On the morning of Tuesday 24 September 2019, as seven of the judges of the Supreme Court of the United Kingdom assembled to give public judgment on whether the prorogation of Parliament by the Prime Minister was lawful, I was travelling across central London on the Tube. As Lady Hale, the President of the court, read out the judgment summary in R (on the application of Miller) v. The Prime Minister, Cherry v Advocate General for Scotland, and it was broadcast and streamed live to countless screens, friends’ text updates arrived with each Tube stop on my journey.
King’s Cross Unanimous! Justiciable!
Victoria Parliament has not been prorogued. As if it never happened.
Returning later towards Temple on the Circle Line, the train tunnelling under Westminster like an innocuous latter-day Guy Fawkes, other passengers seemed quite oblivious to the legal and political fireworks above ground. And in all the rapid flood of commentary on the contents and constitutional consequences of the judgment, I missed the growing chatter about the figure of Lady Hale herself, wearing a large diamond brooch in the shape of a spider as she delivered the Court’s unanimous decision.
Since then, the spider brooch has taken on a life of its own, as a sought-after fashion icon, and its symbolism the subject of speculation and caricature, with numerous Twitter accounts in its name, and articles written about it. Its image now appears, glittering, together with the words “girly swot”, on a T shirt sold to raise funds for charity. And on 27 September Lady Hale and her fellow female Supreme Court Justice Lady Arden were invited at a gathering of Cambridge women to become inaugural presidents of “the girly swot club”.
As is well-known, Lady Hale was the first woman to be appointed to sit as a judge in the UK’s highest court, formerly a committee of the House of Lords, but since 2009 reconstituted as the Supreme Court, housed in its own building facing the Houses of Parliament across Parliament Square. Her achievements as the first female President of the UK Supreme Court, as a jurist, and as a woman in the law whose previous life and legal career was not, in her words, one of “quadrangle to quadrangle to quadrangle” (traditional public school to Oxford or Cambridge college to the Inns of Court), are rightly celebrated.
She has both spoken and acted as a role model for other women practising law and in the judiciary, or studying law, or aspiring to do so, and been approachable and generous with her time and encouragement to them. On her appointment to the House of Lords she adopted the Latin motto “Omnia Feminae Aequissimae” (women are equal to everything). But even before the public interest aroused by the events of the last few weeks, there was an element of personality cult that I find distasteful in some of the commentary on her career, describing her as “the Beyoncé of the legal profession” or, in the language of every trite listicle published on the internet, “Six Reasons Lady Hale is a Total Rockstar”. Her distinctive brooches in the shape of butterflies, caterpillars, frogs, dragonflies and other creatures, were also noticed and commented on. Her fellow Supreme Court judge Lady Arden is reported to have told the meeting of Cambridge Women in Law a few days after the prorogation judgment that brooches “are a symbol we don’t have to conform” and “can be ourselves”, and Lady Hale is reported to have said of them on the same occasion that she hopes they stay a part of Supreme Court life, worn by her successors after her retirement in January 2020.
Although easier said than done, I think there is a significant line to be drawn between proper recognition of Lady Hale’s distinguished achievements and appreciation of her distinctive personal style, and the “unseemly fangirling” and hyperbolic worship of a heroine, that some of the response to the judgment in the prorogation case has shown.
There’s a certain irony in the appropriation by the Cambridge women in law of the description “girly swot”, a phrase first redacted, then revealed, in the course of the prorogation case itself, as a derisive description of former Prime Minister David Cameron by current Prime Minister Boris Johnson in a handwritten note of 16 August 2019. No-one with an ear for language or an interest in British politics could be unaware of the persistence of public school slang in Boris Johnson’s speech. “Girly swot” belongs firmly to that vocabulary. It comes from the world of Nigel Molesworth, the fictional narrator of an authentically misspelled satire of mid-20th century boys’ boarding school life at “St Custard’s”. Even for someone who grew up with them, there are jarring anachronisms in the Molesworth books — headmasters who daily wield the cane for corporal punishment of young children, boys addressed by their surname and their little brothers as Molesworth 2, schoolmasters who would talk about what they did in the Second World War, and all the material discomforts of boarding school, from the waterlogged football pitch to the revolting prunes. Ronald Searle, who illustrated the books, had been a prisoner of war in Japan and a courtroom artist at the Nuremberg trials, and knew what cruelty was.
