In a year not short on drama, it was one of the great moments of 2019. After the Queen agreed to prorogue parliament for five weeks at Boris Johnson’s request, and after the English and Scottish courts could not agree whether the suspension was lawful, in September it was left to the supreme court to resolve the issue. And over the days of deliberation that followed, Brenda Hale came into her own. On 24 September, she announced the court’s blistering judgment: “The prime minister’s advice to her majesty was unlawful, void and of no effect… The prorogation was also void and of no effect. Parliament has not been prorogued.” Her tone was emphatic, delivered in an austere black dress with a huge silver spider brooch crawling up her right shoulder. The ruling delivered the ultimate slap down for Johnson; there was even talk that the prime minister might have to resign. MPs returned to work the following day.
For many outside the law, it was the first we had seen of Brenda Marjorie Hale, but already she had decades of experience as a glass-ceiling smasher. In 2004, she was made Britain’s first female law lord. In 2009, she became the first woman to serve on the UK’s new supreme court; in 2017, she became its first woman president. Already dubbed “the Beyoncé of the legal world”, after the prorogation ruling Baroness Hale of Richmond became a household name – a septuagenarian rock star. There were calls for the spider brooch to be given its own Twitter account, and fans could buy spider-brooch T-shirts and an illustrated children’s book celebrating Hale’s journey from Yorkshire schoolgirl to head of the UK’s highest court.
Rarely has so much been projected on to one woman. Although the judgment was made unanimously by 11 justices, it was regarded by some as a personal intervention – an expression of Hale’s liberal beliefs. And however many times she said that the brooch was just a randomly chosen piece of jewellery, it took on a larger metaphorical significance – a reference to the web Hale had spun to trap an unruly government. Of course, this was nonsense: as all the judges insisted, they were simply ruling on whether the suspension of parliament had been lawful or not.
Now, four months later, it’s all over. When Hale turns 75 on 31 January, she will have to retire – because that is the law. We meet at Middlesex Guildhall, home of the supreme court in Parliament Square, Westminster. It’s a funny mix of old and new, fusty and modern. The library is grand, wood-panelled with stained-glass windows, hung with portraits of judges past. The toilets, meanwhile, are very much 21st century – unisex and fitted with sanitary bins. A procession of boisterous schoolchildren snakes through the entrance. The supreme court prides itself on its openness to the public.
Hale’s head of press, Janet Coull Trisic, briefs me before we start. She says Lady Hale would like me to mention a series of portraits by the British artist Catherine Yass (featuring female legal pioneers, Hale among them) that was recently unveiled here, celebrating 100 years of women in the legal profession. She says Lady Hale will not answer any questions she considers political or inappropriate. It all sounds terribly formal, but I’m sure we’ll warm up once we get going. After all, we have so much in common: we both come from the north, were state educated, and work in professions with more than their fair share of public school alumni.
Hale is waiting for me in her office – diminutive, twinkle-eyed, razor-sharp. She wears a maroon dress, maroon shoes and sits in a maroon chair. The dress is offset by a silver brooch: another eight-legged creature, this time an octopus.
I compliment her on the unisex toilets and tell her I reckon a male president would have run a mile from such loos. She smiles. “Yep. Well, he might!” But in a flash she turns fierce. “Don’t stereotype all male judges,” she says. “Don’t make me complicit.” She is quick to jump on anything she sees as an attempt to pigeonhole or put words into her mouth.
Like the library, Hale is a funny mix of old and new, fusty and modern. She may be on the verge of retiring, but she makes it clear that she is not about to dispense with propriety. While US judges are political appointees, British judges are not allowed to make partisan pronouncements – as she reminds me at every opportune moment.
Is she dismayed that she has to quit just as her career is reaching new heights? In the US, Ruth Bader Ginsburg, associate justice of the supreme court, is still going strong at 86. “I actually think 75 is fine. Seventy I think is too young.” But she’s barely done two years in the job, and seems to be having the time of her life. “You’re doing your best to goad me into it, but I don’t feel that,” she says, firmly. “I have been a full-time judge for 26 years. It’s a long time, and it’s time to leave it to the others to get on with the job.”
The supreme court is a tribunal of last resort, focusing on cases of the greatest public and constitutional importance. The 12 judges rule on points of law – ie whether the law has been applied correctly rather than whether the right verdict has been reached. Only a few minutes before our interview, the court handed down another significant judgment – and again the government was found wanting. Five supreme court judges, including Hale, ruled that the Home Office falsely imprisoned asylum seekers, without having proper policies to determine whether an individual poses a risk of absconding.
“The law is quite clear,” Hale says. “You can only lock asylum seekers up if there is a risk of absconding, and you’ve got clear guidelines on how you decide. And the government’s guidance didn’t even say that’s the only basis on which you can lock them up. So you can imagine their poor case workers going through this guidance and not addressing their minds to the right question.”
