Difference in the House of Lords

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 alternatives 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.

Detailing Judicial Difference

“…Compare, for example, Baroness Hale's deliberate articulation in K v Secretary of State for the Home Department; Fornah v Secretary of State for the Home Department of the ''gender-related and gender specific persecution'' 19 involved in the practice of female genital cutting, with Lord Rodger's strategic grammatical isolation of the ''gender-specific'' nature of the harm securely within double-quotes, 20 less it taint his subsequent remarks; or the similarities between Baroness Hale's opinion and Lord Bingham's in the same case (Rackley 2008, p. 48). Alternatively, consider again the strategic effects of Baroness Hale's dissent to the majority of the House of Lords' prioritisation of procedural fairness over substantive justice in R v J; 21 her evocative narrative in Parkinson v St James and Seacroft University Hospital NHS Trust; 22 or her self-description as ''a reasonable but comparatively weak and fearful grandmother'' in a criminal appeal relating to duress (Rackley 2006). 23 That said, while the criticisms of the case-by-case approach do not render it redundant, they do reveal its methodological limitations, not least the fact that any difference found is able to be sidelined or explained away as unrepresentative, selective or coincidental.…”

“…See, e.g.,Hale (2005),Rackley (2006Rackley ( , 2008,Elvin (2007) andLister (2007), presented as part of a special stream on Baroness Hale's jurisprudence at the Society of Legal Scholars' Annual Conference at Durham University in September 2007; andCobb (2008).…”

Comparación de mujeres y hombres de experiencias en la judicatura australiana*

“…Sin embargo, los números absolutos suelen ser muy pequeños. Este modelo es típico de los países del comon law (Hurwitz y Lanier, 2008: 63;Kenney, 2004Kenney, , 2013Laster y Douglas, 1995; National Association of Woman Judges, 2013; Office of the Commisioner for Federal Judicial Affairs Canada, 2013; Rackley, 2006Rackley, , 2007Rackley, , 2013Malleson, 2003b;Murray, 2003;Thornton, 2007). Como Clare McGlynn ha explicado, un incremento del 1,4% a 6% en la Corte Suprema Inglesa significaría el nombramiento de siete mujeres en un lapso de 10 años (McGlynn, 2003).…”

“…Sin embargo, aunque las cantidades de mujeres estén en aumento, ellas aún constituyen sólo una pequeña proporción de la judicatura (Bustamante, 1991b;Gastron, 1991;Junqueira, 2003;Kenney, 2004Kenney, , 2013Kohen, 2008Kohen, , 2013Laster y Douglas, 1995;Rackley, 2006Rackley, , 2007Rackley, , 2013.…”

A Conversation with Baroness Hale

“…More recently, Erika Rackley in her article Difference in the House of Lords (Rackley 2006), and in the paper she gave yesterday (Rackley 2007), has sought to demonstrate the difference you have made in, as she puts it, "render [ing] contingent particular but dominant forms of reasoning", and "point[ing] the way towards new and/or previously overlooked approaches to judging and understandings of the judge" (Rackley 2006, 182). In light of that, I'm wondering whether you're now prepared to embrace the argument that women judges can 'make a difference', and also whether you still find it burdensome to be perceived in that way?…”