There is a powerful case for increasing the number of women in the senior judiciary, including the particular perspective they bring to judgments, according to Baroness Hale, the Deputy President of the Supreme Court.
In a speech last week to the Law Society’s women lawyers’ division, given in honour of the former Chancery Lane president and current Lord Mayor of London, Fiona Woolf, the judge tackled head on opposition to positive discrimination, and listed steps she believed could lead to greater diversity on the bench.
The speech was made on the eve of the application – from 1 July – by the Judicial Appointments Commission of the Equality Act’s equal merits provision, which was made possible by an amendment last year to the Constitutional Reform Act 2005. It means that where two candidates for judicial office are considered to be of equal merit, the one who can improve the diversity of the judiciary can be chosen.
She observed that in 2013, fewer than a quarter of all judges in England and Wales were women. Although 40% of tribunal judges were women, the higher up the judiciary, the worse were the figures: only 16.7% of the High Court, and 11.4% of the Court of Appeal. She was the only female member of the Supreme Court.
Lady Hale described the situation as “out of step with the rest of the world”. The average gender split across judiciaries in Council of Europe countries was 52% men to 48% women. Diversity in the judiciary was a matter of democratic legitimacy and would enhance the public’s confidence in the legal system, she argued: “The public should be able to feel that the courts are their courts; that their cases are being decided and the law is being made by people like them, and not by some alien beings from another planet.”
Although she did not advocate positive discrimination herself, Lady Hale countered the argument put by her Supreme Court colleague, Lord Sumption, that it would dilute the quality of the bench by deterring the best candidates – both male and female – from applying.
“I tend to think that the judiciary would be better off without prima donnas who might not apply for such reasons,” she said, adding: “Of course we all want to be appointed on our own merits and not to make up a quota. But… having applied they should be happy to get it and give it their best shot irrespective of why they were appointed.”
She also rejected what she said was Lord Sumption’s argument that diverse courts were not better courts because they could draw on a diversity of experience, and that advances in anti-discrimination laws had been made by courts composed of white males. “That is, of course, true, if only because for the most part there were no other sorts of court,” she pointed out.
There was a “business case” for diversity, she said, admitting that she had not always agreed that women judges would make a difference. “But I have come to agree with those great women judges who think that sometimes, on occasions, we may make a difference”, she said, pointing to judgments where her gender had “made a difference to my view of the law”, such as “the nature of the damage done to a woman by an unwanted pregnancy” and “the definition of violence to include more than simply hitting people”
She observed that the male Supreme Court fitted “the stereotypical pattern of boys’ boarding school, Oxbridge college and the Inns of Court”, adding that: “All but two went to independent fee-paying schools. All went to single sex boys’ schools, all but three to boys’ boarding schools” and that “most specialised in commercial, property or planning law rather than what [Baroness] Helena Kennedy calls ‘poor folks’ law”.
She was not criticising these judges for their good fortune or success, she insisted, but suggested their educational background “brings advantages in other ways, in who you know as well as what you know, and this can smooth your path and open doors which might remain closed to others who do not have the same contacts”.
She acknowledged that the replacement of the old ‘tap on the shoulder’ system of appointing judges with applications had brought benefits, but said it was only “part of the story”. The workings of the main branches of the legal profession made it difficult for women to enter their upper reaches. The divided profession, was “one of the main reasons for the continuing lack of diversity in the higher judiciary”, she said.
The argument that top barristers were selected to be top judges because they were the best qualified for the job was an assumption “I am simply not prepared to make” and was “self-seeking and implausible”. She criticised the “lack of a proper judicial career structure”.
Lady Hale sad her solution was to tackle each of the obstacles to appointing women judges, including: “Widening recruitment to the legal profession; broadening the pool from which candidates at all levels are recruited… abandoning traditional stereotypes about who gets what sort of job; recruiting for legal ability, personal qualities and potential, rather than current experience; actively encouraging and supporting able but unusual candidates to apply; and creating a proper judicial career structure which enables judges with the potential to move onwards and upwards.”
The recipe for change was “affirmative action” but stopped short of “positive discrimination”. She agreed with those who were sceptical the equal merits provision would achieve success, because assessing comparative merit was “an inherently subjective exercise”, concluding: “There is so much room for variation in choosing, assessing and then weighting the various parameters involved in merit.”
Last week, the President of the Supreme Court, Lord Neuberger, said of diversity in the judiciary: “It is taking more time than anyone would like but if you look at appointments to the High Court in England and Wales over the past five years they are improving, but improving slowly.”