Insight: Feminists rebalance the scales of justice in Scotland

Chloe Kennedy, lecturer in criminal law at Edinburgh University. Picture: John Devlin
Chloe Kennedy, lecturer in criminal law at Edinburgh University. Picture: John Devlin
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Legal experts celebrate 100 years since women were allowed to practise law by re-examining six judgments skewed by gender bias, writes Dani Garavelli

A century ago, the passing of the Sex Disqualification (Removal) Act 1919 allowed Madge Easton Anderson – a Scot who had studied at Glasgow University – to become the first woman to practise as a professional lawyer in the UK.

Preparations for the forthcoming exhibition. Picture: John Devlin

Preparations for the forthcoming exhibition. Picture: John Devlin

Much has changed since then: today, women make up more than 50 per cent of solicitors under the age of 40 in Scotland and the President of the Supreme Court is a woman: Lady Brenda Hale. As Lady Hale has pointed out, however, there is a long way to go. The upper echelons of law – and certainly the judiciary – are still predominantly male.

What are the consequences of this gender gap? In her book, Invisible Women, Caroline Criado-Perez has pointed out that a dearth of women in tech has produced a world designed by men for men. Could it be that under-representation at the top of law has resulted in a similar systemic bias?

To mark 100 years of women in law, three academics – Sharon Cowan, professor of feminist and queer legal studies at Edinburgh University, Vanessa Munro, professor of law at Warwick University, and Chloë Kennedy, lecturer in criminal law at Edinburgh University – co-ordinated the Scottish Feminist Judgment Project, an initiative which involved re-examining 16 important legal judgments from a feminist perspective. They found the decisions the judges had reached were by no means inevitable, and that, in many cases, a feminist perspective would not only have altered the outcome, but taken the law in a different direction.

The rewritten judgments will be brought together as a book and published by Bloomsbury in the autumn. The academics hope they will be read by legal theorists, practitioners and students.

To make the project more accessible to the general public, there is also an associated exhibition of art, music, poetry and film based on the rewritten judgments. The exhibition includes several Jay Whittaker poems inspired by the plight of a woman bludgeoned to death by her ex-partner, and an installation called For The Relics. Loosely modelled on a confessional, it memorialises a tenant farmer who killed himself during a protracted court battle.

Here, Scotland on Sunday looks at six of the rewritten judgments. They demonstrate the difference taking a feminist perspective can make to all fields of law.

Jex-Blake v Senatus of Edinburgh University, 1873

In recent years, the so-called Edinburgh Seven – led by Sophia Jex-Blake – have become something of a cause célèbre.

Sharon Cowan, professor of feminist and queer legal studies at Edinburgh University. Picture: John Devlin

Sharon Cowan, professor of feminist and queer legal studies at Edinburgh University. Picture: John Devlin

The women were accepted as medical students and passed their initial exams with flying colours. But some professors resented their presence and refused to teach them.

Eventually, the women went to the Outer House of the Court of Session to ask whether it was lawful for the university to treat them in this way when they had paid their fees and matriculated. The initial judgement went in their favour, but the Inner House later found against them.

In coming to its conclusion, the Inner House looked at the founding documents of the university – which, it ruled, excluded women – and at the concept of “custom”: the idea that if something has been the same way for a long time, that’s the way it should be.

In other words, the Inner House judges decided that, as no woman had ever graduated from Edinburgh University before, this was reason to hold that the women who had matriculated should not graduate either.

Vanessa Munro, professor of law at Warwick University. Picture: John Devlin

Vanessa Munro, professor of law at Warwick University. Picture: John Devlin

Kennedy, however, insisted that, while the founding documents, written in Latin, used masculine words for “scholars”, those terms encapsulated women in much the same way as the word “mankind” takes in all of humanity.

On the issue of custom, she said if you looked to other European jurisdictions in the same era, women were not only graduating from universities, but becoming professors. In addition, graduation itself had only become an important facet of Scottish universities in the middle of the 19th century. The “custom” appears less clearly to support the women’s exclusion when viewed in this wider context.

In a reflective statement, Kennedy cited John Stuart Mill’s The Subjection Of Women, written in 1869, to demonstrate that some men, potentially including male judges, held progressive views on women at that time.

