Lady Brenda Hale

by | Jul 17, 2017 | Homepage, Interview, Legal profession and judiciary | 0 comments

How would you describe your personal beliefs/identity in relation to religion?  What made you adopt this, or stay within it if it as the tradition you were born into?

I am a not very observant member of the Church of England, but I do go to church from time to time. I was brought up in the tradition of the Church of England. I have remained in Anglicanism in adult life because I haven’t seen a reason to reject it.

Would you describe the UK (excluding Northern Ireland) as an equal and tolerant society, especially in relation to religion and belief?

As I have said in many of the things which I have written or spoken on the subject, we have the paradox in England that we have an established Church, but at the same time adherence to that established Church, as a religion, is not very strong. By and large, the English think of themselves as very open and tolerant people, and they certainly say that it is part of their values. Politicians would say it is part of their values. I am speaking about the English here, because I suspect there are cultural differences between the English, the Welsh and the Scots. Religious observance is greater in the three other parts of the United Kingdom, certainly in Northern Ireland and I think also in Scotland. So, I wouldn’t like to generalise what I think about English society to other countries. But it is a startling thing, isn’t it, that the First Amendment of the American Constitution ‘Congress shall make no law regarding the establishment of religion, etc, etc, etc …’ and yet in the USA there is a much greater adherence to organised religion than there is in this country, and religion comes up more prominently in debates in the USA than it has traditionally done in this country.

I think you will find that Scotland is a bit different from England, and you will know more about Wales than I do… because there has been traditionally a more recent division between the Roman Catholics and the Protestants, and the version of Protestantism that it is the Church of Scotland is a Calvinist version of Protestantism, which on the whole since the XVII century the Church of England isn’t… The Church of England is this weird religion which tries to have the best of both worlds, to be Protestant and not accept the Pope, and not accept transubstantiation unless you want to (but you can if you want) but it is an Episcopal Church and believes in the Apostolic succession and so on… So, it is a very strange religion, but there are comparable religions… Lutheranism is similar… whilst in Scotland it is more polarised.

The idea that Anglicanism asks anything of you is the weird thing. I recall having been brought up to believe that I had to take Holy Communion three times a year, and one of those times had to be on Easter Sunday. That’s about it. There isn’t a dress code, there are not any dietary laws, there is a moral code that you have to follow, but on the whole they are pretty forgiving about all of that. Certainly, doctrinally you have a huge diversity… as I was saying earlier, you may or may not believe in transubstantiation… you are allowed to believe in it, but you don’t have to believe in it. It is not a religion which asks a lot and so it is not very difficult to live in conformity.

Anglo-Catholics would accept transubstantiation and there is a huge variation in rituals as well, from the “bells and smells” Oxford Movement Anglo-Catholics down to the Pentecostalists… that is what I love about the Church of England.

I was listening to the service that was broadcast on Sunday morning from Liverpool Cathedral, the Roman Catholic cathedral and the service is almost identical. What goes with it and what you believe in, is maybe different, but the actual service has become more similar in the last few years than it was. When I was young we still used the Book of Common Prayer and some of the services I go to still use it.

What has been the impact of the HRA on the legal framework, especially in relation to religion and belief?

The HRA has made a huge difference to the work of the courts, because there are issues which we can now analyse in a different way from how we could have analysed them in the past. Religion is a good example of that, because the non-discrimination cases in Employment Tribunals were not analysed in terms of Article 9 as well as in terms of the non-discrimination laws. As a result Christians felt that they were discriminated against because they weren’t successful in court: rules that forbade them to wear crosses and other symbols of Christianity were upheld, whereas bans on Islamic headscarves and Sikh turbans and bangles were held to require justification. It was a very good thing when the HRA came along and particularly when those cases went to Strasbourg and Strasbourg said ‘yes, you have a right to manifest your religion, wearing a cross is a manifestation of your Christian religion, therefore, it can’t be prohibited without a good reason and so courts and tribunals had to look whether there was a good enough reason to prohibit it. The fact that it is not a core requirement of the religion did not matter.  It has improved the law, I think. So, yes, religion is a good example of improvement.

When is it appropriate/necessary for the State to intervene in citizens manifesting their religious beliefs? For example to protect the vulnerable, including children?

The question concerning potential conflicts between parents and children in terms of religion is a very interesting one. This answer is very much off the top of my head to what is a very difficult question.  There isn’t a lot of law in this country. It has been confronted in the United States, with cases like Wisconsin v Yoder,  where the Amish community said that they didn’t want their children to be educated beyond the age of 14, I think it was, as they would be contaminated with modern life if they went any further. That is the perpetual tension between the child’s rights to be exposed to the same level of education as any other child in the country versus the parental view that this is damaging from a religious point of view. There could be lots of examples like that in this country at the moment.  Gender also comes into this very much. So, education, gender, gender roles, gender expectations.

