Women and the Law, co-authored
with Susan Atkins (Atkins and Hoggett, 1984), were soon joined by others
including The Family, Law and Society: Cases and Materials (Hoggett et al.,
1983/2002) and Parents and Children (Hoggett, 1977/2005).
In 1982, she was one of ‘a few practically minded academics’ and the first
woman from an academic non-practising background appointed as an assist-
ant recorder (Cruickshank, 2003: 131). Two years later, after 17 years as an
academic, she accepted ‘the best job in family law’ becoming the youngest
166
SOCIAL & LEGAL STUDIES 15(2)
and first female Law Commissioner (Bowley, 2004: 21). Over the next ten
years she was at the forefront of a number of groundbreaking changes to the
law on children, divorce and mental health; perhaps most notably as ‘chief
architect’ of the Children Act 1989, which effectively revolutionized the
relationship between children, parents and the law. She was also heavily
involved in the preliminary debates surrounding what eventually became the
Family Law Act 1996, including its ill-fated and highly controversial plans
for ‘no-fault’ divorce procedures.
In 1991, she became a founding member of the Human Fertilization and
Embryology Authority, chairing its groundbreaking ‘Code of Practice
Committee’ and was appointed a member of the Civil and Family Committee
of the Judicial Studies Board. In 1994, after ten years at the Law Commission
during which she had also taken silk, Hale was about to translate her visiting
chair at King’s College London into a full-time post and return to practice
when to her ‘amazement’ she became the first academic lawyer to be
appointed to the Family Division of the High...
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