As a result, she found in favour of Jex-Blake and her peers being allowed to finish their degrees 
and graduate. In reality, it took another 20 years for Marion Gilchrist to become the first woman to qualify in medicine at a Scottish university.

Salvesen v Riddell, 2013

Re-examined by Aileen McHarg and Donald Nicholson

The least obviously “feminist” of the six cases, this court battle revolved around section 72 of the Agricultural Holdings (Scotland) Act 2003, which restricted the right of a landlord to evict a tenant farmer.

Determined to force Andrew Riddell off his land, billionaire Alastair Salvesen had challenged the competence of the Scottish Parliament to introduce the legislation, alleging it infringed his human rights.

Both the Inner House and the Supreme Court ruled in Salvesen’s favour on the grounds that the legislation affected the landowners’ right to the enjoyment of their property, was unfair and discriminatory to those caught retrospectively by its introduction, and was outside the legislative competence of the Scottish Parliament.

The case had hit the headlines in 2012 because, weeks before Riddell was due to leave his East Lothian farm, he killed himself. The Court of Session had enforced a notice to quit.

McHarg and Nicholson believed the case lent itself to a feminist rereading, employing an ethic of care as opposed to the arguably more masculinist ethic of justice which characterised the original judgments.

Where the ethic of justice is founded on the idea that everyone should be treated equally in formal terms and according to their rights irrespective of the consequences, the ethic of care requires that as far as possible no one should be hurt, and that relationships and loved ones be protected.

In a reflective statement, McHarg and Nicholson said that in both the Inner House and the Supreme Court, the issues had been presented in very formalistic and rights-based terms: Salvesen exercised a contractual right freely entered into by the Riddells and had been (unfairly) retrospectively penalised by the Scottish Parliament. But the interests – and indeed the rights – of the tenants, as well as the tragic human story that lay behind the legal case, were almost entirely missing.

The writers reinserted the Riddells, and the human impact of the decision to invalidate section 72 of the 2003 Act, into their judgment. They also constructed the case not simply as involving an interference with the landlords’ rights, but as involving a range of (actually or potentially conflicting) rights, needs and interests. This was not a case in which the legislature was interfering with the landlord’s rights in pursuit of some abstract, disembodied public interest, they wrote. Rather, it was intervening in support of the rights and interests of agricultural tenants, but more generally in support of the social and economic rights of the general citizenry who benefit from the productive and sustainable use of agricultural land.

McHarg and Donaldson drew on feminist understandings of property as a social and relational institution to challenge the “highly formalistic” analyses employed by Lord Gill (in the Inner House) and Lord Hope (in the Supreme Court). “This allowed us to emphasise the responsibilities, as well as the rights, that come with ownership, and the social objectives that are a legitimate part of a democratic decision to allocate and reallocate property rights.”

Their judgment demonstrates that a feminist perspective can be useful across all areas of law (not only those which are clearly gender-related).

Ruxton v Lang, 1998

Re-examined by Sharon Cowan and Vanessa Munro

In 1997, Fiona Lang was separated from, but still living with, her abusive partner Callum Scott as she waited for alternative local authority accommodation. One night she came home late with a male companion. Both she and Scott had been drinking and Scott threatened her with a knife. In order to escape him, she jumped in her car to drive two miles to her brother’s house. Scott phoned the police to report her for drink driving and officers tracked her down and breathalysed her. Then they took her home “at her own request”.

Prosecuted for drink-driving, her lawyers lodged a defence of necessity – ie they claimed she had no choice under the circumstances other than to commit the offence.

Rejecting this, the sheriff convicted her. She sought leave to appeal to the High Court, but was denied. Cowan and Munro have written a hypothetical judgment based on the questions that would have to have been answered if leave to appeal had been granted.

There was little reference to Lang’s history of domestic abuse in the sheriff’s original judgment, so the academics tried to bring her experience in from the margins, along with scrutinising the nuts and bolts of the necessity defence.

Describing it as “narrow and ill-defined”, Cowan and Munro nevertheless identified two tests that have to be met for it to succeed. 1) The person involved has to be facing an immediate threat to life, and 2) They must have no prudent alternative course of action.