Another example is medical treatment. A few years ago someone in my position would have said ‘Jehovah’s Witnesses and medical treatment’ first. The conflict between the right of the child to live, let alone the right to live a healthy life and the parents’ religious belief that accepting blood products into the body is sinful.  We have never had any trouble in saying that the right of the child to a healthy life comes first, as against the parents and generally also against the child. That is a much bigger issue, when the child gets to the age of ‘Gillick competence’. Do we accept the child’s religious views against medical treatment, or do we say ‘no, until you are legally an adult, we have a public interest in your survival. You can do what you like with yourself once you are legally an adult, but for now we are interested in your survival.’ That’s what all the cases until recently were about. So, I find it significant that the first thing I thought of when you asked the question was different. I suspect that it is a product of multiculturalism and human rights awareness. 

Some commentators have suggested that Article 9 is given less weight than other Articles of the ECHR, would you agree with this assessment?

I haven’t seen any evidence to suggest that less weight is given to Article 9 in judicial decisions. I would need to read what the specific commentators have said, but I haven’t actually seen that- quite the reverse indeed. We have two cases in the House of Lords:  the beating children case and the jilbab case, where we found that the bans were justifiable, but then finding justifications for qualified rights is what we do all the time. Those are another example of childrens’ rights against parents’ rights – I should have said that before!

Do you believe that individuals have a duty to vote?

Parliament could say that voting should be compulsory and I would not regard that as an unjustifiable thing for Parliament to say. Unless and until Parliament so says, it is an individual judgment, whether or not you feel morally obliged to vote. I myself think that one should feel morally obliged to vote. Part of it is that you can’t complain if you are not prepared to do the one thing you can do to try to influence matters. The other thing is, as a woman, and I know young girls, school girls, some of whom feel the same, that people died for the right to vote and so it is important. I presently don’t have the right to vote (in Parliamentary elections) but that’s a different story. I was quite interested. I was talking to a group of school girls around 16 years old, and it was before the election. They had been asking questions and so I thought I’d better ask them a question: ‘Are you interested in the elections?’ and then they said they were, I asked ‘Do you have a vote?’ No, they didn’t have a vote because they were under 18 and I asked ‘if you had a vote, would you exercise it?’; they said they would, and I asked them ‘why?’, and they came up with ‘people died for the right to vote and so it is a moral duty’. So, I tend to think it is. However, I understand that if we have a first past the post constituency based electoral system it is a rational point of view to say ‘My vote won’t make a difference at all and so why bother?’. That is rational. People may think ‘well, what’s the point of voting Labour? There is not even a remote change for them winning’ and a few years ago there was no point in voting SNP, but times change. So, maybe that option is rational, but it is not very sensible. What isn’t acceptable is for people to say ‘All politicians are the same’ or ‘I can’t be bothered to be interested in issues’. That’s not right. In a democracy you have a duty to try to take part. 

Do you think that it is appropriate to for Church of England bishops to have a right to sit in the House of Lords?

About the bishops, for as long as you have non-elected members of the House of Lords, it is a good idea to have people from a wide variety of walks of life and that should include, one would hope, people who have a perspective that it is not only economically based, but have an ethical, moral or spiritual dimension. But that doesn’t of course make the case for 26 bishops from one Church and only one person from each of the other Churches, which is currently what they have. That would make the case for a more balanced Chamber, reflective of the diversity of our society, rather than Church of England bishops. However, because the Church of England is such a broad Church, you can be sure that there are very few issues on which all 26 bishops think the same way. So like all English things, or British things, sometimes it works in a way you wouldn’t expect it to.

I think it is pretty difficult to defend establishment of the Church of England in the twenty first century. My husband is a member of the National Secular Society, having been brought up as an Atheist.His father was also a communist. I don’t think his father practised communism or brought up his son to be a communist, but he certainly brought him up to be an Atheist, and so my husband is a member of the NSS. I go along to at least one event a year with him and I am perfectly happy to do so, because I think I would describe myself as a Christian secularist. It is entirely possible. You don’t have to be an Atheist to believe in a secular State.

Rationally, disestablishment is the right solution for England.

How should people exercising power be held to account?

