Shining light: Helena Kennedy QC

How bad is Brexit for women? Just how inclusive does feminism have to be? What’s the greatest myth about female barristers? The forthright peer, social reformer and Bar luminary talks to Counsel


I meet Baroness Helena Kennedy QC at the offices of the International Bar Association in Holborn as she starts her new post as Director of its Human Rights Institute . Having listened to a number of her interviews, I knew that I would be warmly greeted by my first name. She strolls in with a smile: ‘Good afternoon, Alice… I’ve just come from a most interesting meeting. I must tell you all about it.’

Helena dives straight into Brexit – unsurprisingly, since she sits on the EU Select Committee for the House of Lords, chairing its Justice Sub-Committee, and has spoken at length about the disastrous effect Brexit will have on women and workers. Given her careful monitoring she has renewed concerns about the updated Withdrawal Agreement.

‘The wording has changed. They are back to keeping to the thing that they had promised to repeal; the Human Rights Act. When Brexit is over, they want out of the European Convention on Human Rights as well. We are going to be facing all that again. This is about a long project to take us out of an international legal framework in which our relationships in the world are guided by law rather than just the Wild West. That framework is inimical to ideologues who want a deregulated world, where the hand of the market will determine everything.’

What particular implications will Brexit have for women, I ask? ‘No Deal will have serious consequences for years to come. In an economic downtown you just know that women will be the first not to have work, especially if there are no protections. Brexit is bad for women because women’s work is often part-time. Flexible working, maternity leave, paternity leave, protection for part-time workers – all that sort of stuff came out of Europe. Can employment rights be protected going forward? I think it is really worrying.’

The protection of women and girls is also at risk; particularly those trafficked for sexual and criminal exploitation, forced labour and domestic servitude. This is something Helena knows a huge amount about, having headed up the Inquiry into Human Trafficking in Scotland for the Equality & Human Rights Commission: ‘Protection orders run all the way across Europe. Even a woman who is on holiday, pursued by a husband, partner or ex-partner can get the local police to deal with it... But those orders and arrest warrants to deal with traffickers will disappear.’

Working alongside family lawyers in the Justice Sub-Committee, she is also concerned about enforcement of financial maintenance post-divorce. Now, for example, you can ‘get an order in your court in Bromley or Huddersfield and it can be enforced in Italy, Poland, Germany… Those things are important to women, in order to get resources. But the idea of post-Brexit having to get an Italian lawyer!’ She shakes her head.

Keeping it international, I take Helena to a tweet the United Nations published on 5 January 2019: ‘A feminist = a person who believes in and stands up for the political, economic and social equality of human beings.’ Amongst the hundreds of replies was the comment: ‘Women are the only human beings who aren’t allowed to centre themselves in their own liberation movement.’

I ask Helena’s view: ‘So – both are [justified]. The statement is true and the criticism has weight. What the criticism is saying is that we are expected to be so expansive in seeking our own liberation and equality – and having to say “yes, guys have to be included in that too.” Of course, that is what has happened. You go to a conference on domestic violence – and we know the majority of domestic violence happens to women – and we are expected to say “of course there are some men who are battered as well.” It is true, and we should be inclusive in that fact, but actually let’s concentrate on the fact that it is women who are, by and large, at the receiving ends of violence or coercion or the absence of power. It is women who are usually at the receiving end of serial killing. You don’t get many women serial killers. You have to look at what’s behind all that.’

She pauses for a moment: ‘It’s interesting... Doesn’t that definition speak well of us? We go higher?’

Helena then tells me about a debate she did in March 2018 with Germaine Greer, Melanie Phillips and Sophie Walker (former leader of the Women’s Equality Party) on whether #MeToo had gone too far. ‘I had done my spirited call for equality, and a man in the audience said “and what’s going to happen to us?” as if equality for women meant a bad turn for them! It is true that equalising will mean men will not have the dominating position. They will not have automatic expectations... Those things will inevitably go. But think of being unburdened from what is expected of them. That responsibility to provide for their family. That sense of entitlement many men have that their career will take certain forms. Careers now will be more competitive. But we can also redesign how we work now, too.’

