“The lack of women in our senior judiciary remains a source of embarrassment and frustration.”
As the pre-election issue goes to print, any crystal ball-gazing speculation will be dated by the time this magazine hits your desks. However, one topic close to my own feminist heart should still be relevant as we await the election results. Just how many women will take seats in the newly minted Westminster parliament? Some might see a woman at the top as evidence of a shattered glass ceiling. However, the UK’s performance on gender balance compares poorly. At 30 per cent female MPs, the last parliament lagged behind the top performers, Rwanda (61 per cent), Bolivia (53 per cent), Cuba (49 per cent) and Iceland (48 per cent): Inter-Parliamentary Union, Women in national parliaments
, 1 May 2017. The Scottish parliament fares little better, with 35 per cent women MSPs. In the rankings available in May 2017, we ranked 47th in the world for gender diversity.
In 2016, a Council of Europe report confirmed that we compare equally badly in judicial diversity. At 25 per cent, the average number of women serving in the judiciary across the jurisdictions of the UK might be broadly consistent with parliamentary numbers,1England and Wales: 30 per cent; Scotland: 23 per cent; Northern Ireland: 23 per cent.
but it lags behind the European average of 51 per cent. Only Armenia and Azerbaijan have fewer women judges (see Council of Europe, European judicial systems: efficiency and quality of justice
, CEPEJ Studies No 23, rev 1). In England and Wales, of 106 High Court judges, 22 are women; in the Court of Appeal, eight of 39 judges are female; and in the Supreme Court, of course, Baroness Hale sits alone.2Since this article was published, the 2017 statistics have been released.
While women are consistently well represented in new practitioner statistics and among law students, the lack of representation in our senior judiciary remains a source of embarrassment and frustration. Most recently, the lord chancellor – no matter what other criticism to which she might reasonably be subject – spoke up for change at the 2016 Conservative party conference: ‘Currently, only one in seven of QCs and one in three of partners in law firms are women. Fewer than one in 10 judges come from ethnic minorities. Only a quarter went to state school. This is modern Britain – we can do better than this’ (Owen Bowcott, ‘Proportion of female judges in UK among lowest in Europe
, 6 October 2016).
The homogenous nature of practice in our highest courts was starkly illustrated in screenshots from the coverage of the Supreme Court hearings in the article 50 challenge. Helen Mountfield QC stood stark as a single female figure on the counsels’ benches, mirroring Baroness Hale’s own isolation among her peers (see Rachel Jones, ‘Increasing judicial diversity – a constitutional imperative?
’, UK Const L Blog, 27 April 2017).
On 25 April, JUSTICE published its latest working party report
, Increasing judicial diversity
. A year in the making, the report is the work of a high-level working party chaired by Nathalie Lieven QC. It makes a series of proactive recommendations for achieving greater diversity on the bench, increasing the representation of both women and minority judges. From growing the pool of talent from beyond a handful of senior practitioners at the commercial bar to identifying a stronger route for career progression, the proposals are constructive and designed to modernise but not undermine what it means to be a judge in Britain today.
Most of the judges on the Supreme Court will be replaced over the next three years. The Judicial Appointments Commission has recently closed competitions for 25 appointments to the High Court and 120–140 appointments to the Circuit Bench (see Increasing judicial diversity, para 1.7). It is a rare moment of opportunity.
Ruth Bader Ginsburg was once asked when there would be ‘enough women’ on the US Supreme Court. She replied ‘when there are nine’. In considering an all-female bench, she wasn’t imagining much-feared feminist world domination. When we truly fail to notice that brilliant women might be overrepresented in our institutions, we will have achieved true equality. While 30 per cent representation in parliament and 25 per cent across the judiciary seems like desperate underperformance, nine per cent (or a single Brenda) as the statistic for our own Supreme Court is a scandal. That we are excited by the possibility that we might soon have more than one woman sitting on our highest judicial institution feels sad and lacking in ambition.
The refrain that equality takes time is tired. The oft-repeated mantra that the credibility of our judiciary should not be damaged by swapping merit for diversity is insulting. The appointment of a number of female judges to the Supreme Court and the Court of Appeal in this round of recruitment would be a good start. The implementation of the Justice recommendations would move towards building a more representative judicial community better able to preserve public confidence in our legal system.
A wholehearted supporter of the 50:50 parliament campaign, I’m hopeful but not confident that when the polls close, diversity at Westminster will continue on a frustratingly gentle upward curve. For the other crucial parts of our constitutional architecture, a simple plea for ‘more than 30 per cent’ surely can’t fall on deaf ears? In a rare admission, I agree with the lord chancellor. There is work to be done. We can do better than this.