Helena Kennedy: ‘Brexit is a disaster for women’

The barrister’s fights for equality and justice made her a household name. But, she says, leaving the EU could set everything back decades

Helena Kennedy, in her subtly grand Doughty Street chambers, is as warm and vivid as she has always seemed from a distance. We are here to discuss her new book, Eve Was Shamed, a follow-up to her first, explosive criticism of the legal system’s treatment of women, Eve Was Framed, published in 1992. Reading the new book, recalling just how many people the barrister has gone to war with, from ossified old judges to New Labour and its agenda of “doing good by stealth”, I wondered whether she has had to consciously craft this winning manner in order to say the difficult things she has spent her career saying. “I just am who I am,” she says. “I never think I’m being particularly radical. But people make assumptions about you because you fight your corner. When I was in my 30s and raising these issues, I went to dinner with a judge and he said: ‘I’m so surprised to find you as nice as you are; I always thought you must be a harridan.’”

She tells the most awful story about justice in the 80s: “I remember representing a young trans woman who was raped. When she reported it, the police laughed; it was horrible, she was torn and she could hear them laughing. It was before you could change your documentation, so they said: ‘You’re not a woman; you’re not covered by anonymity laws.’ So she decided not to proceed and withdrew her allegation. And they prosecuted her for perverting the course of justice. The judge ended up giving a conditional discharge and was quite sympathetic. But it was a disgrace.”

Kennedy did the world’s first case about transgender rights, at the European court of justice, in 1996: “I was the pin-up of the transgender movement.” She is compelling in the portrait she paints of the issue, from the 70s – when trans people used to be picked up by police almost as a sport – through the 90s, when human rights legislation interceded and “that started the ball rolling on trans rights”, to the rigid divisions of today. The story distils the complicated but trenchant thrust of the book: justice for women in this country is failing at every point of our interaction with it, for reasons ranging from age-old prejudice to modern austerity. But we do ourselves no favours if we forget how bad things were before.

Rape is another example in which injustice persists, even though important things have been achieved. Kennedy herself pioneered the objectivity principle: “It used to be, if you believed she was consenting, that was your argument – it didn’t matter if she was saying ‘no’. I battled through the 90s to get this changed and bring in an objective element: would a reasonable man have thought that? If tears were running down her face, would a reasonable man not have thought: ‘What’s going on here?’ Yet we’re still having problems with rape convictions. And people who are heid bummers [bosses] at the bar say, ‘Don’t tell women who have been raped that the system doesn’t work for them because then they won’t come forward.’ Which is true, but at the same time, are we going to be complicit in not trying to get things changed?”

Helena Kennedy in 1999.
Helena Kennedy in 1999. Photograph: Martin Argles/The Guardian

To return to the trans debate as it now stands: “Back when the answer was an operation, you presented as a woman for a year, you would be psychiatrically assessed and you’d go to Charing Cross [gender identity clinic, for surgery]. Increasingly, people are saying: ‘I’m gender fluid and I don’t intend on mutilating my body.’ And that’s where it becomes more problematic. Is self-classification going to be enough? I don’t think it can be.”

But can this be the final word? There’s a 10-year wait for gender reassignment on the NHS; if you’re not considered legitimate until you have surgically transitioned, that means you only have rights if you can afford them. Her response is relevant to everything, from equality, to Brexit, to the fundamentals of a high-functioning judicial system. “Listen, I’d like to be able to give you the perfect answer. It’s just that I do think these things involve careful judgments and people are shying away from careful judgments.” When politicians tell us we’re sick of experts, when the BBC puts on a climate change denier as an equal and opposite voice against a scientist, when campaigners fight for blanket bans and absolute rules, all these are part of a mood that interrupts justice, both in its literal execution and its broadest possible sense. “It seems to me it’s one of those things that cuts across the whole of society – we have stopped trusting professionals to make judgments.”