Her answer to him was simple: ‘The world will be better; it will be better for you. The benefits for men will be enormous!’ Helena expands on this: ‘It is why at the back of Eve Was Shamed I say “we ain’t gonna do this on our own”. It is in men’s interests too.’

Can men be feminists? ‘Oh yeah, absolutely! Though some have to be dragged. I haven’t managed to get my husband onto doing lots of the stuff that falls to women. Many of the new generation of men are, though. Millennials buy into this – though perhaps until they have children.’

How can men best help women? ‘First of all – listen to what women are saying, and second – in their intimate interactions to say “is this okay?”’

We talk about the Natalie Connolly case. In December 2018, John Broadhurst was sentenced for the manslaughter of Natalie by gross manslaughter. The jail term of four years was described as ‘disgraceful’ by her father. Many in the general public agreed, outraged and confused by the way in which the judge had dealt with issues of consent to sexual violence that formed part of the facts in the case.

How can we help make unpalatable legal decisions like these more accessible, I ask? ‘This was one of the things that started me writing. In the 70s, I contributed to a book called The Bar on Trial [1978]. I wrote about women barristers and chambers who did not take women. I then turned my watchfulness onto how all the law was working for women. Having written about this, I was then being invited to Woman’s Hour discussions – which became more than about making jam. So I think that one of the things I am reasonably good at is making law accessible. I do want to talk about the law in a way that regular folk will understand it.’

So as for Helena’s later seminal text, Eve Was Framed [1993]: ‘They never knew where to put it in a bookshop. What is this book? Is it a law book?’ Do bookshops know what to do with her latest work, Eve Was Shamed [2018]? ‘Certainly not! It is a book about our society, but they never know that, and put it in the women’s section!’

"Brexit is bad for women because women’s work is often part-time. Flexible working, maternity leave, paternity leave, protection for part-time workers – all that sort of stuff came out of Europe. Can employment rights be protected going forward? I think it is really worrying."

The book has a particular focus on prostitution. Helena’s arguments about criminalisation of buyers rest heavily on how difficult it would be to actually get evidence, suitable for court, that a man bought sex from a woman. Offences would be without independent witnesses, like rape. But also, Helena contended, ‘why would a woman, making a living out of this, want to say “he came, he had sex and he paid me £50?” She will do that because police will put pressure on her. And women will suffer more, particularly poorer women or those with addictions who so often have the police on their backs.’

Would she legalise brothels? Helena talks about the human trafficking inquiry. It was interesting to meet with women who were sex workers, who were found to be important in identifying trafficking. They ‘get the word through their network of clients’, and although they were not licensed they had ‘a good relationship with the police, who knew they were working. These women were not those being exploited by pimps. You have to know the circumstances of why the police bother to intervene.’

Ultimately, she says: ‘There is a way in which we have a duty as lawyers to alert people to the ways in which the reforms they want will not actually and practically produce the outcomes required.’

What does she want to write next? ‘At some point I would like, of course, to write a book about my life in the law. My brain might soon disintegrate! There are some aspects that would be interesting. I also want to write a book... about why justice matters. Why I feel law is so important. A more general book.’

But her priority really is shining a light on women and how they experience law, because ‘we still do not get it right’. She explains: ‘The purpose of Eve Was Shamed is that we look to law reform all the time, and I have been guilty of this. We, as lawyers, need to be much more alert to the ways in which we are failing to make the change. [I wanted] to try and go behind the business of law reform as the way forward. We can keep tweaking – but there has to be more.’

So what is the greatest myth about female barristers? ‘The idea that they are not going to fight as hard as the men, which is of course a complete nonsense; women lawyers like to win just as much as everybody else! Winning has been a motor for me; I want the best result for my client.’

‘There also used to be this thing about women’s voices; that they are too softly spoken or that the timbre of a women’s voice is not right. People did say those things in the early years. I remember, when I started, people commenting on the fact I had an accent. I think it worked to my advantage in front of a jury – I wasn’t one of those posh folk! I did have to learn to speak more slowly, though. I was a Glasgow girl who went at things at the speed of knots; I had to learn to be more measured.’

Are we female lawyers nearly there yet? ‘There are fewer areas where there is an absence of women, but just look at how there are not many senior partners in law firms who are female. There is still this idea that commercial clients would be more comfortable with a male lawyer.’

