Daily Mail, 13 November 2003

The first female member of the Law Lords, Dame Brenda Hale, held a press conference last week. There, she gave vent to a variety of fashionable but deeply controversial opinions.

She was in favour, she said, of gay adoption, legally recognised gay partnerships and improved legal rights for heterosexual cohabitants, and wanted to see the concept of fault removed from divorce law.

These issues, which are among the most divisive in our society, are all political topics. They are the subject of heated debate in Parliament and among the general public. What, pray, was one of our most senior judges therefore doing in making known her own opinions on these matters?

For judges are not supposed to enter the political fray. We should not know what their views are. If they do nail their colours to any particular mast, they will not be viewed as properly impartial when cases touching upon such issues come to court.

What, indeed, was Dame Brenda doing having a press conference at all? She is a judge, not a politician. The explanation given was that many journalists wanted to interview her as the first woman Law Lord. All the more reason, then, to be especially mindful of her delicate position, and of the need to uphold the distinction between policy-making and law-enforcement upon which our system has traditionally depended.

Dame Brenda, however, appears to regard her new position as a political platform. But then, this is hardly surprising. For despite the fact that she denied she was a hard-line feminist – ‘a soft-line feminist’ is the most she would admit to – the fact is that she is the most ideological, politically correct judge ever to have been appointed to the highest court in the jurisdiction.

As such, she will be bringing this destructive perspective to bear upon binding legal decisions over some of the most difficult and contentious issues around. But for the past two decades – first as a legal academic, then as a law commissioner and a judge in the Court of Appeal -- she has already been one of the most powerful backroom influences over the development of family law. The disturbing truth is that she has taken it consistently in an anti-family and anti-man direction.

Dame Brenda was the principal architect, for example, of the Children Act, which by giving children ‘rights’ has 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.

Dame Brenda was behind a bill in the nineties --which was eventually withdrawn – which would have given live-in girlfriends who had left the mutual home the right to win a court order to move back, or even have their boyfriends evicted from their own property.

And Dame Brenda was behind the ultimately doomed attempt to remove the concept of fault from the divorce law, which would have given the marriage contract less significance than buying a second-hand car. As she announced this week, she still wants to see no-fault divorce introduced. But what is really worrying is that as a judge, Dame Brenda is advocating a change in the law. This is quite wrong. If judges want to take sides, they should remove their wigs and stand for election to Parliament.

But then, Dame Brenda is used to influencing the development of policy. For nearly a decade, in the eighties and early nineties, she was the driving force behind the Law Commission, the law reform body which takes a consistently radical line and whose proposals frequently turn into legislation. This body has been consistently hostile to marriage over the years, pushing for easier divorce and for cohabitation rights.

As a result of its pressure, in 1987 the status of illegitimacy was abolished and the green light thus given to unmarried parenthood. In 1988, the commission said there was no more need to support marriage than ‘any other living arrangement’, and dismissed the high rate of divorce as no great cause for concern.

Despite the fact that Dame Brenda wants to give legal rights to cohabitants and gay partnerships, she has denied being hostile to marriage. She did not think, she said, that marriage served no useful purpose (indeed, how could she since she has married twice?). Nor did she want to equate the ‘special nature’ of marriage with cohabitation.

But this kind of intellectual salami-slicing is precisely how marriage is being destroyed. Marriage is unique because it alone creates kinship – not through a ‘partnership’, but through a physical union that is the basis of our human identity. In recognition of this, it affords certain benefits revolving around a solemn promise of lifetime fidelity. If those benefits are sprayed around a host of relationships that don’t meet all these criteria, marriage becomes meaningless.

Nevertheless, family lawyers have been busily undermining marriage for decades. Against the express wishes of Parliament, the courts unilaterally removed the issue of behaviour from divorce by refusing to apportion blame between spouses; they introduced ‘quickie’ divorces; they loaded the court process against fathers; and they began to give property rights to unmarried women living with men.

All of this progressively weakened marriage by making it more and more meaningless in law. To cap it all, the lawyers pulled a disingenuous trick. At every stage in this sorry process, they said the law needed to modernise to keep pace with these changes – ignoring the fact that it was they themselves who had precipitated such changes in the first place.

This is exactly what Dame Brenda was doing when in 1980 she made her now infamous remark about marriage. ‘Family law’, she wrote, ‘ no longer makes any attempt to buttress the stability of marriage…Logically, we have already reached a point at which…we should be considering whether the legal institution of marriage continues to serve any useful purpose.’

Far from merely regularising the new social landscape, she and other legal radicals were actively reshaping it around an anti-family agenda.

At the same time, the rise in judicial activism was propelling the judiciary into dangerous political waters. During the long years of Conservative government, the judges decided that they were the only real opposition and started to challenge ministerial decisions.

This judicial activism was given an enormous boost by Labour’s Human Rights Act, whose contradictory provisions force the judges into making political or ideological judgments. As a result, the once clear line between law-makers and law-enforcers has become dismayingly muddied.

Judges should not be trying to make the political weather, but deciding cases by interpreting laws passed by Parliament. But they are straying more and more into the political arena. They have allowed themselves to become compromised. And the most openly politicised of these judges is the feminist Lady Justice Hale.

As a result, we can all now guess which way her judgments are going to go. We know the ideological prism through which she views the world. Her arrival at the pinnacle of our judicial system illustrates how the amoral onslaught being waged against authority, social norms and personal responsibility has now penetrated even the establishment’s deepest and most conservative sanctum, the Law Lords.

Posted by melanie at November 13, 2003