Does Hale think Britain is becoming a crueller country? She looks at Coull Trisic, who sits between us.
“I’m not sure that’s a legal question, is it?” Coull Trisic says.
“No, it’s not a legal question at all,” Hale says. “So I’m not sure that it’s proper for me to answer it. I may have my personal opinion about it.”
Can I ask your personal opinion on whether we’ve become a crueller country?
“You can ask me all sorts of things, as long as you accept that there are certain things that are not appropriate for me to talk about. I’ve got to be very careful not to look as if I’m making political comments.” Silence. Hale is brilliant at saying just as much as she wants, and not a word more; she simply comes to a polished stop and waits.
Is there a judgment she look backs on that she is most proud of, that she would take to a desert island? She beams. “Well, it’s funny you should put it that way, because I’d probably have great fun working out my eight Desert Island Judgments. In fact that’s a nice thought, and thank you for it.”
OK, let’s hear them.
“I’d have to go away and think about eight.”
What about three?
“Number one would probably be the prorogation case, where we said it was not within the power of the prime minister to suspend parliament for such a long time at such a critical moment. That’s quite a source of, not pride, but satisfaction.”
Why does it mean so much to her? “Well, it means a lot to the constitution.” She refers me back to the 17th century and the constitutional settlement, making strong eye contact throughout. I can’t help feeling she’s testing me. “We’ve all got a very clear understanding of the way the constitutional settlement worked out then, so we were acting in support of that.”
Hale moves on to the second of her three favourite judgments. In 2011, the supreme court ruled that a mother who was due to be deported to Tanzania should be allowed to stay: the interests of her children took priority. “The government conceded that it would be a disproportionate interference with their rights to deport the mother. So that established taking account of the interests of children who were affected by all sorts of governmental decisions.”
Her third choice is another 2011 judgment which established that domestic violence does not have to be physical. “We said, no, it involves all kinds of domination and abuse. Psychological domination – what we now call coercive control. We didn’t have that phrase then.” Hale explains the impact of the judgment by referencing the fictional case of Rob and Helen Titchener in The Archers, which climaxed in her stabbing him after years of coercive control. As she does, I see what a wonderful teacher Hale must be. She relates the storyline with total recall and explains its significance with perfect clarity. “The Archers educated the public, because the public saw what that man was doing bit by bit: destroying that woman’s personality by making her leave her job, cutting her off from her family, marrying her without anybody else being present, confiscating her mobile phone, stopping her driving, probably making her pregnant against her will. We could all see that. But of course, the family and neighbours couldn’t.”
After this judgment, Hale was harangued by elements of the press who regarded the supreme court as intrusive and nannying. “Thank goodness Lady Hale has never set foot in our home, or I’d be sleeping under Blackfriars Bridge tonight,” wrote columnist Cristina Odone in the Telegraph. “I am, you see, guilty of domestic violence: I shout at my husband on a regular basis.” I mention Odone’s comment. “Yes, but that’s not what it was about,” Hale says curtly. “It wasn’t about shouting. It was about something more insidious than that.”
Women are at the heart of two out of three of your favourite judgments, I say. She nods. “I think a sense of the position of many women, and the necessity of the law to understand that position, is an important part of my work.” When she was appointed a law lord, Hale created a coat of arms for her new title bearing the motto Omnia Feminae Aequissimae, meaning “women are equal to everything”. But her feminism has been used against her by the right. In a particularly venomous attack in 1995, the Daily Mail accused Hale of having “her fingerprints all over some of the most revolutionary draft bills” the Law Commission had ever produced, and being “a feminist of the kind who would like to see changes in the way society is organised”.
While it is true that Hale has always championed women’s rights, it’s less clear that she is the anti-establishment radical both her critics and fans describe. Her parents were both headteachers, and her father’s best friend was the local vicar. She may cling to her beloved north Yorkshire roots, but you wouldn’t know it from the way she talks: path is “parth”, room is “rum”. She frequently throws Latin expressions into casual conversation (“Mirabile dictu”), and at times her language is so archaically correct that she might have stepped out of a Jane Austen novel.
Hale makes a point of the fact that, unlike most of her male peers, she did not attend public school; but she did go on to Cambridge University from grammar school. Two facts invariably quoted in the official biographies are that she graduated in 1966 with the only starred first in her year, and in 1969 passed her bar exam with the highest overall mark. At university, she was one of only six women studying law, in a year group of more than 100. Rather than being anti-establishment, she took the establishment men on at their own game and trounced them. I ask if she was always phenomenally clever. “Well, that’s for others to say,” she replies.
Never does she sound more establishment than when I ask her, at the beginning of our interview, what I should call her – Brenda or Lady Hale. I assume it’s going to be Brenda. But Hale looks at Coull Trisic and says, “Well, Lady Hale is the correct form of address.”
