Scottish Feminist Judgments: (Re)Creating Law from the Outside In 9781509923267, 9781509923298, 9781509923281

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SCOTTISH FEMINIST JUDGMENTS An innovative collaboration between academics, practitioners, activists and artists, this timely and provocative book rewrites 16 significant Scots law cases, spanning a range of substantive topics, from a feminist perspective. Exposing power, politics and partiality, feminist judges provide alternative accounts that bring gender equity concerns to the fore, whilst remaining bound by the facts and legal authorities encountered by the original court. Paying particular attention to Scotland’s distinctive national identity, fluctuating experiences of political sovereignty, and unique legal traditions and institutions, this book contributes in a distinctive register to the emerging dialogue amongst feminist judgment projects across the globe. Its judgments address concerns not only about gender equality, but also about the interplay between gender, class, national identity and citizenship in contemporary Scotland. The book also showcases unique contributions from leading artists which, provoked by the enterprise of feminist judging, or by individual cases, offer a visceral and affective engagement with the legal. The book will be of interest to academics, practitioners and students of Scots law, policy-makers, as well as to scholars of feminist and critical theory, and law and gender, internationally.

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Scottish Feminist Judgments (Re)Creating Law from the Outside In

Edited by

Sharon Cowan Chloë Kennedy and

Vanessa E Munro

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Cowan, Sharon, editor.  |  Kennedy, Chloë, editor.  |  Munro, Vanessa, editor. Title: Scottish feminist judgments : (re)creating law from the outside in / edited by Sharon Cowan, Chloë Kennedy and Vanessa E Munro. Description: Oxford ; New York : Hart, 2019.  |  Includes bibliographical references and index. Identifiers: LCCN 2019034052 (print)  |  LCCN 2019034053 (ebook)  |  ISBN 9781509923267 (hardback)  |  ISBN 9781509923274 (EPub) Subjects: LCSH: Law—Social aspects—Scotland—Cases.  |  Women—Legal status, laws, etc.—Scotland—Cases.  |  Feminist jurisprudence. Classification: LCC KDC318 .S36 2019 (print)  |  LCC KDC318 (ebook)  |  DDC 349.411—dc23 LC record available at https://lccn.loc.gov/2019034052 LC ebook record available at https://lccn.loc.gov/2019034053 ISBN: HB: 978-1-50992-326-7 ePDF: 978-1-50992-328-1 ePub: 978-1-50992-327-4 Typeset by Compuscript Ltd, Shannon

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FOREWORD Written judgments serve a variety of purposes. They are an aspect of fair procedure – they let the losing parties know why they have lost. They communicate with the public what decisions are being made, and for what reasons. They provide a record of the law and the way in which it is applied. The judgments produced in the ­Scottish Feminist Judgments Project communicate the ideas of the writers about law and policy in a particularly engaging way. The feminist judges have themselves revisited judgments in decided cases, in a variety of ways – as a substitute member of an appellate bench, as a dissenting judge, in the role of an appellate court in cases in which no appeal was heard, and sometimes re-imagining the case as the first instance judge. This undertaking, which involves using established conventions of domestic judicial writing, invites consideration of the title of Audre Lorde’s speech: ‘The Master’s Tools Will Never Dismantle the Master’s House’.1 One might in the field of legal writing and reasoning, dispute the premise that the master (however he might be defined) has an exclusive right either to the tools or the house. If the house in this case is a legal system formed historically exclusively by white men, does it really need to be dismantled entirely? Are the foundations necessarily unsound, or can the house be altered, extended and owned and/or inhabited equitably? One might also posit the availability of a range of different, new tools. When viewed and tested by a new group of workers, the existing tools may be found to need adjustment: to be capable of improvement. One might then seek to examine whether the new tools, or the adjusted tools, or both, are as effective as, or superior to, the master’s. And what, in the context of legal practice and judgment writing, are the tools we are talking about? They surely include the various means by which lawyers and judges translate the real life stories – and there always is a story – that form the basis for legal proceedings of all sorts, into legal narratives. Does the fact that judgments have, until recently, all been written by men mean that a male voice has been woven through into the fabric of the law? If that is so, what does it mean when women judges and/or feminist judges adopt the accepted usages of judgment writing? Sandra Berns identified a dilemma for a judge who is an ‘outsider’: Either she violates expectations, or she confirms them … It goes both ways. If her decisions are seen as ordinary, conventional, mainstream, owing nothing to the presence

1 A Lorde, ‘The Master’s Tools Will Never Dismantle the Master’s House’ in A Lorde, Sister Outsider: Essays and Speeches (Trumansburg, NY, The Crossing Press, 1984).