There are lots of mechanisms to hold to account people with power. There is not just a single one. Clearly, the courts are part of it. Judicial review of administrative action is designed to ensure that those with executive powers are held accountable. Shareholders? That is another mechanism of accountability. All of them have various degrees of success, but they are all there. Public opinion? It is a huge mechanism of accountability, but the problem with public opinion is ‘what is it?’ Is it what the newspapers say or is it something else? Is it what is trending on twitter for example? These days we think that the mechanisms to find out public opinion are firstly the media and secondly public opinion polls. I don’t think that is right or sufficient in these days. So, public opinion is supposed to be a mechanism of accountability, but it is quite tricky. Alternative dispute procedures or regulators? My daughter works for the Financial Conduct Authority. There are lots of mechanisms of accountability.

What responsibilities do the judiciary have in relation to society and the exercise of power?

It is a vague question [my duties as a judge to society]. I can answer in a specific way, which is that you may have seen it as you came to this building: the judicial oath is first thing you see and we have all sworn it. We have a duty to decide the case, but we must decide it according to the law, we have to decide it in an unbiased way and follow a fair procedure. That is quite a big responsibility. I started by saying that it is not only the oath, you also have a responsibility to decide. When people ask me ‘isn’t it very different being a judge from being an academic?’, I always say ‘no, it is not that different, because as an academic you also have to find out what the evidence is, what the cases say, what the statutes say, and trying work out an answer; but the big differences with judging is that you have to make up your mind upon one answer, which is going to make a difference to the people in front of you, whilst as an academic you could come up with quite a wishy washy conclusion and it is not going to make a big difference to people’s lives other than yours (apart from marking exams, that’s different). So, judges have a responsibility to decide. There are certain judges who try to avoid making decisions but that’s not adherence to your responsibility. Any other responsibility I feel is a matter of personal choice – helping charities, supporting good causes, sharing your experience and knowledge with other people. I think that is part of our role here. That is why I agree to interviews like this, I agree to meet groups of schoolgirls and so on. I think it is important and we learn from it too. It is learning from other people. I think that is a moral responsibility too.

There is evidence from a range of social science sources [about the knowledge of citizens about the legal and political system] but my impression, and it can only be that (I am sitting in an Ivory tower here) is that the understanding of the political system, the governmental system, the Constitution of the United Kingdom, is nothing like as great as it should be. There should be more attention paid to it in schools. It was striking. I have just been in Washington, last week, and we went round the National Archives of Washington, where they have the Declaration of Independence, the Constitution and the Bill of Rights (they also have a copy of Magna Carta) and it was full of school parties. I also went to the British Library Exhibition on Magna Carta, which is a magnificent exhibition, and there wasn’t a school party when I was there. There were lots of people, but there wasn’t one single school party.  We are now getting school parties here and we have school parties that go to Parliament, but I don’t get the impression that most school pupils learn about the XVII century. They do know about the Tudors, and they do know about the Second World War, but the Tudors are nothing like as important as what went on in the XVII century. The XVII century is exciting! Yes, Henry VIII and the Reformation, that is quite important, it is nice to know, but what went on throughout the XVII century is what has made this country what it is, religiously, as well as politically, and I find it staggering that it seems not to be taught. When I ask grandchildren if they have studied this or that, they very rarely have. 

Do you think that those exercising power in Parliament reflect the composition of society as a whole?

It depends on whom we regard as leaders. We are very far from being reflective on all dimensions of diversity. Gender is getting better. Ethnicity is not getting much better. It varies in different sectors. I think ethnicity is probably better in the civil service than anywhere else, because the civil service has been an equal opportunities employer for much longer than other sectors of our society.  But there is also social and educational background, which is an important dimension, not well reflected in the judiciary, certainly not in the senior judiciary. Politicians? The variety of backgrounds amongst politicians seems to diminish, rather than increase. I have read an amount of the Commission on Social Mobility stuff -that’s where you find the answer to this question, not me rambling on!!!! In terms of gender, the situation hasn’t improved in some respects, but there are lots of efforts being made to improve matters, and the one encouraging thing is that people think it matters. Twenty years ago people didn’t think that it mattered, or if they thought it mattered, they didn’t think it mattered much.  They thought the situation would sort itself out, especially with regard to women. Once all of these young women who had been educated came through the system, all would be well.  Now they don’t simply think it matters, they think it matters quite a lot, and they think it’s important to try to do something about it.  And I am delighted that the Church of England has as long last seen the light! 

In your own experience of dealing with public authorities, have any needs relating to your faith been dealt with appropriately?