“Yes, I call her Lady Hale,” Coull Trisic agrees.
I swallow loudly, momentarily lost for words. I hadn’t expected Hale would have a touch of the Ben Kingsleys (the actor insists on being called Sir Ben).
“Some people do call me Brenda,” she adds. But it’s clear that she does not want me to be one of them.
“My PA, Ayo, who has been with me many years still calls me Dame Brenda,” she says. She is not offended that Ayo is still an honour behind – she finds it amusing. “Oh,” I say, and swallow loudly again.
Brenda Hale was born in Leeds and grew up in Richmond. She talks about the town with huge affection: the medieval castle, the cobbled market place, the close community. She and her two sisters were all head girls at the local girls’ grammar school, and Hale says she owes much of her success to her parents, who brought their daughters up to believe they could achieve anything; gender was no barrier. They assumed their girls would go to university, preferably Oxford or Cambridge.
Hale is often compared to Bader Ginsburg, and there are many obvious similarities: both are professors; both made their name in academic law; both serve on the supreme court; both were from non-legal families, triumphed over male hegemony in the judiciary and have rock star soubriquets (while Hale is Beyoncé, Ginsburg is known as the Notorious RBG). But there are also significant differences. In 2008, they gave a talk together in the US and were asked what the professional responsibility of a lawyer was. After Ginsburg replied that a lawyer had to “make things a little better in your community, your nation and your world”, Hale responded, “I want to be more down to earth – the greatest challenge for the legal profession is to be honest, and it’s the first duty.” While Ginsburg is a self-proclaimed idealist, Hale prefers to see herself simply as a practitioner.
In 1984, Hale became the first woman and the youngest person appointed to the Law Commission, at the age of 39. It was here that she helped devise the Children Act 1989, which allocated duties to courts, local authorities and parents to ensure children are safeguarded. This is another reform she looks back on with satisfaction – and another that caused controversy. Columnist Melanie Phillips wrote in the Daily Mail that, as the “principle architect” of the Act, Hale had “helped destroy the authority of adults and made it impossible for teachers, social workers or even parents physically to restrain children from mischief without the child reporting them to the police”. But there was considerable support from elsewhere.
In 1986, Hale was made professor of law at Manchester University, after two decades in academia. Most judges come direct from the bar; is it true that there is a snobbery about academia? “Yes.” Even so, Hale says her background proved beneficial. “The advantage is that you have to think about the law in the round – the whole subject, not just the individual case. So it gives you a different perspective from the one you get just dealing with case, after case, after case.”
But now she is preparing to step down. After sitting for a month in Hong Kong’s court of final appeal, she will formally retire, and spend more time indulging her passions – walking, gardening, opera, family (her daughter Julia lives on the same street in London, and she has three stepchildren). Does she think she is leaving the law in a better state than when she qualified? “In certain respects, yes. I think what I’m happiest with is that people now take equality very seriously as a value in the law and in the way people are treated. Equality and non-discrimination. By equality, I mean treating people equally, I don’t mean equality of outcome – that is a very different thing.”
It is odd to be sitting here talking about increased equality while under orders to use her title. “Lady Brenda Hale,” I say, “I don’t find all this Lady stuff very easy.”
She laughs. I’m still waiting for the punch on the arm and the “Gotcha!”, but it doesn’t come.
“I know. I know. That’s why I’m laughing.” She seems to enjoy my discomfort.
I tell her my mother is called Marjorie, Hale’s middle name, and ask if she likes it. She says it was her mother’s name, too, and she’s happy enough with it. “It’s the Brenda I don’t really like.” Why not? “Ah well, what’s the book called? It was popular in the 1970s. A Handful Of Dust. This is all about a really decent aristocratic chap who marries a not-decent aristocratic woman called Brenda and she treats him very badly, is unfaithful to him, etc. But of course he does the decent thing and lets her divorce him because that’s what they did, and she then takes him to the cleaners. So he takes a trip up the Amazon where he is captured by some barmy Englishman who makes him stay there and read Dickens novels to him.” Again, there is this incredible recall of detail and ability to summarise on the spot. So she only started disliking her name then? “Well, I’m not sure I ever liked it. Not particularly happy with it, but not unhappy. Then I read that book, and she was called Brenda and she was an absolute bitch.” But despite her protestations, Brenda seems rather appropriate; it’s the Queen’s nickname, and there is something rather regal about Hale.
I’m staring at her octopus. What is it with the animal brooches? Simple, she says: they were a way of glamming up her drab work clothes. “It started off when I was in the family division wearing dark suits. My husband started giving me brooches to cheer them up a bit, to feminise them, and it just grew from there – a lot of frogs, a lot of creatures.”