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Foreword of otherness, she can, all too easily, come to be seen as rejecting her status as other, as assimilating, trying simply to be one of the boys. If her decisions reveal the mark of the other … she will at once confirm her position as other, as grammatically marked and critically destabilise the legitimacy of her role in decision making.2

This is a dilemma that the feminist judges have faced and negotiated in this project. There is a diversity of approach as to the extent to which they have brought the personal (and emotional) stories of the litigants to the foreground in ways that might not always occur in professional judicial writing. Although the approach of some of the feminist judges is perhaps more polemical than that of a professional judge would ever be likely to be, it is striking just how well most of the judgments work as judgments. As both legal practice and legal academia have become more specialised there has been, at least in this jurisdiction, a diminution in the contact between the practitioners of each. I personally think this is a shame. The potential for each to enrich the other should be obvious. This project engages academic writers in a task usually undertaken only by practising professional judges. Not only legal academics, but others, including ethicists, have written judgments. The audience for a judgment, while it will overlap with the audience for an academic paper or article, is not the same. A judgment carries with it the potential for enforcement – ultimately an exercise of power. The feminist judges have reflected explicitly on the process of judging, the competing voices informing their reasoning, and the processes of speaking, writing and acting as a judge. The nature and extent of their consideration of these is humbling and thought-provoking to me as a professional judge. It invites me to think in different ways not just about what I do, but how I do it. I am as stimulated by the judgments and commentaries with which I disagree as by those by which I am persuaded. Some of the issues the feminist judges have tackled are ones with which first instance courts are engaged daily, such as the sources of corroboration in cases where sexual crime is alleged. At the present time, the law as to corroboration in cases of sexual offending and domestic abuse is regularly the subject of significant judgments of the High Court of Justiciary Appeal Court. That there is need for reform in relation to similar fact evidence and the Moorov doctrine – which arise frequently in the context of sexual crime – has again been emphasised recently by Lord Pentland, the retiring chair of the Scottish Law Commission. Drury is on the agenda in the current programme of the Commission, in the context of potential reform of the law of homicide. Cases revisited in other areas of law present less obvious potential for feminist analysis, but nonetheless make for rewarding reading. In an adversarial system, arguments, authorities and other materials are only likely to feature in a judge’s reasoning if brought to her attention by the advocates in the case. The feminist judges have acted both as advocate and judge. They have

2 S

Berns, To Speak as a Judge: Difference, Voice, and Power (Brookfield, VT, Ashgate, 1999) 33, 36.

Foreword  vii formulated the lines that they wish to take in revisiting these judgments, and then written them accordingly. Critiquing and commentary by others will no doubt have performed part of the function of advocacy. Working judges on the other hand have at least two competing voices not their own formulating and promoting arguments in each case. The writers in this project have had the challenge not only of being judge, but also sometimes producing and presenting the competing arguments that inform the judgments. In some cases they have introduced materials and arguments not presented to the original court. Where they have done so, however, they have used only materials available at the time of the hearing, and arguments that formed part of contemporary philosophical or legal discourse. A particularly valuable aspect of the writing produced by the judges and commen­ tators is their potential to inspire advocates to analyse legal problems in innovative ways, and to present new and different arguments to the courts for determination. Lawyers, judges and academics and readers outside the legal community, whether or not identifying as feminists, will find much in the judgments, commentaries and personal statements to occasion reflection. The fruits of the project are all the more stimulating where the commentator offers a perspective different from that of the judge, and provides a competing analysis. The celebrated feminist scholar Professor Cynthia Enloe is on record as having said, ‘Never be the most feminist person you know. That’s not going to get you far. You need to have people around you who are differently feminist or more feminist than you are’.3 By that measure, the editors, judges and commentators who have created this work are welcome companions. Ailsa Carmichael April 2019



3 The

Guardian (6 November 2017).

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ACKNOWLEDGEMENTS We are profoundly grateful to all of those who have made the Scottish Feminist Judgments Project (FJP) possible. In that list we include, of course, those who have been involved in sister FJPs in other jurisdictions. These projects inspired us to pursue this Scottish incarnation, and provided valuable methodological frameworks on which we could draw. We are also hugely indebted to all of the judgment writers and commentators, who embraced the project with immense enthusiasm and brought an incredible pool of knowledge and insights with them. We were exceptionally fortunate to benefit from the input of a number of third-sector organisations, as well as legal practitioners, and are much indebted to the experiences and perspectives that they shared with us. Particular thanks are due to the campaigners who took part in our focus group (Rape Crisis Scotland, Scottish Women’s Aid, Shakti Women’s Aid and Scottish Trans Alliance) and to Lady Carmichael who, in addition to providing a Preface to this collection, was kind enough to speak with us about her approach to judging. We are also indebted to Natassa Philomonos for her help in navigating the archives of the Glasgow Women’s Library. We would like to express deep gratitude to Jill Kennedy-McNeill for the patience, determination and energy that she brought to all that she did to coordinate the creative contributions, curate exhibitions and drive forward the artistic aspirations of the project. We are also, of course, honoured to have been able to work with our talented artists (Jill Kennedy-McNeill, Jay Whittaker, Jo Spiller, Sofia Nakou with Becky O’Brien, Rachel Donaldson, Jess Orr and Alison Burns) and to have the opportunity to see law through their eyes as a result of those engagements. Heartfelt thanks are due to Gavin Crichton and Liz Strange of Active Inquiry, for their incredible talents in facilitating our Theatre of the Oppressed workshop with such sensitivity and vision. We are grateful also to Gail Ross, MSP, for sponsoring the Private Members’ exhibition at the Scottish Parliament, and to South Block and Mount Florida Galleries, the Glasgow Women’s Library and Lighthouse (Edinburgh’s radical bookshop) for hosting events and exhibitions. We are also thankful for the support shown by our respective universities (Edinburgh and Warwick), as well as by the Scottish law schools who have agreed to facilitate our running feminist-judging teaching events with their students. Throughout the project, we and our fellow judgment writers have benefited substantially from feedback in diverse forums, including: seminars at the Universities of Aberdeen, Dundee, Edinburgh and Stirling; a roundtable at the 2019 Annual Meeting of the Association for the Study of Law, Culture and