In terms of the danger, they found that, while Scott might not have been right beside her as he wielded the knife, the years of domestic abuse she had endured meant it was reasonable for her to perceive the threat as real and immediate.

In terms of possible alternatives, they found Lang had no mobile phone. The only phone box between her house and her brother’s wasn’t working and the only police station on the route was closed.

The academics visited the Glasgow Women’s Library archives and found that, by 1998, there was a wide appreciation of the issue of domestic abuse and a particularly acute concern in the Scottish context regarding the relationship between alcohol and domestic violence.

They were also keen to call out some of the language used in the original judgement. Throw-away references in the case belittled the assault perpetrated by Scott on Lang as a “mere domestic disagreement” and suggested that the distress she experienced was probably lessened by her familiarity with abuse.

Cowan and Munro hope the Domestic Abuse (Scotland) Act 2018 means “judges, feminist or otherwise, will now have no choice but to give consideration to the various ways in which violence, abuse, coercion and control can constrain women’s choices to escape and report their abusers.”

McKearney v HM Advocate, 2004

Re-examined by Pamela Ferguson

In 2004, John McKearney broke into the house of his ex-partner, choked her, threatened to kill her and, towards the end of a four to five-hour ordeal, had sexual intercourse with her against her will.

At his trial, the jury was told to ignore his claim that he honestly believed his victim was consenting, and he was convicted of rape. However, on appeal, the High Court ruled the jury had been misdirected. The judges said jurors should have been told that if they accepted that McKearney believed his ex-partner, who lay rigid throughout, was consenting – however erroneous his belief – they should acquit.

The confusion arose because of recent changes in the law on rape. In most trials, two separate things have to be proved 1) that the act took place, and 2) that there was “mens rea” – or “guilty mind”. Where rape is concerned, the mens rea at the time the case was heard was knowing the woman was not consenting or being reckless as to whether she was consenting or not.

Until 2001, the crime of rape required force. Because of this, mens rea was not really an issue. If force was used, then clearly there was no consent.

But once rape became “sexual intercourse without consent”, mens rea was not so easily established.

The appeal judgment in favour of McKearney caused a public outcry. After all, his victim had been subjected to a protracted campaign of abuse. How could McKearney have reasonably believed she consented? The problem was that the appeal court looked to previous cases in which judges had stated the accused’s belief did not have to be based on “reasonable” grounds.

In her feminist judgment, Ferguson agreed that the appeal against conviction should have been granted. As the law in Scotland no longer required proof of force as evidence of mens rea, she said a specific direction on this point was required. However, her judgment was markedly different from the original. For a start, Ferguson said the High Court judges’ insistence that the accused’s “belief” did not have to be based on “reasonable grounds” was “wrong in principle”.

She also took a different approach to consent, moving from the expectation that women simply “agree” to the advances of men to the concept of mutuality.

Thus, she said, a conviction was merited where the perpetrator had an unreasonable belief that a woman was consenting, on the basis that he had “failed to display even the most basic sense of decency and consideration for others”.

In a reflective statement, Ferguson said the most depressing aspect of the case was that Lord McCluskey (one of the three judges) thought the jury ought to have been allowed to consider that the accused believed the complainer was consenting to have sex with him, despite his earlier assaults and threats to kill her.

“Adopting this perspective means, at best, that McKearney was prepared to have sex with someone who was entirely unresponsive. It shows us that some men see women as a means to an end and have little regard – or indeed no regard whatever – to what a woman herself might need, or want,” she said.

“The really depressing aspect of McKearney is not that this is how some men view the world, but that a Scottish court ruled that those who hold this view, and who act on this view, are entitled to an acquittal.”

Drury v HM Advocate, 1998

Re-examined by 
Claire McDiarmid

Stuart Drury had been stalking his ex-partner Marilyn McKenna – there were interdicts against him – when he turned up at her house and found her with another man. He took a claw hammer and bludgeoned her multiple times on the face. She suffered a massive stroke and died in hospital the following day. Drury insisted that, though they no longer lived together, they were still in a relationship, although his convictions for stalking make this unlikely.

He was unanimously convicted of murder, but not before the judge had ruled that it would be appropriate for the jury to consider a defence of “provocation by sexual infidelity”.

In England and Wales, provocation by sexual infidelity is not enough in itself to ground a defence, but it is enough in Scotland.

