The lack of female judges is a supreme injustice

And a scandal—especially given that women lawyers have long been abundant
October 13, 2016
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Do you remember “the Supremes”? Not the great Motown girl band of the 1960s, but that classic episode of The West Wing from March 2004. It concerns a vacancy on the United States Supreme Court and the machinations that President Josiah Bartlet has to go through in order to nominate a progressive woman.

If a Bake Off-deprived BBC commissioned a new “Great British” political drama, the equivalent episode would be no less poignant. The Prime Minister meets with her new Justice Secretary—both of them women. Yes both women, and not only because the Westminster Wing would be set in a liberal fantasyland, but because that’s where real-life politics has progressed to in the age of Theresa May and Elizabeth Truss. But the anxious discussion of their screenplay equivalents concerns why the judiciary in general and Supreme Court in particular has failed to keep up. Each laments the fact that after well over a decade in our highest court—and due to retire in a few short years—Baroness Hale of Richmond remains the first and only woman. I don’t want to spoil the suspense for you, but in short they resolve that something must be done.

The stats are eye-watering by any measure. Our highest court (originally the Law Lords) welcomed the first and only woman in 2004. It subsequently “modernised” into a Supreme Court but still with only one woman out of 12 justices (8 per cent). This lags shamefully behind the position in equivalent courts overseas. On the Canadian Supreme Court, four out of eight judges are women—a ninth judge is in the process of being appointed. The Australian High Court has managed three out of seven, and New Zealand three out of six. On the French Conseil constitutionnel, it is four out of nine; and on the bench of the US Supreme Court, there are currently three women out of the current one-judge-short total of eight.

The progress of our other courts has been disappointingly sluggish as well. The Court of Appeal has edged from three in 2007 (8 per cent) to the present eight (which is still only 21 per cent); the High Court from 10 (9 per cent) to 22 (21 per cent) over the same period, and the Circuit Bench from 73 (11 per cent) to 160 (26 per cent). If this sounds like some sort of advance, recall that women have now been entering the law in Britain in numbers equal to or greater than men for decades, which—surely—ought to mean we’d be looking at real 50-50 equality.

One would hope that judges could agree on this eminently reasonable ambition, and turn their energies to figuring out how to make a reality of it. Sadly, there are many who still need persuading as to why we need more women in the judiciary at all. Both men and women have been campaigning for the greater entry and participation of women at every level of the legal system since the 19th century, and yet the basic case still has to be explained.

But every piece of research demonstrates that appointing more women as judges will bolster legitimacy and public confidence—the belief in the equity and basic fairness of the law. There are many aspects of life in which gender makes a real difference to experience, which is why diversity matters so much. Public faith in the courts is directly related to being able to relate to those who sit in judgment over us. And when judges are forced to hold powerful and sometimes hostile government and corporate institutions to account, their demographic legitimacy matters even more.

After so many years in which women have been well represented among legal practitioners, the gender imbalance among senior judges implies there is an enormous pool of talent that is missing out on appointment or promotion. The root problem lies in fuzzy and fusty assumptions and prejudices about the true nature of competence, merit and suitability for important office.

It is now over a year since the Supreme Court judge Lord Sumption’s unfortunate adventure with the Evening Standard, in which he revealed an attitude to gender equality that did him and his predominantly “brother judges” no favours. “In the history of a society like ours,” he said, “50 years is a very short time.” He pleaded that a more equally representative judiciary ought to happen “naturally,” an analysis crowned with an assertion that women barristers do not put up with the long hours of judges.

These extra-judicial remarks by a relative novice on the bench caused a storm of outrage among female and male judges and lawyers at every level. One senior legal academic told me of how she and her colleagues were planning to send the Upper Crust judge—who was parachuted straight from a lucrative practice at the bar into our highest court under a provision designed to achieve greater diversity—a horse’s head. Mercifully I knew her to be a vegetarian and therefore no real threat to either horses or chauvinists. Few members of a judiciary that prides itself on wisdom and humility are likely to utter Sumptionesque remarks in public again.

Nonetheless, the scandal of the missing women judges continues and many jurists are impatient for change. Often referred to as “the conscience of the profession,” JUSTICE is the leading all-party law reform organisation in the UK. The group has set up a working party focused on achieving a diverse judiciary, chaired by the leading public law silk Nathalie Lieven, herself an obvious candidate for senior judicial office. It brings together leading authorities from the academy, civil service, retired judiciary and legal professions as well as those with experience of achieving progressive change in other sectors. Whatever advice this pre-eminent think tank produces, it should not be ignored by judges or legislators.

This work is not before time. As Lady Hale herself has pointed out, the Supreme Court is losing half of its current justices in the next three years. The significance of the opportunity to create a gender-balanced court could be a Hollywood thriller in itself. Further, the Judicial Appointments Commission is now 10 years old. Perhaps it’s simply not equipped with the necessary powers and duties to make meaningful strides in increasing diversity. Now would seem a ripe moment to examine its remit.

Amid the great turbulence of 2016, a judiciary fit for the 21st century is more urgent and achievable than ever.