Kennedy, now 68, didn’t go into the law to become a feminist QC: “When I came into the law 40 years ago, it was with some social-work notion; I thought I might be a trade union lawyer.” In Eve Was Shamed – which is a memoir as much as a critique of British justice – she gives a pacy account of her parents’ scepticism. As working-class Glaswegians, they may have been OK with her being a teacher; they hadn’t expected anything like this. Her mother wouldn’t even set foot in a solicitor’s office when a landlord’s slate fell on her head and damaged her eye. “She thought it would cost her money, which it probably would have done, so she just said: ‘Thank God for the NHS,’ and moved on.”

“I came in with a class perspective, but then, suddenly, being involved in the women’s movement, you started looking at this through a different prism.” By the 90s, she was a Woman’s Hour stalwart – “they used to get me on to talk about rape and domestic violence” – and her criticisms gained impact as her status solidified. She became a QC in 1991 and was a natural supporter of New Labour, as well as seeming very much part of the gang at the time, a close friend of Cherie Blair. But, “Darling,” she says, “you have obviously got a short memory.” In fact, she was an ally to them before they took power, as chair of Charter 88 – a pressure group that pushed for democratic reform. “That’s how I ended up in the House of Lords.” Once they were in government, the new Lady Kennedy of the Shaws disagreed with them on everything; Wikipedia, she notes, “says that during the Labour years, I voted more times against the government than anybody else. I’m sure that’s true”.

Kennedy in 2002.
Kennedy in 2002. Photograph: Emma Boam/Rex/Shutterstock

Her disappointments with the Blair years, while fun to pick over, will be pretty familiar to anyone else who lived through them (ratcheting up prison sentences, Tory-lite posturing over crime and defence, kowtowing to the tabloids). What I’m interested in is Charter 88. It was all quite slow-burning stuff: House of Lords reform, devolution, civil liberties, alignment with Europe over human rights. These were not barricades you could imagine anyone joyously manning and yet it generated a lot of civic energy, as well as a shift in the Labour party while it was in opposition. So I wonder whether there are lessons there for how to tackle Brexit, which carries the same air of stasis and impermeability that the democratic deficit once did, with the same possibilities for an opposition prepared to take it on.

There is no ambiguity in Kennedy’s view: “Brexit is a disaster; a disaster for the law and a disaster for women. I think this is going to take us into a really terrible place.”

She is clear, too, that this is not just about transnational deals which can be patched back up by diligent minds once the dust has settled. This is a culture war. “Most lawyers are remainers, but a very few Brexiters – I could count them on three fingers – are trawled out on the media every time. It’s a Potemkin village – it’s to give you the impression that the legal world is divided. They are fundamentalists in many ways. The mad Brexiters have common things about them, almost invariably: they don’t like homosexuals, they don’t like foreigners and they hate human rights.”

The solution, however, is not clearcut: parliament alone can’t turn this on its head. We need a second vote, but if the choice were three-way – remain, Tory deal, no deal – that splits the leave vote. She is the most passionate remainer you could imagine, but scrupulously fair-minded.

“The thing we never talk about is that the EU was about dealing with fascism, and, Christ, do we need it now. But the EU would also need reform. I didn’t like Europe before. I didn’t like how they treated the Greeks. I’m a [Yanis] Varoufakis fan. I’d get on the back of his motorbike.” The human spirit within the lawyer bursts out insistently: describing the start of her career in the book, she says when the judge mistook her identity, they most often took her for the defendant’s sister. She was making a point about the incongruity, at that time, of a working-class woman from Glasgow in a court of law. Yet I can also easily imagine her treating a client like a brother.