There is only one situation in which I can recall my faith was relevant. That was when my daughter was born prematurely, unexpectedly, and almost the first thing they asked after asking me what her name would be, was ‘would you like her baptised?’ and I think that is a standard question, they do it all the time. Whether they do it appropriately for non Christians, I don’t know. I may have been asked my religion before having been admitted to hospital, and I would have said ‘Church of England’. That is the only example which I can think where my faith was relevant and it was handled in my view entirely appropriately.

Do you think that the Rule of Law is applied equally to all members of society, or are there some groups who receive comparatively better or worse treatment in practice?

My present role is one in which I have a combination of duties: doing justice in the particular case which is brought before me; to speak out in favour of the rule of law, and to some extent, therefore, in relation to some particular threats to the rule of law. I do perceive it my duty to do what I can on that, but on the other hand of course, as a judge, one has to be very careful about not entering into party political debates.

You can look at all the research that has been done about the criminal justice system and how some groups are over-represented in it, in comparison with their representation of the general population, but of course the question is ‘is that unfair? Perhaps they do things that merit either to be prosecuted more often or being sentenced more heavily?  Most research tends to suggest ‘it is not’ it is a partial explanation, but it is not wholly adequate.  When it comes to access to justice, we used to have a system which was based on the premise that those who couldn’t afford legal representation, if they had to be in court, criminal or civil, could have access to legal aid, that would pay the lawyers something reasonable  – not as much as the lawyers might get from the private market, but reasonable anyway. That system has been gradually sliced back, both in terms of who is eligible, what they are eligible to get legal aid for and what the lawyers are paid… all three dimensions have been sliced back over the last couple of decades, but dramatically in the last two years, and there have been various semi-compensatory measures put in place, but these alternative structures have their own problems.  But I would be the first to say that legal aid also had its own problems. I do not equate access to justice with access to lawyers.  The two are slightly different. 

Are there any legal rules which you find uncomfortable or inconvenient?  (i.e. laws which you obey because you are law-abiding, but which you find restrictive and would rather were not in place)?

I do not object to speeding laws. I think they are very important. I try to observe them. It is hard to think of a restriction on how I would otherwise wish to behave. What an interesting question! If I think of one, I will let you know. It can’t be very important, because if it were, I would be saying so. There are quite a lot of rules which I would like there to be, which is quite different!

I think I have committed myself to paper on what my general view is, which is support for religious freedom and freedom of belief and non-discrimination on the grounds of religion and belief, provided that it is operated in an uniform way and provided that it isn’t operated so as to claim exemptions from generally applicable rules which are there to avoid harm to other people. Getting that distinction across is sometimes quite tricky. I worry about Sikhs being allowed to wear turbans rather than helmets, and I think that was allowed before people thought very carefully about it, but it is at least a risk of damage to themselves, rather than to everybody else (although they would need general resources if they were injured). So, it is a bit like the smoking ban. But …. whether Christians operating businesses in which they purport to offer services to the whole population should be allowed to say that they won’t provide a service to ‘you’ because you are gay, is a different question. I think that generally speaking they should not be allowed to do that. I think the law is correct in saying so because, although they may not realise it, it is actually deeply harmful to deny people services on the grounds of their sexual orientation.

Lady Hale was appointed Deputy President of The Supreme Court in June 2013, and in 2017 became the first ever female President.

In January 2004, Lady Hale became the United Kingdom’s first woman Lord of Appeal in Ordinary after a varied career as an academic lawyer, law reformer, and judge. In October 2009 she became the first woman Justice of The Supreme Court.

After graduating from Cambridge in 1966, she taught law at Manchester University from 1966 to 1984, also qualifying as a barrister and practising for a while at the Manchester Bar. She specialised in Family and Social Welfare law, was founding editor of the Journal of Social Welfare and Family Law, and authored a pioneering case book on ‘The Family, Law and Society’.

In 1984 she was the first woman to be appointed to the Law Commission, a statutory body which promotes the reform of the law. Important legislation resulting from the work of her team at the Commission includes the Children Act 1989, the Family Law Act 1996, and the Mental Capacity Act 2005. She also began sitting as an assistant recorder.

In 1994 she became a High Court judge, the first to have made her career as an academic and public servant rather than a practising barrister. In 1999 she was the second woman to be promoted to the Court of Appeal, before becoming the first woman Law Lord.

She retains her links with the academic world as Chancellor of the University of Bristol, Visitor of Girton College, Cambridge, and Visiting Professor of Kings College London.  A home maker as well as a judge, she thoroughly enjoyed helping the artists and architects create a new home for The Supreme Court.


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