x Acknowledgements the Humanities in Ottawa; exhibitions at the installation of the University of Edinburgh – Ann Henderson; the first anniversary of GenderED; the University of Edinburgh College of Arts, Humanities and Social Sciences 2019 Celebration of Impact; ‘Celebrating a Centenary of Women in Law’ at the University of ­Glasgow; the 2019 Gerald Gordon Seminar on Criminal Law; lectures at the ­Scottish Public Law Group (in conjunction with the Faculty of Advocates), Crown Office and Procurator Fiscal Service; and RebLaw Scotland 2019. Thank you to all who attended and participated in those discussions. In particular, we want to thank Professor Lindsay Farmer, Dr Daniel J Carr and Professor Gillian Calder, for their careful and thoughtful comments and advice on early drafts of chapters one and two. Various aspects of the project benefited from funding from the University of Edinburgh (Innovation Initiative Grant; College of Arts, Humanities and Social Sciences Knowledge Exchange & Impact Award; School of Law Research Fund; and Official Development Assistance Grant) and the University of Warwick (Legal Research Institute; Faculty of Social Sciences Impact Support Funding), which we would like to gratefully acknowledge. This support, together with additional funds that we were able to secure from the Clark Foundation for Legal Education and the Royal Society of Edinburgh (to whom we are also grateful) have been critical to ensuring the success of the project, and in particular to enabling us to extend its reach beyond legal and academic audiences. In the final throes of this project, we were fortunate to benefit from the copy-editing skills of Marie Selwood, and we are grateful to her for her calm professionalism. We are also indebted to the editorial team at Hart Publishing, in particular Sinead Moloney who, as editorial director, was enthusiastic and encouraging about the project throughout. Finally, we are grateful to each another as feminist friends, colleagues and co-conspirators – and to our friends and families (including pets!) – for making the coordination and co-editing of this project one of the most rewarding and positive experiences of our academic careers. We hope that just as we have stood on the shoulders of the FJPs that have come before us, we can offer inspiration to the FJPs and other feminist projects still to come, to push yet further towards new and more radical frontiers. Sharon Cowan Chloë Kennedy Vanessa E Munro

CONTENTS Foreword������������������������������������������������������������������������������������������������������������������������v Acknowledgements������������������������������������������������������������������������������������������������������ ix Notes on Contributors�������������������������������������������������������������������������������������������������xv List of Diagrams�������������������������������������������������������������������������������������������������������� xxi 1. Through the Looking Glass? Feminist Praxis, Artistic Methods and Scottish Feminist Judging�������������������������������������������������������������������������������1 Sharon Cowan, Chloë Kennedy and Vanessa E Munro 2. Devolving Dictum? Legal Tradition, National Identity and Feminist Activism�����������������������������������������������������������������������������������������19 Sharon Cowan, Chloë Kennedy and Vanessa E Munro PART I CRIME, VICTIMISATION AND VIOLENCE 3.

Smith v Lees 1997 SCCR 139������������������������������������������������������������������������������39 Judgment: Ilona Cairns������������������������������������������������������������������������������������������39 Commentary: Isla Callander���������������������������������������������������������������������������������54 Reflective Statement: Ilona Cairns������������������������������������������������������������������������60

4.

McKearney v HM Advocate 2004 JC 87������������������������������������������������������������63 Judgment: Pamela Ferguson�������������������������������������������������������������������������������63 Commentary: Clare McGlynn����������������������������������������������������������������������������77 Reflective Statement: Pamela Ferguson��������������������������������������������������������������83

5.

Ruxton v Lang 1998 SCCR 1������������������������������������������������������������������������������87 Judgment: Sharon Cowan and Vanessa E Munro���������������������������������������������87 Commentary: Liz Campbell��������������������������������������������������������������������������������99 Reflective Statement: Sharon Cowan and Vanessa E Munro��������������������������104

6.

Drury v HM Advocate 2001 SLT 1013������������������������������������������������������������109 Judgment: Claire McDiarmid���������������������������������������������������������������������������109 Commentary: Juliette Casey�����������������������������������������������������������������������������121 Reflective Statement: Claire McDiarmid����������������������������������������������������������126

xii Contents PART II FAMILY, HOME AND BELONGING 7.

R & F v UK Application 35738/05 2005����������������������������������������������������������133 Judgment: Carolynn Gray���������������������������������������������������������������������������������133 Commentary: Becky Kaufmann�����������������������������������������������������������������������147 Reflective Statement: Carolynn Gray����������������������������������������������������������������151

8.

White v White 2001 SC 689�����������������������������������������������������������������������������155 Judgment: Kenneth Norrie�������������������������������������������������������������������������������155 Commentary: Rosie Harding����������������������������������������������������������������������������166 Reflective Statement: Kenneth Norrie��������������������������������������������������������������172

9.