Entry figures for law are ‘fantastic’ but ‘one of the big problems now is that women still tend to choose areas of law about the human condition, where the client is not an entity. Mergers and acquisitions seem to be of less interest to many women. So we find women go into lower paid areas, which have been cut to the bone by the destruction of legal aid. That area of law has been completely mutilated.’

She recounted, with dismay, stories of women who say to her ‘I was a barrister.’ ‘It makes me want to weep.’ It is why she is so in favour of female quotas for the judiciary.

Would she want to see these methods adopted for pupillage recruitment to get women into areas typically associated with male barristers? ‘I would really like to know more. I would want to do a profiling of a commercial law chambers. How many women are in them? What is their trajectory? Should there be any proactive work done?’

Helena was inspired recently by a female senior partner she met. ‘She didn’t believe in quotas, but kicked ass and was very influential on her board. This firm had offices all around the world, and she would be an ambassador. She would ask all these offices – why are there no female partners here? What is happening here? And she would expect to see change by the next year.’

So Helena’s solution to elevating women at work? ‘You have to incentivise it. Make part of the business of bonuses be about asking what that person has done for women? For ethnic minorities? If you haven’t done it then your bonus shouldn’t be as good. Doughty Street [Helena’s chambers] is full of the most fabulous women. I know that is true for many sets. I just think that some people need to be dragged to the drinking fountain. You have to push them.’

"The idea that [female barristers] are not going to fight as hard as the men… is of course a complete nonsense. Women lawyers like to win just as much as everybody else! Winning has been a motor for me; I want the best result for my client."

Helena has always been pioneering. She opened a set of chambers when she was 24 years old and just out of pupillage. I ask about an interview she did in 1998 for Radio 4’s Desert Island Discs in which she spoke about how clerks in the 1970s were paid on a percentage basis, that tended to favour those who clerks felt might earn more money; usually the men. So in 1974, Garden Court was set up with a salaried clerk, who wouldn’t just back the big dogs for a higher income. This hugely changed the way in which women progressed at the Bar.

This sounds so contemporary to me; many chambers still operate in this way. When setting up Doughty Street in the late 80s, Helena and colleagues put in place ‘these new practice managers’, a chambers librarian, and conference rooms, which are now, of course, also commonplace. ‘We wanted to create it like a modern business. We wanted to get away from the old clerking business. We were ahead of the game.’ It became ‘infectious’ she said, ‘setting up new chambers. I liked doing it! I discovered I am rather entrepreneurial! I am quite good at seeing how you can be more effective as a small business but with high ethical standards.’

So I ask, if she were to do Desert Island Discs again in 20 years’ time, how will chambers and how will lawyers be working? ‘A battle will be in how we reorganise work. This is difficult in the law, but the law is now being organised in a different way, along with technology. I would like to see the law leading the way in advances in technology, in a way that protects our freedoms and all the good stuff that comes with our interconnectivity. I think that, and the impact of climate change, is a big challenge.’

Yet we are also ‘at a moment in time where we people want deregulation, not international courts. We are seeing the unpicking of all the efforts made after the Second World War, in creating the United Nations and the European Convention on Human Rights. All that is being unravelled by people who feel that there is too much law. But I am a believer that law matters. It is a way that we understand the rules of how we relate to each other – as men and women, parent and child, person and state; you do need that.’

‘The point that I would like take to Desert Island Discs when I am 80 (let’s hope that happens)... is that we had hadn’t allowed the rules-based international order to be dismantled... There are those people that say the market is the solution to all things and that we do not need law; that is a wild and frightening prospect.’

Alice de Coverley has a civil practice at 3PB, including education, equality and personal injury law. She is a member of the Counsel Editorial Board.


Eve Was Shamed: How British Justice is Failing Women, Helena Kennedy (Chatto & Windus, 2018, ISBN 9781784742225)
   

Helena is interviewed on Giles Fraser’s Confessions and First100Years.

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Alice de Coverley

Alice has a busy civil practice at 3PB, including Education, Property, Commercial and Personal Injury law. She is a member of the Counsel Editorial Board.