In 1992, Hale married her second husband, Julian Farrand, former dean of the law faculty at Manchester university. Their wedding took place a few days after she and her first husband, Anthony Hoggett QC, Julia’s father, were divorced. She refers to Farrand affectionately as her “frog prince”. There are a number of Frog and Toad of Toad Hall figurines lined up on her desk, all tributes to Farrand. “It’s his driving style,” she says. “That’s where all the Toad stuff started.” Toad is known for his love of fast cars.
Who are her heroes? Hale reels off a list of lawyers: former senior law lord Lord Bingham; family division judge Margaret Booth; Lord Atkin, widely credited with creating the law of negligence. And outside the law? “One would be Archbishop Desmond Tutu. He kept a certain spirit alive, which was hugely influential in how things worked out in the immediate aftermath [of Nelson Mandela’s release from prison].”
What I also love about Tutu, I say, is that he knows his weakness – he’s got a massive ego. I ask her if she has a big ego. “I’m sure I’ve got an ego. I try to keep it in check.” Does she succeed? “Other people had better tell you the answer to that.”
A couple of years ago, journalist Afua Hirsch (author of Equal To Everything, the children’s book about Hale) wrote a profile for Prospect magazine in which an unnamed former colleague of Hale’s said she found her “a totally fascinating woman” but “difficult to work with”. The ex-colleague added: “You have to be obstreperous as a woman to get there, to break the glass ceiling – it’s painful, it leaves you with cuts.”
Does Hale recognise that description? “Yes, probably. I try very hard to be patient, but I’m sometimes a bit quick with people. I probably ask a lot of people. Certain people. But I also think certain people find women ‘obstreperous’ when they would not find the same behaviour from a man obstreperous. They’d just call them determined or authoritative. It wouldn’t be a criticism.”
Coull Trisic tells me we have 15 minutes left. I ask her whether she tells Hale when she’s being quick with her. “No,” she says. “I’d say, ‘We’ll do it that way and we’ll get it done.’ She’s my boss and I’ll go, ‘OK’.”
I seem to have touched a tender spot. Hale is thinking aloud. “What I’m struggling with is, I think I am less bossy and assertive than most of the men I see around me.” She is still doing battle with obstreperous. Firm is a fairer word, she decides.
Over the decades, Hale has witnessed so much progress for women in the legal system, both as practitioners and in terms of their access to justice. Does she worry that some of these gains are now being reversed? In September last year, Crown Prosecution Service figures showed that the number of rape convictions were the lowest they had been in a decade, despite an increase in the number of reported incidents – prosecutions were down by 33% on the year and convictions fell by 26%.
Will she leave her job feeling – Hale interrupts before I can finish the sentence. “Job done? No, no.” Why not? “I think the question of prosecuting sex offences generally is problematic for obvious reasons. How do you establish a case that is going to have a better than evens chance of getting a conviction? To what extent do you take into account the known facts about some of the prejudices that some juries have?”
There are other areas where she worries the law may not be doing enough to protect women. Digital technology, she says, has brought its own set of problems. “What might not have been an issue 20 years ago is now a serious issue: trolling on social media. It’s a problem for men, but it’s a particular problem for women. So there may be things the law needs to do to catch up.”
Over the past five years the legal aid budget has shrunk by more than £1bn, while the justice bill in general has been slashed by 40%. Today, legal aid is denied to most housing, welfare, family and immigration cases. Hale admits the financial cuts are her greatest concern. “The removal of legal aid from whole subject matters has been unfortunate to say the least. The justice system generally finds itself in a very needy state.”
I tell her I’m horrified that most people now have less access to justice. Will these cuts be reversed? “I’ve got to be really careful what I say about legal aid. I can’t adopt the language you’re using. I can’t. I think there has been a worrying period since 2012 [when funding cuts were introduced]. It is difficult to claw back what has been given up. I think massive efforts are going into trying to modernise the justice system. If they work, that will be a good thing, but whether they will is very much open to question.” She pauses. “It would be great if a lot more prominence were given to the problems of the justice system than currently is, including by journalists.”
I tell her I can’t believe we’re living in a country where we deport migrants who have broken the law rather than simply letting them serve their prison sentence. What has happened to the concept of rehabilitation? “Well, usually they deport them after they’ve served their sentence,” she says. Exactly: so it’s a double punishment. “I think I’d better not comment on that. I really better not comment on that,” Hale says, but her tone suggests she is hardly sympathetic to this practice. I think she is finally warming up.
“One hour, two minutes,” says Coull Trisic, looking at the time.
Well, at least I’ve got a lot off my chest, I say.
“You have, haven’t you?” Hale says. “You’ve got more off your chest than I have.” True. But I’ve got a sneaky feeling that, once she is no longer shackled by office, we will be hearing a lot more from Lady Hale.
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