Coyle v Coyle 2004 Fam LR 2��������������������������������������������������������������������������175 Judgment: Jane Mair������������������������������������������������������������������������������������������175 Commentary: Gillian Black������������������������������������������������������������������������������190 Reflective Statement: Jane Mair������������������������������������������������������������������������196

10. Scottish Special Housing Association v Lumsden 1984 SLT (Sh Ct ) 71������201 Judgment: Peter Robson������������������������������������������������������������������������������������201 Commentary: Alexander Latham-Gambi��������������������������������������������������������213 Reflective Statement: Peter Robson������������������������������������������������������������������218

Artists’ Statements and Illustrations between pages 222 and 223

11. Rafique v Amin 1997 SLT 1385������������������������������������������������������������������������223 Judgment: Frankie McCarthy���������������������������������������������������������������������������223 Commentary: Bonnie Holligan������������������������������������������������������������������������234 Reflective Statement: Frankie McCarthy����������������������������������������������������������238 PART III RELATIONAL DUTIES, EQUALITY AND DISCRIMINATION 12. Jex-Blake v Senatus Academicus of the University of Edinburgh (1873) 11 M 784������������������������������������������������������������������������������������������������243 Judgment: Chloë Kennedy��������������������������������������������������������������������������������243 Commentary: Stephen Bogle����������������������������������������������������������������������������257 Reflective Statement: Chloë Kennedy���������������������������������������������������������������266 13. Rainey v Greater Glasgow Health Board [1987] AC 224, HL������������������������269 Judgment: Nicole Busby������������������������������������������������������������������������������������269 Commentary: Diamond Ashiagbor�����������������������������������������������������������������282 Reflective Statement: Nicole Busby�������������������������������������������������������������������288

Contents   xiii 14. Commonwealth Oil & Gas Co Ltd v Baxter and Another [2009] CSIH 75��������������������������������������������������������������������������������������������������291 Judgment: Alice Belcher������������������������������������������������������������������������������������291 Commentary: Anindita Jaiswal������������������������������������������������������������������������305 Reflective Statement: Alice Belcher������������������������������������������������������������������309 15. Greater Glasgow Health Board v Doogan & Another [2014] UKSC 68�������������������������������������������������������������������������������������������������313 Judgment: Agomoni Ganguli-Mitra and Emily Postan����������������������������������313 Commentary: Mary Neal����������������������������������������������������������������������������������329 Reflective Statement: Agomoni Ganguli-Mitra and Emily Postan����������������334 PART IV CITIZENSHIP, CULTURE AND PROTECTION 16. Helen Johnson (AP) v IAT 2004 (P340/04), Court of Session������������������������341 Judgment: Nicola Loughran������������������������������������������������������������������������������341 Commentary: Helen Baillot������������������������������������������������������������������������������359 Reflective Statement: Nicola Loughran������������������������������������������������������������364 17. Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527�������������������������������������������������������������������������������������������������������369 Judgment: Dimitrios Kagiaros��������������������������������������������������������������������������369 Commentary: Sandy Brindley��������������������������������������������������������������������������381 Reflective Statement: Dimitrios Kagiaros��������������������������������������������������������384 18. Salvesen v Riddell [2013] UKSC 236���������������������������������������������������������������389 Judgment: Aileen McHarg and Donald Nicolson�������������������������������������������389 Commentary: Shazia Choudhry�����������������������������������������������������������������������404 Reflective Statement: Aileen McHarg and Donald Nicolson�������������������������410 Index������������������������������������������������������������������������������������������������������������������������������413

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NOTES ON CONTRIBUTORS Diamond Ashiagbor, graduate of the University of Oxford and the European University Institute Florence, is Professor of Law at the University of Kent. She researches on labour and equality law; regionalism (the European Union and the African Union); and law and development. She is a member of the Feminist Legal Studies editorial board. Helen Baillot is a Research Assistant at Queen Margaret University, and a graduate of Edinburgh and Strathclyde universities. From 2002 to 2012 she managed advice services for asylum seekers and refugees at the Scottish Refugee Council, Scotland’s leading refugee charity. Alice Belcher is a Professor of Law at the University of Dundee and a graduate of Keele, Cambridge and Manchester universities. An accountant and company director, she is a corporate governance expert and one of the very few academics who has applied a feminist approach to company law. Gillian Black, a graduate of Glasgow University and a qualified solicitor, is a Senior Lecturer in Family Law at the University of Edinburgh. Her main research interests are adult relationships, the parent–child relationship, and the significance of sexual relations in family law. Stephen Bogle is a Lecturer in Private Law at the University of Glasgow, his research interests lie in the fields of obligations, legal history and the intellectual history of Scotland during the seventeenth and eighteenth centuries. Sandy Brindley is the Chief Executive of Rape Crisis Scotland. She has been involved in a number of campaigns to change attitudes to sexual violence, and improve legal responses. Alison Burns is one of the UK’s leading composers for the community choir sector. Her songs can be heard in a variety of settings: theatre, sound installations, education and in the repertoire of many choirs. She has also written widely on inclusive and innovative community-building practice for choir leaders. Nicole Busby is Professor of Labour Law at the University of Strathclyde. Her research focuses on discrimination and inequality in work and access to justice. She has published widely in these areas. Ilona Cairns is a Lecturer at the University of Aberdeen. Her current research focuses on the regulation and reform of the law relating to sexual offences and domestic abuse in Scotland. She is particularly interested in these issues from an

