In 2009, when asked by the then Lord Chancellor to look at judicial diversity, Baroness Neuberger said:
“Judges drawn from a wide range of backgrounds and life experiences will bring varying perspectives to bear on critical legal issues. A judiciary which is more visibly reflective of society will enhance public confidence.”
Although it would appear that even 6 years later, not a lot has changed. Let’s take a look at the diversity (or lack of) figures of the UK judiciary in 2014, compared with 2 years previously (when this article was originally written). The most recent statistics currently show:
- in England and Wales 24.5% of the judiciary are women – only Azerbaijan, Scotland and Armenia have fewer women judges – and this number has only increased by 1.5% in two years;
- 19.4% of high court judges are women – an increase of less than 4% on 2013 – and 5.8% are from a BME background;
- 21% of Court of Appeal judges are women – an increase of almost 11% on 2013 – and there are still none with an ethnic background
For decades women have been entering the legal profession in greater numbers and according to the latest figures from the Law Society:
- 61.5% of trainee solicitors are women – down from 63.5% two years previously;
- 48.6% of solicitors on the roll are women compared with 46.7% two years previously; and
- 13.5% are from BME groups – an increase of 1.6% in the past 2 years.
Additionally, in 2013 women comprised 61% of the total of Practising Certificate holders aged 35 and under.
The figures for the Bar are quite similar, showing that in 2012 60% of practicing barristers were women. The Bar Council have been taking measures however to increase diversity within the Bar profession. Their “Ethical Enquiries Helpline” handled 6,137 inquiries in 2013/14 and they also set up an “Equality and Diversity Support Helpline” to help identify and tackle issues from harassment to monitoring unassigned work and flexible working.
In 2006 a “record number” of women were appointed as QCs under the then-new system of appointment (68 applied and 33 succeeded (18.7%) out of 176 appointed). In 2013 26 women applied and 14 succeeded (16.7%) out of 84 appointed.
That last figure is significant: traditionally the senior judiciary is drawn from the senior levels of the Bar. There is more diversity at lower levels of the judiciary, the Supreme Court remaining the least diverse level.
A few days before the Supreme Court announced in 2013 that three vacant spaces in the Supreme Court judiciary would be filled by white male judges (Lord Justices Toulson, Hughes and Lord Hodge) the lone female Supreme Court judge, Baroness Hale, said this (in her Kuttan Menon memorial lecture):
“Where I respectfully disagree (as we judges say) with Lord Sumption is in his belief that we will not make quicker progress (if it would be progress) without some measure of positive discrimination, which he thinks would be a bad thing.”
Of course, very special arrangements indeed were made to elevate Lord Sumption to the Supreme Court directly from the Bar without him having previously served as a full-time judge. Was that not a positive discrimination of sorts? Going the extra mile for an exceptional candidate who didn’t fit all of the usual criteria?
What are the reasons why true diversity and equality continues to evade solicitors’ firms, the judiciary and the Bar? I can do no better than suggest reading Baroness Hale’s eloquent and informative speech and summarise some reasons she identified:
- She identified the “uncomfortable truth” that many top judges come from similar educational and professional backgrounds.
- Our judiciary is better paid than almost any other judiciary in Europe – the countries in which there are higher proportions of women judges have a judiciary with lower pay and status.
- That commentators, lawyers, judiciary and politicians have long identified the problem of lack of diversity in the judiciary and as long ago as 1992 the then Lord Chief Justice, Lord Taylor, acknowledged the need for change and an anticipation that talented women would “trickle up”.
- On the past judicial selection system of a “tap on the shoulder” Baroness Hale quotes Lord Sumption: “it would be foolish to pretend that they were not occasionally influenced by unconscious stereotyping and by perceptions of ability moulded by their own personal experiences” adding “ I would merely drop the ‘occasionally’”.
And then there is the issue of work/life balance, both in practice and the judiciary. Baroness Hale says: “If the Bar were really serious about helping young women to stay in independent practice, it would have done more to support the project to set up a Bar nursery.” She highlights the impact of the structure of the judiciary, the different judicial branches the Bar and solicitors tend to be represented in and the working arrangements before concluding: “some features of the judicial life are likely to deter some very able candidates from applying.”
So, there’s been a lot of talk, numerous reports, changes to the selection process, an increasing number of women entering the solicitor branch of the profession in particular, but where’s the progress? In my view this is all tinkering around the edges. The perception that the best judges will come from the senior Bar needs to be challenged; Baroness Hale, while a barrister, has a background largely as an academic. There are many talented women in the solicitors’ branch of the profession who may not have followed the traditional judicial path but would nonetheless be excellent judges. Flexible working needs to be not just talked about but put into effect at all levels of the judiciary: the route of High Court judge then upwards in the traditional judicial career path presents an immediate obstacle for many women (and men) with family commitments with the possibility of circuit sitting and lengthy periods of time away from home. Without some radical rethinking, it’s inevitable that the future judiciary will continue to be selected in the image of the current judiciary and won’t reflect society as a whole any time soon.