Molesworth is an anti-hero for the new Elizabethan age of the early 1950s, trapped in a grim world of Victorian buildings and endless Latin lessons, but aware of modern poetry and philosophy, and looking forward to the moon landings. Both swots and girls (spelt ‘gurls’) are distinct species in his taxonomy of pupils, parents and schoolmasters.
Amongst the “many types of gurls” are -
“gurls who are beter at lessons than you. ‘Oh, nigel, don’t you really know the ablative singular of armiger?’ I don’t suppose you even kno what it means.’)
From book 4 of the Compleet Molesworth, Back in the Jug Agane, chapter 5
These are the “girly swots”, the women formerly known, originally in the 18th century, as “blue-stockings” — an archaism revived by journalist Quentin Letts, writing in the Sun newspaper last week that “Lady Hale has long been seen as a quintessential liberal blue-stocking.” “Blue-stocking” or “former barmaid” (a reference to a part-time job of the type taken by many students)? The tabloid newspapers veer wildly between their variant caricatures for a woman of intellectual achievement.
But behind the derision of one old Etonian for another in Boris Johnson’s “girly swots” is a recognition of the truth that women of the mid-late 20th century had to strive harder for academic education comparable to that available for boys, and for admission to Oxford and Cambridge, than the men with whom they competed for their places. Their numbers and their status as full members of these universities had been limited until well into the 20th century, and it was only in the 1970s that the majority of colleges at both universities, formerly male only, started to admit women, following protracted debate. One factor in that debate was that on average, women’s degree results were higher than men’s, and the women’s colleges feared that they would lose their best students to the men’s colleges. Less ancient universities did not have to contend with such stark monasticism, but all those founded before the mid-20th century would have had determined women facing obstacles to taking their degrees. In a recent BBC Radio 5 interview, Lady Hale, who studied law at Girton College, Cambridge and graduated with a First class degree and at the top of her year, said “At school I excelled at everything except art, gym and domestic science”, and at the gathering of Cambridge women in law a few days after the prorogation judgment she is reported to have said:
“When I came to Cambridge, I knew it was a privilege. I bet every woman in this room knew it was a privilege to be here. But I was surrounded by men who thought they were entitled to be here. And that is one of the things we still have to go on fighting against. The male sense of entitlement.”
This is the authentic voice of the academically studious girl of the 1950s and 1960s. It would be no less true to describe other high-achieving women, such as Prime Ministers Margaret Thatcher and Theresa May as “girly swots”, who studied at Oxford when far fewer women did so. Theresa May’s much derided confession that the naughtiest thing that she had ever done as a child was to run through fields of wheat was also the authentic voice of the “girly swot”. It is echoed in the novelist Ian McEwan’s characterisation of Fiona Maye, a female High Court judge born in the early 1950s in The Children Act. Fiona consciously reflects on the dedication to her studies and to her work that has marked her life since childhood, recognising herself as:
“A woman in her sixtieth year who had risked nothing in life beyond a few reckless episodes in Newcastle a long time ago.”
and who compares her experience of the ceremony of swearing-in as a judge to entering a convent — “she belonged to the law as some women who had once been brides of Christ.”
Although what began life as a private insult has been deftly turned into public flattery, is there really any exceptional heroism in being a “girly swot”? Law is an intellectual subject in its study, and, to varying degrees of extent and depth from day to day, in its professional practice. All women lawyers are or have at some time been “girly swots”, and however deep a sense of male entitlement runs, fewer of us in younger generations face the same obstacles to even embarking on an academic education and intellectually demanding career that our mothers and generations of women before them did.
A “Spider-brooch” heroine
The fantasy of Lady Hale as a super-heroine and the growth of the cult of the “girly swot” that has expanded, particularly on social media, since last week’s judgment, has some undesirable consequences. It may well add to calls already being made to end the current system under which judges’ personal views and lives are not scrutinised prior to their appointment.
