The Big Interview: Baroness Hale

Natalie Bertram, April 2018

“I’m so sorry," began Lady Hale as she sat down with us in her office above the courtrooms, "I’m just finishing my cup of tea. I hope you don’t mind.” We didn’t mind. Whatever apprehensions we had about visiting the Supreme Court to interview its President were gone in a flash. She talks with a genial smile and has a humble air about her. Already we suspect her disarming style has been useful in her remarkable career, which was the topic of our meeting. And by her own account, Lady Hale has had a pretty unusual career on her way to becoming the first ever female president of the UK's highest court.

She reflects that studying law didn't exactly fit into her original career plans: “My best subject at school was history, but my headmistress didn't think I was a natural historian. She suggested economics, but I didn't fancy that. I thought, I really love the constitutional history of the 17th century, so I asked 'what about law?' and she supported me in that.”

You don't have to be fascinated by constitutional history to be a successful lawyer. But having a strong interest in the issues underlying the law is definitely a plus, as is having a mentor to help and support you. As Hale says, half joking: “One reason I chose law was because my headmistress didn't think I was clever enough to read history!”

Hale graduated top of her class from Girton College Cambridge in 1966. Following this, she chose the path less travelled by those heading to the judiciary: academia, teaching law at Manchester University. This makes her career path to the Supreme Court almost unique – until the appointment of Lady Black in October 2017, she was the only academic on the Supreme Court, having spent a significantly shorter time practising as a barrister than her peers. Prior to that, Hale was the first judge on the High Court to have spent her career in academia. She reflects: “It's difficult when you're an unusual candidate...”

“Those making the decisions had never worked with women on an equal basis. They'd had them as typists or secretaries, but not as colleagues.”

Of course, Lady Hale recognises that in her own career path it has been her gender which frequently made her an unusual candidate. “Those making the decisions had never worked with women on an equal basis,” she reveals of her path to the top. “They'd had them as typists or secretaries, but not as colleagues.” As a result, she explains it was “harder for them to judge who was a good candidate or not – or who had potential or not.” This was true across the roles and institutions Lady Hale worked in during her career.

“This doesn't apply to women any longer,” Hale believes, but the same problem still hampers the judiciary's current efforts to recruit people from non-traditional backgrounds and careers. “We shouldn't just look to the Bar,” she says, “but look to solicitors, people working as in-house counsel, people in public service and those working in regulatory bodies. They [the Judicial Appointments Commission] are beginning to think of that, but they're at the beginning. We can take further steps, and encourage those steps.”

The judiciary currently lacks diversity – very visibly so. Take the Supreme Court: only two of its 12 justices are women, nine were privately educated and zero are from an ethnic minority background. But why does diversity in the judiciary matter? “The number one reason is that we have a diverse population,” Hale responds. “The legal profession and courts are there to serve the whole population, so it ought to be the case that the whole population can recognise that these are their courts – that it's not just a small elite who are dictating their futures or indeed representing them in court.” By extension this means diversity in the barristers' profession is desirable too.

“It is quite a good idea if the legal profession and the judiciary are visible embodiments of equality and fairness.”

“Another reason is that the law is supposed to be all about equality and fairness – those are foundational values of the law. Therefore,” says Hale with her typical understatement, “it is quite a good idea if the legal profession and the judiciary are visible embodiments of equality and fairness.” On the impact of better diversity, Hale adds: “Its presence makes a difference to how others behave too. If you have a woman in chambers, for example, it makes it difficult for men to get together and practise the casual sexism that was very common when I was young. The same is true of racism. In a way, our absence is more potent than our presence. The fact we're not there enables certain things to happen and be said and be thought. It's much more difficult to do, say and think these things if we are there.”

As highlighted by the project First 100 Years, women have only been legally allowed to practise law since 1919. Although no longer considered to be particularly 'unusual candidates', women still don’t advance with the same ease that male lawyers enjoy. Lady Hale has defied many expectations – not least those of her pupil master: “It was a funny experience because he did not approve of women at the Bar. Halfway through my pupillage, I asked him why this was – after all, his wife was a doctor, so he obviously didn't disapprove of professional women. He said: 'Ah yes, but medicine is a caring profession. Women both can and should care. But the Bar is a fighting profession, and women shouldn't and can't fight.' In his experience, he found women at the Bar to be either too obstinate or too yielding and didn't have the judgement required for the Bar.”