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Notes on Contributors

evidential standpoint, and has several publications on the Scottish corroboration rule and sexual offences. Isla Callander is a Lecturer in Law at the University of Aberdeen and a graduate of the University of Glasgow. She researches in the area of criminal law and evidence, with a particular focus on the law of sexual offences. Liz Campbell is the inaugural Francine McNiff Chair in Criminal Jurisprudence at Monash University, Melbourne. She is a comparative, socio-legal criminal lawyer with particular research expertise in corporate crime, corruption and biometric evidence. Juliette Casey is a practising Advocate at the Bar in Scotland. She lectures on a part-time basis at the University of Edinburgh and has a particular interest in the law of homicide and defences. She has written on the topic of legal defences for battered women who kill. Sharon Cowan is the Professor of Feminist and Queer Legal Studies at Edinburgh University. She has published widely in areas relating to law, genders and sexualities; asylum and refugee studies; critical pedagogy; law and popular culture; and criminal law, particularly focusing on legal responses to sexual violence. Shazia Choudhry is a Professor of Law at Queen Mary, University of London. Her publications and research interests lie in the fields of European and UK human rights law and the interface of those fields particularly with domestic abuse and violence against women. She has also acted as Specialist Adviser to the Joint Parliamentary Committee on Human Rights Inquiry into Violence against Women (2014–15) and as an expert for the European Commission, for the Council of Europe, and for the UNFPA on the issue of violence against women. Rachel Donaldson, a graduate of Edinburgh College of Art, is an illustrator whose work is concerned with her interest in people and human behaviour. By focusing on social commentary and gestural characters, she explores this connection through clear drawing, collage and print work. Carolynn Gray, a graduate of the universities of Strathclyde and Glasgow, is Senior Lecturer in Law and Law Subject Lead at the University of the West of Scotland. Carolynn writes and researches in subjects where the law intersects with the body, and has a particular interest in LGBTQI+ rights. Agomoni Ganguli-Mitra is a bioethicist and Chancellor’s Fellow at the University of Edinburgh School of Law. Her research focuses on global ethics and gender justice in health, with particular focus on vulnerability, exploitation, structural and epistemic injustice. Pamela Ferguson was appointed to the Chair in Scots Law at the University of Dundee in 1999. Her research interests include criminal law, evidence and procedure. Her many publications include Scots Criminal Law: A Critical Analysis, which she co-authors with Dr Claire McDiarmid.

Notes on Contributors  xvii Bonnie Holligan is a Lecturer in Property Law at the University of Sussex and a graduate of the University of Edinburgh. Her teaching and research considers property law from a variety of comparative and theoretical perspectives, with a focus on relational and ecocentric approaches. Rosie Harding LLB (Edinburgh), LLM (Keele), PhD (Kent) is Professor of Law and Society at the University of Birmingham. She has published widely in feminist and socio-legal studies. Her research focuses on law in everyday life and the regulation of intimate and caring relationships in disability, family and healthcare law. Anindita Jaiswal is a PhD researcher in Corporate Law at the University of Edinburgh. Her thesis focuses on gender diversity in corporate boardrooms with emphasis from a regulatory standpoint, more particularly in India. Prior to this, she worked extensively on company law and corporate governance matters with a top-tier law firm in India. Dimitrios Kagiaros is a Lecturer in Law at the University of Exeter. He previously taught on constitutional law, administrative law and human rights law courses at the University of Edinburgh. His research interests include the impact of the European sovereign debt crisis on human rights and the case law of the European Court of Human Rights in relation to Freedom of Expression. Becky Kaufmann is the Justice Policy Officer for the Scottish Trans Alliance. She has worked in the justice sector for more than 25 years. Her work focuses on engagement with justice practitioners to promote human rights and equality for trans people whether they are victims, witnesses or accused of crimes. Chloë Kennedy is a Senior Lecturer in the Law School at the University of Edinburgh. Her research is interdisciplinary, historically informed and often centres on criminal law, law and religion, and law and gender. Alexander Latham-Gambi is a Lecturer in Law at Swansea University. His research interests are in legal and political theory, and he has also published on the relevance of human rights principles in housing law. Prior to becoming an academic he worked as a housing law adviser with the charity Shelter. Nicola Loughran is a graduate of Strathclyde and Cambridge universities, and Principal Solicitor of Loughran and Co Solicitors, Glasgow. She has practised asylum and immigration law for 18 years with a particular interest in gender and the Refugee Convention, on which she has lectured at Glasgow and Edinburgh University Law Schools. Jane Mair is Professor of Private Law at the University of Glasgow. Her work focuses on legal persons and legal relationships, in the family and in the workplace, with a particular interest in the gendered interaction between both domains. Frankie McCarthy is a Senior Lecturer in Private Law at the University of Glasgow. She has published on a range of topics in property law and theory, family law and theory, and the human rights aspects of both.

