What a difference difference makes: gendered harms and judicial diversity

Abstract

Taking the UK Ministry of Justice's ongoing quest to ensure a more diverse judiciary as its starting point and backdrop, this paper establishes the House of Lords' decision in Secretary of State for the Home Department v. K (FC); Fornah (FC) v. Secretary of State for the Home Department [2006] as a lens through which to explore the ‘difference’ of the woman judge and, in particular, the developing jurisprudence of Baroness Hale—the first (and only) female law lord in the UK. It argues that Baroness Hale's candid recognition and articulation of the gendered nature of the experiences and violence in Fornah's story reveals not only the difference difference (in whatever form) might make to understandings of the judge, judging and justice but also the importance of recognising the transformative potential of judicial diversity to create a space in which difference is celebrated and valued on its own terms, a place where difference can truly make a difference.

Notes

Hereinafter Fornah [2006]. This paper concentrates exclusively on the facts and decision in relation to Zainab Fornah. Fornah was joined, on appeal to the House of Lords, with the case of K involving an Iranian national who had fled Iran following the arrest of her husband and having been raped and insulted by the Revolutionary Guards there. Her asylum claim—grounded in a fear of persecution as a member of a particular social group (her husband's family)—as well as issues of causation was successful, on appeal, to the House of Lords. For a discussion of the facts and decision in relation to K's appeal and Baroness Hale's criticism of the process of dividing families into “primary” and “secondary” members as “inherently sexist” see further, Chaudhry (2007).

The extent to which women judges speak in a ‘different voice’—although perhaps intuitively attractive—remains hotly disputed among both legal academics and professionals: see, e.g. Freenan (2007), Malleson (2003), Kay and Sparrow (2001), Sisk et al. (1998), Davis (1992–93), Martin (1993) and Belleau and Johnson (2005).

See generally, Schultz and Shaw (2003), Moran (2006), Freenan (2007), Nicolson (2005), Darbyshire (2007) and Thomas (2005) in the UK; Thornton (1996) in Australia; Kay and Brockman (2000) in Canada; and Kruse (2001) in the US.

Figures taken from the Judiciary of England and Wales website as at 1 April 2008, available at: http://www.judiciary.gov.uk/keyfacts/statistics/diversity_stats_annual/2007.htm (accessed 10 July 2008).

Ibid. See further, Abbas (2005). There are no government figures available in relation to other indicators of diversity, for example, age, sexuality, educational background, disability or religion, however see further Sutton Trust Briefing Note (2005) on the educational background of the senior judiciary, DCA (2005a) on disability, and Moran (2006) on sexuality.

On 9 May 2007 the responsibilities of the Department for Constitutional Affairs (DCA) transferred to the new Ministry of Justice and Jack Straw was appointed Lord Chancellor and Secretary of State for Justice. In a speech at the Lord Mayor's annual judges dinner in July 2007 he confirmed the new department's continuing commitment to securing a more diverse judiciary (Straw, 2007). See in particular DCA (2003, 2004a, 2004b, 2004a, 2005b) and further http://www.dca.gov.uk/judges/diversity.htm (accessed 10 July 2008).

Section 64 of the Constitutional Reform Act 2005 establishes that the JAC “must have regard to the need to encourage diversity in the range of persons available for selection for appointments” (although cf. Dyer, 2008). On the Judicial Appointments Commission see further http://www.judicialappointments.gov.uk/ (accessed 10 July 2008).

In this paper I use the term ‘Female Genital Mutilation’ (FGM) in line with the House of Lords, however I recognise (with Baroness Hale) that increasingly the practice is being referred to internationally as ‘Female Genital Cutting’ (Fornah [2006] 90). On the issues raised by FGM more generally see further Nussbaum (1999, pp. 118–29), FORWARD (2002), The Female Genital Cutting Education and Networking Project, available at: http://www.fgmnetwork.org/index.php (accessed 26 September 2007); the Debate on ‘Female Genital Mutilation’ in the House of Lords on 8 December 2005 (HL Hansard, vol. 676, col. 844–68); Atoki (1995) and Bibbings (1995).

Estimates put incidences of FGM in Sierra Leone at between 80 and 90%. It is practised (for social/cultural, as opposed to religious, purposes) by all ethnic groups except Krios who are located primarily in the western region and in Freetown (US Department of State, 2001).

The World Health Organisation estimates that between 100 million and 140 million girls and women have undergone some form of FGM and that about three million more do so each year (WHO, 2006, p. 2).

Some estimates suggest that there are 3,000–4,000 new cases in the UK per year (www.ipu.org). Under the Female Genital Mutilation Act 2003 (which replaced the Prohibition of Female Circumcision Act 1985) it is an offence to “excise, infibulate or otherwise mutilate the whole or any part of a girl's labia majora, labia minora or clitoris” (s1(1)) [unless it is a surgical operation necessary for the ‘girl's’ (which includes ‘woman’) (s6(1)) physical or mental health, or related to labour or child birth (s1(2))] and also to aid, abet, counsel or procure a person to do the relevant act outside the UK (s3). As of 2005, there have been no prosecutions under this Act (Lord Bassam, HL Hansard, vol. 676, col. 866–8, 8 December 2005).

No law prohibits FGM in Sierra Leone and efforts by NGOs to eradicate it are actively resisted by the women's secret societies (Bowers, 2007; IRIN, 2005). Following the House of Lords' decision in Fornah, Zainab Fornah was criticised by Septimus Kaikai, Sierra Leone's information minister, in a interview for the BBC for what he described as a “deliberate and conscious and premeditated attempt by individuals to malign and besmear the reputation, integrity and character of a government and its people” (BBC News, 2006).

Although the practical importance of Fornah's case was mitigated slightly by the Secretary of State's recognition that article 3 of the ECHR prevented her return to Sierra Leone, the case was not moot. The case was acknowledged as important not only in relation to the stronger protections Zainab Fornah will enjoy as a refugee but also in relation to the subsequent use of UK jurisprudence in relation to the convention's reach (Fornah [2006] 1; Chaudhry, 2007).

As amended by the 1967 Protocol.

See, e.g. Yale v. Secretary of State for the Home Department [2000]; P and M v. Secretary of State for the Home Department [2004] (England and Wales); In re Kassindja [1996]; Abankwah v. Immigration and Naturalization Service [1999]; Mohammed v. Gonzales [2005] (US); RRT N97/19046 [1997]; GZ 220.268/0-XI/33/00 [2002] (Austria); Re B(PV) [1994]; Khandra Hassan Farah [1994] (Canada).

As discussed by Auld LJ in Fornah v. Secretary of State for the Home Department [2005] 5–7 (herein after Fornah [2005]).

Remarkably the appeal permission grounds had to be drafted pro bono after the Legal Services Commission deemed the appeal unarguable (Tsang, 2006).

See further Nussbaum (1999), Okin (1998), Harris-Short (2003), Gunning (1991–92).

Rights of Women (2007) make a similar point. Welcoming the decision of the House of Lords they go on to argue: “decisions like these show the importance of having a judiciary and legal system that is representative of society as a whole and that there needs to be much more done to ensure that more women, and Black and Minority Ethnic (BME) women in particular, reach senior positions in the legal profession and judiciary” (p. 6).

This view is by no means unanimous among all women judges (see, for example, O'Connor, 1991; Anon, 2000).