Naturally, this stereotyping of women (and men) didn’t sit well with Hale, but she admits: “I was quite grateful for this conversation, because he was wrong about women, but he was right about the Bar. You do have to be prepared to fight for your client's case to the best of your ability. You mustn't give up just because you've had a bad day or you're not feeling well or you're in front of a particularly difficult judge.” Evidently, Lady Hale did find a way to both 'fight' and 'care', and thus embarked on a career of firsts: in 1984, she was the first woman to be appointed to the Law Commission, then in 2004 she was appointed as the first (and only) woman ever to become a Law Lord.

So clearly, women can reach the upper echelons of the legal profession, but is Hale the exception rather than the rule? For over 20 years now women and men have been entering the law in a roughly 60/40 split, but there are still significantly fewer women further up the ranks. Hale suggests one reason the Bar in particular has a problem is that “it's easier if you're in employment than if you're in independent private practice – you can't rely on anyone else's assistance or sharing of costs. That's one reason why some very able women choose different career paths from staying in private practice.” This fact inherently makes taking time off to start or raise a family that bit more difficult. That said, Hale says she knows “plenty of successful women barristers who have combined their career with their family lives.”

“If we had quotas... people would be able to say a person was only appointed because of the quota.”

To increase diversity, the suggestions of positive discrimination or quotas come up regularly, with advocates both for and against them. Quotas have their prominent proponents, but Lady Hale is not one of them. “I think it's very important, both for the public and the women or minorities themselves, that they are known to have been appointed on merit, and not just because they are a woman or belong to a particular minority group. If we had quotas other than the equal merit tie-breaker, people would be able to say a person was only appointed because of the quota. That's why I'm against it, although I do understand there is a level of frustration about the rate of progress.” But given the legal profession’s current lack of diversity, does that mean the best people for the top jobs at present are usually white men? Hale replies: “there's every reason to suppose that there is just as much ability and talent among women and minorities as there is among more visible groups.” Theoretically then, quotas shouldn't mean employers are picking people who are less capable. Still, Hale adds: “I know a lot of people who are very bothered that it might be thought they'd been appointed or promoted just because they are women – some may even be reluctant to apply because of that.”

Lady Hale is a proponent of 'affirmative action' instead – “going out and actively encouraging good women and minorities to put themselves forward, mentoring them, and devising a selection of tools that support their potential.” She also proposes “greater movement and promotion within the different ranks of the judiciary. Again, it's about devising suitable tools to assess who has the potential to move up through the system.”

“There are very good people who for one reason or another don't manage to get into independent practice at the Bar.”

We asked Lady Hale for some tips on pursuing a career at the Bar. Her first was to be aware of the poor odds of success: “You are investing a great deal of time, energy and money into something that may never happen, and that is however good you are. There are very good people who for one reason or another don't manage to get into independent practice at the Bar.” And getting in is just the beginning: the Bar is a daily test of your character and intellect.

It's interesting that when Lady Hale considers the most challenging parts of her career so far, her first instinct isn't making decisions on the Supreme Court (although that brings “a fresh intellectual challenge every day”) – instead she goes back to her time in the Family Division between 1994 and 1999. As a family judge in the High Court, she says, “almost everything you have to do is tough. Sometimes you're taking people's children away or sending people back across the world when they'd thought they'd escaped, or depriving people of money and property they don't think they should be deprived of.” These are parts of the job, she says, that “you have to get used to and do as well as you can.”

Here in the present day, Lady Hale’s work is no less challenging but much more varied. “Last week, we started with addressing whether every case in which the healthcare team wants to withdraw clinically assisted nutrition and hydration (formally known as artificial feeding and drinking) from someone who is in a persistently vegetative state or minimally conscious state has to come to court. [NHS Trust v Y and another] The second part of last week was taken up by a case all about stamp duty land tax – the tax on land transactions – and whether and how it applied to the acquisition of Chelsea Barracks by the Qataris. [Project Blue Ltd v Commissioners for Her Majesty’s Revenue and Customs] Can you imagine two more different cases? That in itself is a challenge.”

Despite all the challenges in pursuing a career at the Bar, Hale says that “if you're determined to do it, you should give it your best shot, provided you know all the disadvantages.” So what's her main piece of advice to the lawyers and barristers of tomorrow? “Seize the moment. If an opportunity comes along, instead of saying 'I'm not sure I can do that,' be realistic about whether you can do it or not, but if you think you can, give it a go. You never know what might happen.” Lady Hale’s own story shows you don’t have to follow a traditional career path to succeed, but knowing her own talents and pursuing her interests passionately has taken her to the very top.

 

This feature was first published in April 2018.

It was written and researched by Chambers' Natalie Bertram.