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Notes on Contributors

Claire McDiarmid is a Reader in law at the University of Strathclyde, Glasgow, and the Head of the Law School. She has published extensively on legal responses to children who offend, and on criminal law more generally, drawing on feminist approaches. Clare McGlynn is a Professor of Law at Durham University. She has over 20 years’ experience influencing and shaping law reform, particularly in the fields of pornography, image-based sexual abuse (including ‘revenge pornography’) and sexual violence. Aileen McHarg is Professor of Public Law at the University of Strathclyde. She previously worked at Bristol and Glasgow universities and is a graduate of Edinburgh University. She is an expert on UK and Scots public law and has published extensively on devolution in Scotland. Jill Kennedy-McNeill, a graduate of Glasgow School of Art, London College of Fashion and Chelsea College of Arts, is a multidisciplinary artist and educator. Working predominantly with textiles, she produces site-specific installations and soft sculpture. As well as exhibiting across the UK, she teaches textiles, construction skills and design at several colleges across London, and heads up the Future Textiles project in association with the Prince’s Foundation. Vanessa E Munro, a graduate of Glasgow University, is Professor of Law at the University of Warwick. She has published extensively on feminist legal and political theory, with a particular interest in the law’s regulation of women’s agency and embodiment. Sofia Nakou is a theatre director and drama facilitator who is currently doing an interdisciplinary PhD in Law and Theatre. In the last few years the focus of her work has been on creating art and theatrical projects with people in crisis, such as refugee and homeless communities. Mary Neal is Senior Lecturer at the University of Strathclyde. She publishes widely in the fields of healthcare law and ethics and legal theory, and her recent and forthcoming work focuses on conscientious objection, the nature of the professional/ patient relationship, human dignity, and vulnerability/the emotions. Donald Nicolson is a Professor and Director of the Law Clinic at the University of Essex. He studied at the universities of Cape Town and Cambridge. He has published on lawyers’ ethics, clinical legal education, affirmative action, evidence, adjudication and criminal law, with specific reference to issues of gender and feminist theory. Kenneth Norrie is presently a Professor at the University of Strathclyde. He was previously at Aberdeen and Dundee universities, and has held visiting positions in Germany, Austria, South Africa, Australia and New Zealand. He is a family lawyer, with primary interests in child protection and same-sex relationships.

Notes on Contributors  xix Becky O’Brien is an Irish dance artist whose work explores gender, identity and sexuality, with a queer/feminist approach. She uses her body as a political force to question the construction of identity and where her female body lies in relation to art and to society. Jess Orr is a PhD student in Contemporary Literature and a workshop facilitator for the charity Open Book. She has worked for a range of literature organisations including the Edinburgh International Book Festival and recently helped to establish the first festival of Scottish women’s writing at the Glasgow Women’s Library. Emily Postan is an Early Career Fellow in Bioethics at the University of Edinburgh. Her interdisciplinary research focuses on the ethical significance of identity, narrative and embodiment in a number of areas, including the governance of genetic and neurological data, reproductive technologies, and participation in health research. Peter Robson LLB (St Andrews), PhD (Strathclyde), is a Solicitor, a Judge in HM Courts and Tribunals Service, and Professor of Social Welfare Law at the School of Law, University of Strathclyde. His most recent publications include Residential Tenancies (2019); Developments in Revenge, Justice and Rape in the Cinema (2019); Ethnicity, Gender and Diversity: Law and Justice on TV (2018); and Spaces of Justice: The Architecture of the Scottish Court (2018). Jo Spiller is an Edinburgh-based photographer, and MScR student at the University of Edinburgh. The portraits she has taken for this project reflect a theme of her Master’s research around the conventions of representation and memorialising of women that she has challenged through the medium of photography. Jay Whittaker’s debut poetry collection Wristwatch (Cinnamon Press) was named Scottish Poetry Book of 2018 by the Saltire Society. In the poems written for this project, she created a found poem from the original judgment, juxtaposed with a response to the institutional writers and two meditations on the victim’s absence.

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1 Through the Looking Glass? Feminist Praxis, Artistic Methods and Scottish Feminist Judging SHARON COWAN, CHLOË KENNEDY AND VANESSA E MUNRO It really is possible to see things – even the most concrete things – simultaneously yet differently; and that ‘seeing simultaneously yet differently’ is more easily done by two people than one, but one person can get the hang of it with time and effort.1

In recent years, feminist judgments projects (FJPs) have flourished in a range of jurisdictions across the globe. These have generated powerful critical insights into the content and operation of national laws and legal institutions. Importantly, moreover, they have each contributed in distinctive and insightful ways to a lively and ongoing international conversation about women’s absence from, and unequal treatment within, the law. Taking on the judicial mantle, feminists who have contributed to these projects have set out to reimagine and recreate the law from the outside in, unmasking the choices that judges make when applying the law, and offering alternative visions of what would have been possible, even while bound by the conventions of precedent, state of knowledge, and structures of judicial decision-making that existed at the time of the original judgment. In so doing, FJPs – in all their diversity – have highlighted not only the maleness of legal concepts and norms, practices and methods, but also a particular kind of injustice that Miranda Fricker in 2007 termed ‘epistemic injustice’ whereby women’s voices, narratives and ways of knowing are systematically silenced or marginalised.2 The enterprise of conscious and collective feminist judgment-writing began with the Women’s Court of Canada, which, in 2006, reinterpreted six Charter of Rights and Freedom section 15 equality cases.3 Since then, feminist judges have 1 P Williams, The Alchemy of Race and Rights (Cambridge, MA, Harvard University Press, 1991) 150. 2 M Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford, Oxford University Press, 2007). 3 D Majury, ‘Introducing the Women’s Court of Canada’ (2006) 18 Canadian Journal of Women and the Law 1. In fact, the first published rewriting project seems to be the US constitutional decision of the so-called ‘Balkin Court’, which rewrote the 1954 case of Brown v Board of Education: J Balkin (ed),