Firstly, the cult has given rise to an assumption of familiarity with a figure of high authority. A BBC presenter tweeted that she was “… imagining Lady Hale slumped happily in the fleabag pose. Fag, martini and ball dress”, and inevitably this idea was quickly realised as an image by someone, and published on a BBC website page. No doubt intended as sincere flattery, and amusing on one level, this has an over-familiarity that inevitably goes with a sense of disrespect, even if not for the individual, for the figure of a senior judge and the court of which the judge is a member. I can find no comparable images circulating for any of the other members of the Supreme Court. Few, if any, people would welcome the return of the judge as a glacial elderly man, absurdly ignorant of popular culture and everyday life, as one of the symbolic figures of England — a marginally modernised version of George Orwell’s 1941 “hanging judge — that evil old man in scarlet robe and horsehair wig, whom nothing short of dynamite will ever teach what century he is living in”. Indeed, it is exasperating when commentators do readily resort to belief in such a figure, but surely there needs to be a certain sense of distance and respect for judges greater than that for a transient popular celebrity?
Secondly, the promotion of a collective vision of Lady Hale, and two of the litigants in the prorogation case, Joanna Cherry QC MP, and Gina Miller, as a “trio of extraordinary women” in the words of another broadcast journalist (and similar expressions by many others), makes a connection between them which is misleading, because it suggests that they are all on the same side, or in some way comrades in arms. This would always be a misleading impression to give of any litigants and any judge, as their roles are so fundamentally distinct, and a judge is always bound to be impartial as between individual litigants and to treat all equally, “without fear or favour, affection or ill will”, in the words of the judicial oath sworn on taking office. It’s an even more misleading impression to give in a case where the litigants are politically active, one even an MP herself, and are supporters of a cause which is deeply divisive at a profoundly uncertain moment in national life — because it gives the entirely wrong impression that the judge is an activist or partisan in the same cause.
An example — one newly-created image (below) depicts Lady Hale as Spider-Brooch, in faithful homage to the original Marvel comics’ artwork for Spiderman, but with Boris Johnson trapped under her arm as she tells him that no-one is above the law, and flies high over Westminster; below her, a disapproving Queen, a group including a jubilant Gina Miller and Joanna Cherry, waving a Saltire, and a disconsolate Dominic Cummings. But judges are impartial, and should be no more regarded as popular heroes and heroines than as enemies, as in the notorious headlines published after the Court of Appeal’s judgment in previous litigation brought by Gina Miller in 2016 in relation to Parliamentary process and Brexit.
Thirdly, a virtual tsunami of drivel has been written about Lady Hale’s role in the judgment in the prorogation case, in the name of feminism, or from a female perspective. Lady Hale is an avowed feminist, as her chosen Latin motto suggests, and she has spoken and written about the particular contribution of women to judgments at the highest level of the courts.
“Feminism is believing in equality, equality for women and the validity of women’s experience. That’s how I define feminism.”
But to describe her, as one journalist did, as “the latest judge to prove that men need to stop playing by their own rules” or as “working hard to put men in their place” is a travesty of feminism, and mistakes symbolism for substance. The judgment of the Supreme Court was unanimous, and the court’s President’s view does not carry any more weight than those of the other Justices, eight of whom were men, and two of whom were also women. As a matter of reasoning and principle, the judgment would have been the same if a female prime minister had advised the Queen to prorogue Parliament in precisely the same way at the same time. And the judgment was an appeal from a decision of three other judges in England, one of whom was Dame Victoria Sharp, first female President of the Queen’s Bench Division, and no less entitled to be regarded as a role model for women. That she and the two other judges of the Divisional Court had decided the case against the claimants and for the Prime Minister does not detract from her own achievements as a female lawyer and judge.
As for flights of fantasy such as that of the New York Times — what respect for a woman, and for a modern judge, can there be in overlaying the appearance of intellect and reason with intimations of witchcraft?
“After all, on a bespectacled gray-haired woman in black, the large spider conjured thoughts of hocus-pocus, of caldrons and curses. It suggested female power — call it “Big Witch Energy.” And who’s more scared of who?”
Ironically, one thing that the original “girly swots” would undoubtedly have been forbidden to wear at any of the schools where they applied themselves to their studies in the mid-20th century was conspicuous jewellery — spider brooches, bees in the bonnet, or anything other than a small cross. Lady Justice, in the form of women now visible at the highest level of the law, should not have to return to the world of those rules to escape from the sticky web of a personality cult.
 In live tweets from the occasion posted by Caoilfhionn Gallagher QC @caoilfhionnanna
 A phrase used in Stephen Daisley’s article Is the UK heading towards a US-style Supreme Court, Spectator Coffee House blog 26 September 2019