Brenda Hoggett

alias : Dame Brenda Hale / Mrs Justice Hale

Brenda Hoggett, as a member of the Law Commission played a major role in the development of the Family Law Act 1996.

This is the Act which incorporated the 'no-fault' divorce principle, already introduced in the 1970s by stealth, into statute, without the approval of most of the public or even of their knowledge.

The effects of 'no-fault' divorce on men are described in our publications pages.

She has also promoted the idea that the law should treat married and cohabiting couples in the same manner.

This article from The Times mentions that "in some quarters of the press she was seen as a subversive, plotting the break-up of the family". It also describes "As a High Court Judge she is supportive, challenging and inspiring". It does not explain :

who she supports
what she challenges
who she inspires and with what.

These are not the words which UKMM would use to describe her.

Anecdotal evidence about her attitude, her agenda, her beliefs, and what she is prepared to do to men in court cases is given in the following story :

One of the Cheltenham Group members 'Mr T', was obliged to apply for leave to appeal to the Court of Appeal (CoA). One of the two judges at the hearing was Mrs Justice Hale who was temporarily acting in the CoA. ‘Mr T’s’ ex-wife had previously obtained a clean break, obtaining all of the equity in the home. She had returned to court two years later asking for a 40% rise in maintenance for the children. The County Court Judge granted her this request, and so ‘Mr T’ applied to the Court of Appeal to have this unjust judgement reversed. Mrs Justice Hale told ‘Mr T’ that he could not have a clean break from his children. ‘Mr T’ had been forcibly separated from his children, and did not want any ‘break’ from them in any way whatever. It is considered that Mrs Justice Hale’s statements in court are as offensive as they possibly could be in the circumstances, and demonstrate her real beliefs and motivation in family law issues.

Acknowledgement : image from The Times of 18 May 1999

times18may99.gif (56278 bytes)

Last week the Mail exposed moves to equate marriage with living together. Today we focus on the faceless lawyers behind these disturbing measures

Now that the Family Homes and Domestic Violence Bill has been put on hold and there is a question mark over the Divorce White Paper, some MPs are beginning to take a jaundiced second look at the source, not only of these two potential Acts of Parliament, but of much else besides: the Law Commission.

It is an Institution everyone has heard of, but nobody knows anything about. What, precisely, is the Law Commission? Has it always been there? More to the point, what is its purpose and could we do without it?

The brief answer is that it is a government Quango, set up by Harold Wilson in 1965. Its brief was to produce new legislation - the reforming legislation that Wilson needed for the ‘New Britain' he promised.

Now, It is one of the few things left of Wilson’s brave new world (apart from the Open University). It is still there beavering away, the last relic of Old Labour untouched by the political upheavals of the Thatcher era.

The Law Commissioners, in fact, have a bidden agenda, hidden, at any rate, by most of them for most of the time - but not by all of them for all of the time.

One commissioner, Mrs Brenda Hoggett, now the High Court Judge, Mrs Justice Hale (she has reverted to her maiden name), has never made any secret of her agenda.

When she became a member of the Commission in 1984, she declared that she was "a feminist of the kind who would like to see changes in the way society is organised".

Her reforming zeal has been given its head by her fellow Commissioners. She has now left the Commission: but her fingerprints are all over some of the most revolutionary draft Bills it ever produced, including one horrendous piece of potential legislation still being actively considered by the Lord Chancellor's office — of which more later.

Meabwhile consider two of her babies - the ‘Live-in-Lovers Bill’ (now shelved) and the proposed ‘Divorce Bill’. The Government insisted that the first Bill would not have blurred the distinction between marriage and cohabitation, and that the second, which may still be announced in the Queen's Speech, would actually strengthen marriage.

But what are the commissioners themselves really after? What do they believe about cohabitation and marriage? What they believe is very different from what the Lord Chancellor believes.

"The piecemeal erosion of the distinction between marriage and non-marital cohabitation" declared Justice Hale approvingly when she was still an academic lawyer in Manchester "may be expected to continue".

As for strengthening marriage, It is no part of her priorities: "We should," she asserts, unambiguously, "be considering whether the legal Institution of marriage continues to serve any useful purposes."

These are the beliefs that got her on to the elite and unaccountable Commission. These, and not the decent bourgeois values the Government has read into them, are the beliefs these two Bills were designed to embody.

She is illuminating, too, about the thinking that lies behind Mrs Bottomley's Children Act (which Justice Hale considers to be her highest achievement). Family Law, she says, no longer buttresses marriage because "It has adopted principles for the protection of children and dependent spouses which could be made equally applicable to the unmarried"

One draft Bill is presently sitting on the Lord Chancellor's desk, the implications of which are more revolutionary, more frightening and more dangerous than anything the Commission has produced in its three decades of existence.

If the recommendations of its so-called Report on Mental Incapacity ever become law, the whole way we look at life and death will never be the same again. Like the ‘Live-in-Lovers Bill’ this Report has been - so far - virtually unnoticed by MPs and the Press.

The proposed Bill is huge, both in its length and its implications. MPs need to get their researchers on to it urgently.

• Passive Involuntary Euthanasia - withdrawal of treatment without your permission.

• Non therapeutic surgical procedures authorised by the Secretary of State (this could mean organ removal, sterilisation or abortion) without the patient's consent.

•Certain kinds of research on patients without their consent (this probably breaches international law).

•Giving rights to 'Continuing Attorneys’ - a third person appointed to make decisions about a patient's treatment, including decisions about life or death. That person has not necessarily had medical training.

•It would also legalise so-called 'living wills', in a form so far resisted in this country because of their dangers.