2  Sharon Cowan, Chloë Kennedy and Vanessa E Munro been ‘righting and rewriting’ law in many jurisdictions: England and Wales, Northern/Ireland, Australia, New Zealand, the United States and, most recently, Africa and India. The project conducted in England and Wales, published in 2010, was broader in scope and larger in scale than its Canadian forerunner. Bringing together feminist judges and commentators over a series of workshops, 26 cases – clustered around core themes of parenting, property and markets, criminal law and evidence, public law and equality – were reimagined.4 The Australian project, modelled on the English and Welsh, included 24 cases, with input from academics, practitioners and activists, extending to judgments on tax and environmental law, as well as more familiar feminist concerns around family, gender-based violence, and equality law. Importantly, recognising that a focus on doctrinal law can exclude indigenous sources and perspectives, this project also included contributions from three indigenous scholars, one of whom went beyond the conventional constraints of FJPs to imagine a 1934 decision issued by a future court in 2035. An additional element of the Australian FJP was a series of interviews with judges across Australia who identified as feminist which explored their approaches to, and experiences of, judging.5 The complexities of the relationship between feminist judging and jurisdictional, cultural and historical specificities have been foregrounded in different ways in the Northern/Irish and New Zealand projects, both of which were published in 2017. In the New Zealand project, these complexities are reflected from the outset in the title of its edited collection, Te Rino: A Two-Stranded Rope.6 In this, Elisabeth McDonald and her co-editors develop feminist perspectives on law in a way that is more inclusive of issues relating to mana wahine (Maori women) who make up 15 per cent of the population in Aotearoa (New Zealand).7 With six of the 19 judgments being mana wahine (and these pages being darker in colour than the rest of the book), the editors gave careful thought to the impact of historically white, colonial, patriarchal laws on New Zealand’s indigenous communities, and to crafting methods for what is essentially a blended, intersectional project built on feminist friendships and partnerships. Where appropriate, judges were also encouraged to try to gain access to case files relating to the original decision, in order to shed light on what evidence was available to judges at the time. Reflecting on the New Zealand project, Aoife O’Donoghue – who was a coordinator of its What Brown v Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite A ­ merica’s Landmark Civil Rights Decision (New York, New York University Press, 2002). This volume was closely followed by another, edited also by Balkin, focusing on the abortion case Roe v Wade 410 US 113 (1973): J Balkin (ed), What Roe v Wade Should have Said: The Nation’s Top Legal Experts Rewrite ­America’s Most Controversial Decision (New York, New York University Press, 2005). 4 R Hunter, C McGlynn and E Rackley, Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing, 2010). 5 H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford, Hart Publishing, 2014). 6 E McDonald, R Powell, M Stephens and R Hunter (eds), Feminist Judgments of Aotearoa New Zealand: Te Rino: A Two-Stranded Rope (Oxford, Hart Publishing, 2017). 7 ibid 29.

Through the Looking Glass?   3 broadly contemporaneous Northern/Irish counterpart – discusses how it offered a vital opportunity to think about what a genuinely inclusive intersectional project looks like.8 This ambition was also close to the heart of the Northern/Irish project, which had to navigate the differences between Northern Irish and Irish judicial identities – and approaches to legal interpretation – which were shaped by colonial activity on the island, as well as continued religious and nationalist struggles.9 Feminist endeavours to bring a gender lens to judging are also now taking place in the United States, where more than 100 feminist academics have come together. Thus far they have rewritten 25 Supreme Court judgments,10 and there are plans for a further seven volumes across a range of areas.11 Meanwhile, in the global south, there are FJPs underway in Africa (which will bring together academics and practitioners in East and South Africa) and India (which involves 75 scholars, including participants from non-legal disciplines such as sociology, history and political science).12 Projects that span such large territories, with a wide range of legal, political and cultural issues, and a history of colonial violence, bring their own challenges, not least the practical ones of connecting dispersed participants and ensuring access to materials. Thus, every FJP is distinct. Each seeks to make its own imprint on the surrounding national legal terrain taking account of its own jurisdictional specificities, including issues relating to socio-political context, national identity, racialisation, class and colonialism. But, importantly, FJPs do not exist independently of each other. As a collective enterprise, FJPs transcend their jurisdictional confines, offering a powerful and sustained critique of the gender norms and stereotypes that underpin the exclusionary practices and legacies of legal adjudication across the globe, at national and supranational levels.13 They are therefore necessarily woven together in an intricate dialogue. In May 2017, we set out to ensure that Scottish voices could contribute to that collaborative, creative and productively conflictual conversation, and to provide powerful tools for public, professional, academic and student engagement, by offering alternative, creative methods of legal writing, reasoning and interpreting Scots law.

8 A O’Donoghue, ‘Book Review: Feminist Judgments of Aotearoa New Zealand Te Rino: A TwoStranded Rope (2019) Social and Legal Studies, available at: doi.org/10.1177/0964663918822415. 9 M Enright, J McCandless and A O’Donoghue, Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Oxford, Hart Publishing, 2017). 10 K Stanchi, L Berger and B Crawford, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge, Cambridge University Press, 2016). 11 See: sites.temple.edu/usfeministjudgments/projects. 12 See: socialandlegalstudies.wordpress.com/2018/11/21/feminist-judging-margin-centre/#more-456. 13 The FJP model has also spawned other ‘critical’ judgments projects and edited collections such as: L Hodson and T Lavers (eds), Feminist Judgements in International Law (Oxford, Hart Publishing, 2019); SW Smith, J Coggon, C Hobson, R Huxtable, S McGuinness, J Miola and M Neal (eds), Ethical Judgments: Rewriting Medical Law (Oxford, Hart Publishing, 2017); H Stalford, K Hollingsworth and S Gilmore (eds), Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Oxford, Hart Publishing, 2017).