Discussing #MeToo in the book, she describes the “wild justice” of the internet. It’s a conflicting movement for a feminist lawyer: all those decades, fighting for women to have proper redress in the courts, only for a new reality to emerge that makes its considerable impact outside the law. “Let’s think about what’s going on here: #MeToo is civil disobedience. And what is civil disobedience about? It’s about people saying: ‘The social contract’s not working for me. We’re supposed to take our grievances to the law, and the law is not delivering, so piss off.’ It’s not what we’d recommend, as believers in due process and the rule of law. And I don’t think that we can buy justice for women at the expense of men, and I do think that there will be occasions when people are called out unfairly. It’s not much different from suffragettes throwing a brick through a window: ‘We’ve had enough. You’re not listening to us; listen to this.’”

Her conclusions are inescapably pessimistic. “Equality ain’t gonna happen when you have an economic system that is about market fundamentalism, where it’s all about competition, where you have to get out there, and you’re a loser if you’re not in there. The ugliness of the world we’re in is not a good place for the creation of equality.” Yet in her rigorous tenacity, her undimmed enthusiasm for the fight, Helena Kennedy spreads the irrational buoyancy of which revolutions are made.

Eve Was Shamed is published by Chatto & Windus (£20). To order a copy for £17.20, go to guardianbookshop.com or call 0330 333 6846. Free UK p&p over £10, online orders. Phone orders min p&p of £1.99


Zoe Williams

The GuardianTramp

Related Content

Article image
Helena Kennedy | Top 100 women
Human rights lawyer who originally worked on sex-discrimination cases before setting up Doughty Street chambers

Homa Khaleeli

08, Mar, 2011 @12:05 AM

Article image
Eve Was Shamed: How British Justice Is Failing Women by Helena Kennedy review – a fiercely critical eye
In this disturbing follow-up to her groundbreaking Eve Was Framed, the emiment QC identifies the flaws in an inadequate legal system that continues to wrong women

Caroline Criado Perez

14, Oct, 2018 @6:00 AM

Article image
The Gender Recognition Act is controversial – can a path to common ground be found?
In early 2016, the government proposed changes to the law regarding self-identification – there has been furious debate ever since. But could a more nuanced conversation between gender-critical feminists and trans activists now be starting?

Gaby Hinsliff

10, May, 2018 @5:00 AM

Article image
Helena Kennedy: 'Women's struggles are not over'

Helena Kennedy QC on the huge changes she has seen in the way the law treats women, and the ongoing battle to force the police to take domestic abuse seriously

Interview by Huma Qureshi

17, Oct, 2012 @10:22 AM

Article image
The sexual assault of sleeping women: the hidden, horrifying rape crisis in our bedrooms
A recent survey suggested a shockingly high proportion of women have been sexually assaulted by a partner as they slept. Now more and more are speaking out

Anna Moore

15, Jun, 2021 @9:00 AM

Article image
If judges think women who date online ‘would have sex with anyone’, we’re really in trouble | Chitra Ramaswamy
According to the barrister Helena Kennedy, some judges have woefully outdated views. No wonder courts let women down

Chitra Ramaswamy

26, Nov, 2018 @5:54 PM

Article image
EU citizens should collect proof of living in UK, says Helena Kennedy
Lords Brexit reports: QC advises making file of documents as Lords committee she chairs calls on PM to safeguard rights of EU nationals in Britain

Anushka Asthana Political editor

14, Dec, 2016 @12:01 AM

Article image
Is removing a condom without permission rape?
A Swiss court has broadened the definition of non-consensual sex. How will this affect our understanding of where lines are drawn?

Zoe Williams

16, Jan, 2017 @6:52 PM

Article image
‘I fell between the cracks’: author Winnie M Li on how rape survivors are failed by the system
The American has turned the experience of an attack into her first novel. Here she explains why it took months for her to get support, and the ‘horrible’ experience she had to go through to get justice

Louise Tickle

31, Jul, 2017 @3:58 PM

Article image
The indecent exposure epidemic: ‘How are they not taking this seriously after Sarah Everard?’
Flashing is a sexual offence, victims say it can have a lifelong impact and experts say it can lead to escalating crimes against women. Why is the police response so often dismissive?

Sirin Kale

07, Oct, 2021 @9:00 AM