Drury’s trial highlights several potential problems with Scots law. The first is its reliance on 18th century institutional writers such David Hume. Even now, judges’ decisions are often based on principles these writers established hundreds of years ago. McDiarmid found the doctrine of provocation by sexual infidelity was an outdated norm influenced by the late 17th and early 18th century belief that the “man of honour” would feel and express anger in a particular way.

She considered this approach had no place in 21st century society and that the provocation by sexual infidelity defence was, in any event, too widely applied on the facts of Drury.

An additional issue highlighted by the case is the insidious nature of gender bias. Cowan and Kennedy say the defence of provocation – whether by violent assault or sexual infidelity – refers to acts committed in the heat of the moment and is therefore more suited to men, as women, particularly women in abusive relationships, are less likely to react in this way.

Bereft of power, they are more likely to behave like Kiranjit Ahluwalia who, in 1989, set fire to her partner while he was sleeping. Ahluwalia, who lived in London, was originally convicted of murder, but the charge was reduced to manslaughter on the grounds of diminished responsibility after a campaign by Southall Black Sisters.

In England, Wales and Northern Ireland the defence of provocation was replaced with a new partial defence of “loss of control” in 2009. This new defence was aimed at better addressing the gendered contexts within which a large number of homicides are committed.

In practice, however, it seems sexual infidelity is still being cited as a factor in “loss of self control” and that shorter sentences are being given when it is present.

The law on homicide is currently under review in Scotland. Cowan, Munro and Kennedy hope the defence of provocation by sexual infidelity will be scrapped.

Rainey v Greater Glasgow Health Board, 1986

Re-examined by Nicole Busby

Until 1980, Glasgow Health Board had only used prosthetists (people who fit artificial limbs) supplied by private contractors. When a decision was taken to establish a dedicated service within NHS Scotland, the pay grade was set at the same level as a medical physics technician. But the only qualified prosthetists at that time were those employed by the private contractors and NHS Scotland needed to recruit a bloc of 20. Realising they wouldn’t come for lower wages, those prosthetists were offered the chance to keep their existing pay and conditions. All of those employed on this basis were men.

A few years later, Elizabeth Rainey was also taken on as a prosthetist; she had not previously worked for a private contractor and was paid at the lower rate. As a result, Rainey took an equal pay case to an employment tribunal which ruled the discrepancy had nothing to do with sex. Subsequent appeals to the Employment Appeal Tribunal and the Court of Session and the House of Lords also found against her.

Before drafting her feminist judgment, Busby consulted statements made in the House of Commons by Barbara Castle who, as the secretary of state for Employment and Productivity, was responsible for overseeing the introduction of the Equal Pay Act 1970.

At the Bill’s second reading, Castle referred to what would become section 1(3) – the provision under review in this case. “The intention of the Bill is not to prohibit differences in pay between a woman and comparable male workers which arise because of genuine differences other than sex between her case and theirs,” Castle said. “If an employer wishes to make additional payment to people employed on like work, in respect of matters such as length of service, merit, level of output and so on, the Bill will do nothing to hinder him, provided that the payments are available to any person who qualifies regardless of sex.”

She also discovered Lord Grieve had given a dissenting Court of Session judgment in which – like her – he referred directly to parliament’s intention.

Busby’s judgment looked behind the mere “coincidence” or “accident” of the gender difference in the two pay groups and suggested that factors such as prior disadvantage may be responsible for women ending up in lower paid jobs.

“We are fortunate to have a vibrant and active feminist movement which inspires and leads law and policy changes which impact positively on women’s lives,” she wrote in her reflective statement.

“Nonetheless, gendered pay gaps endure. The 2016 Annual Survey of Hours and Earnings recorded a 15 per cent gap between men’s and women’s average hourly rates, rising to 32 per cent when women’s part-time average hourly rate is compared with men’s full-time hourly rate.

Busby also referred to the Glasgow City Council workers who finally won their equal pay battle earlier this year. “The House of Lords’ judgment in Rainey and the ongoing fight for equal pay by Glasgow’s women are joined by a single thread,” she wrote.

The exhibition inspired by the judgments will be at the Mount Florida Studios and Gallery from Wednesday to Sunday.