4  Sharon Cowan, Chloë Kennedy and Vanessa E Munro

Doing Feminist Judgments: Methods and Praxis At a meeting of representatives from pre-existing, ongoing and new FJPs in Oñati in May 2017, colleagues suggested a range of methods for recruiting feminist judges, including having organisers choose key legal cases and issue a call for papers based around them. This method may make sense in large jurisdictions, such as the United States, where there is a long list of cases that could be reworked through a feminist lens, and the challenge is one of limiting the project’s scope. However, since Scotland is a small jurisdiction, this was not the right approach for us; given the small pool of potential feminist judges, it was unlikely that there would be enough suitably equipped individuals available to rewrite the judgments that we might choose. We were also convinced that a ‘bottom-up’ approach, where, in discussion with all the project members, judges were able to choose their own cases (so long as they originated in Scotland), would make the project more participatory. For these reasons, we decided to reach out to those we knew with Scottish legal knowledge and experience, who were interested in law and gender, and gauge interest in involvement before deciding which cases to focus on. This was a relatively small group which, in turn, means that we present here fewer judgments than some previous FJPs – 16 in total, with 19 judgment writers and 16 commentators, including five men. While recognising the limits of snowballing as a method of inclusion,14 we tried to prioritise diversity throughout the project. We were, unfortunately, somewhat constrained in our ability to do so given that university and legal professional communities in Scotland remain predominantly white, cisgender, middle-class and able-bodied. Nevertheless, we have been able to curate judgments that span a diverse range of topics, applying substantive and methodological feminist interventions to produce more progressive decisions and/or reasoning. In line with other FJPs, this collection includes rewritten feminist judgments alongside commentaries from experts. Commentators were added incrementally and organically, as those with relevant expertise and availability were identified. They include academics (at different career stages), as well as members of the legal profession and representatives from third-sector organisations in Scotland. As discussed in the next chapter, various third-sector representatives also participated in a focus group discussion with the editors about the historical and contemporary triumphs of, and challenges for, feminist activism in Scotland. This discussion helped us to contextualise and support our understanding of what was distinctly Scottish about our project, and the socio-political climate in which it arises. In this FJP, we felt it was important that from an early stage judges and commentators were engaged in a dialogue about the legal issues arising from each 14 G Anzaldúa (ed), Making Face, Making Soul: Creative and Critical Perspectives by Women of Colour (San Francisco, CA, Aunt Lute Books, 1990) 44–45, cited in K Kishimoto and M Mwangi, ‘Critiquing the Rhetoric of “Safety” in Feminist Pedagogy: Women of Colour Offering an Account of Ourselves’ (2009) 19 Feminist Teacher 87, 97.

Through the Looking Glass?   5 case, as well as the surrounding social and political environment. Attendance at all workshops was, therefore, strongly encouraged. At our first meeting, judges and commentators came together to debate the foundational issues that a project of this kind would need to address: questions about objectives, methods, format, judgment crafting and – of course – what we meant by feminist judging. These are challenging questions, which previous FJPs have also had to confront and address in their own distinctive ways. Since there is no one feminist approach, it was inevitable that our project would encompass a range of diverse perspectives. Indeed, this was something we proactively encouraged amongst contributors and, as the project evolved, the issue was revisited iteratively through workshop discussions and editorial dialogue with judges and commentators. A spectrum of feminist approaches to long-standing debates, including formal versus substantive equality and how to resolve competing rights claims, are reflected in this collection. Thus, for example, in White v White (2001 SC 689), we see a sharp distinction between the gender-neutral, formal equality approach of Judge Norrie and the substantive equality analysis adopted by Rosie Harding as commentator. In Greater Glasgow Health Board v Doogan ([2014] UKSC 68), we see our judges, writing in a conjoined identity as Lady Ganguli-Postan, in disagreement with commentator, Mary Neal, regarding the weight that ought to be given to the conflicting rights of those accessing abortion services and those conscientiously objecting to providing them. Meanwhile, in Commonwealth Oil & Gas Co Ltd v Baxter ([2009] CSIH 75), while Lady Belcher and commentator Anindita Jaiswal both acknowledge the benefits of a more relational interpretation of directors’ duties, they disagree on the ramifications of doing so. Constructive debate also arose at various stages regarding how much the project should try to subvert conventional modes of legal judgment-writing. It was accepted, of course, that contributors should push the boundaries of form and content to reflect our feminist and critical perspectives, since traditional legal methods and techniques function both to exclude gender but also to (re)produce problematic gender norms. Resisting these traditions requires us to interrogate the very structures of legal thought and procedure.15 At the same time, however, since the Scottish judicial landscape is still largely conservative, we felt that being overly experimental with the form of the rewritten judgments could risk the project’s insights being dismissed by legal scholars, professionals, students and others, as merely ‘utopian’, thereby reducing their ultimate impact.16 As