Many of us would like to be able to insist that at the last we should be nursed at home, and not in a hospital on the end of tubes and life-support machinery. But the Law Commission's proposals go much further they would allow a badly advised, but nevertheless enforceable legal document to be drawn up specifying, for instance, that in the ease of a stroke or a serious accident, no treatment should be given.

But Strokes and Serious accidents do not always bring death If left untreated and with treatment, near normal health can often be restored.

A doctor, if such a document were in existence, would be forbidden by law to give any such treatment until the patient was conscious and mentally capable, leaving many patients not dead, but severely disabled. In some American States this is already happening.

Why has the Law Commission not done more damage than it has already? One answer to that under Mrs Thatcher many of its proposals were ignored. But then came a great change. In 1992 after voluble complaints from the then Chairman of the Commission, High Court Judge Sir Peter Gibson, the Lord Chancellor decided to put his weight behind it, in particular the proposals to shorten the length of time taken to get reforming legislation through Parliament.

But do we really need all this radical new legislation? The Government has enough problems on its hands without this continuing source of division.

"That Government is best that governs least" wrote Edmund Burke, by which he meant that constant and officious striving to do unnecessary and potentially damaging things was a sign of bad government.

There is, however, one reform, which could be encompassed with very little legislative time – the abolition of the Law Commission itself. It should now be consigned to the graveyard of the Wilson era, together with Neddy and the Department of Economic Affairs.

The Commission is like a chicken that has passed its sell by date: It has become not just dubious, but downright dangerous.

Dame Brenda Hale the first non-practicing academic to be appointed a High Court Judge, has two less admirable claims to fame.

A former Law Commissioner, who was made a Dame of the British Empire last year, she to the person most responsible for the Lord Chancellor's highly contentious plans to end the concept of fault in divorce cases, and to give live-in lovers the same rights as married couples in cases of domestic violence.

And the twice-married feminist who now uses her maiden name is one of those coldly logical Intellectuals whose permissive agenda calls into question the very concepts of marriage and of the family "Do we still think it necessary, desirable or even practicable to grant (marriage) licences to enter into relationships? Do we no think it necessary or desirable to grant licences to engage in parent-hood? And how far do we still think it necessary, desirable or practicable to delay the ending of relation-ships?".

These radical questions were posed by her in the prestigious Kings College Law Journal in 1992 but they are typical of dozens of articles and lectures she has delivered down the years.

This particular article continued: "The Lord Chancellor himself has said that it to not the business of the state to enforce or promote any particular style of family life. It is simply unrealistic to attempt to return to anything which looks like a set of rules about how people should conduct their private lives".

And she concluded: "If we abandon the increasingly futile attempt at (marriage) licensing, the other objectives of family law are just as valid for unmarried couples and their children as they are for the married... In many ways I would like to see an end of family law."

Those who know Mrs Justice Hale insist that such unorthodox expressions of opinion are not just the intellectual musings beloved of professors who want to provoke their students into thinking about their subject. Justice Hale, 50, is a true believer with a clear agenda.

They point to an earlier work, Ends And Means: The Utility Of Marriage As A Legal Institution, one of a collection of essays on marriage published in 1980 and edited by J.M. Eekalaar and S.N. Kats, as an example of the manner in which her cool legal logic can lead to what many would regard as extreme, even amoral, positions.

In it she wrote "Family Law no longer makes any attempt to buttress the stability of marriage or any other union... Logically we have already reached a point at which, rather than discussing which remedies should be extended to the unmarried, we should now be considering whether the legal institution of marriage continues to serve way useful purpose".

Observers recall her annoyance when she spoke at a recent meeting called by Relate (formerly the Marriage Guidance Council). She was questioned about the apparent conflict between her views on the irrelevance of marriage and the fact that she had wed for the second time at the end of 1992.

After admitting that her position had "changed slightly", she simply ploughed ahead, rehearsing the arguments she had adopted so consistently for two decades. Between 1984 and 1994, Mrs Justice Hale was given the opportunity to develop her views as one of five Law Commissioners, the first woman to be made a member of a body, which is charged with conducting a rolling review of the legal system. It was just beginning its examination of child-care laws, which culminated in the ‘Children Act 1989’. She was to be its chief architect. Subsequently, Justice Hale was closely involved in developing the idea of the no-fault divorce, and in codifying and extending the rights of unmarried 'cohabitees'. These ‘reforms' have bubbled through the political system to emerge as the ‘Divorce Bill’, which the Lord Chancellor is under intense pressure to drop from the Queen's Speech, and the ‘Family Homes¹and Domestic Violence Bill’, already under review by the Lord Chancellor following last week's rebellion by Tory backbenchers.

Intriguingly, Justice Hale's own domestic circumstances have not been simple over the years. Her second husband, Julian Farrand - nine years her senior and now the pensions Ombudsman — served with her as a Law Commissioner between 1984 and 1988. They had come down to London from Manchester University where they both taught law. She was at the time married to John Hoggett, who also taught law at Manchester. He remained behind In Manchester.

Justice Hale has been guided by her friend Mr Farrand since the late Sixties when the older man advised her on her career development. He it was who insisted that the ambitious, assistant law lecturer, who had been educated at Girton College, Cambridge, during the restive mid-Sixties, should give up her time-consuming legal practice to concentrate on writing and research.

They were married on New Year's Eve, 1992, only nine days after her divorce from Mr Hoggett, and ten days after Mr Farrand's 25-year marriage had been dissolved. She was quoted in the Solicitors' Journal last year as saying that she and her first husband simply 'grew apart 'when she came south with their daughter, then aged 11. She added: "He (Julian, her second husband) likes to say it took 20 years to fall in love at first sight."

The hundreds and thousands of child victims of divorce in Britain wish that Mrs Justice Hale had kept her views on marriage to herself.