The presence of women in the British judiciary
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The presence of women in the British judiciary
Kate Malleson
Queen Mary, University of London
Paper presented at ‘The Judges is a Woman: Cogitations about the reality of and the
justifications for gender diversity on the Bench’
Université Libre de Bruxelles
7 and 8 November 2013
One of the most striking features of the subject of women in the judiciary in England and
Wales is the gap between the amount of time, energy and debate which it has attracted
and the progress made in increasing the participation of women on the bench.
The list below sets out the principal official interventions, reports and enquiries on the
subject of judicial diversity which have been produced over the last 15 years:
Sir Leonard Peach, Independent Scrutiny of the Appointment Processes of
Judges and Queen's Counsel 1999
Inter-Agency Working Group, Report on the Appointment to Judicial Office of
Crown Prosecution Service, GLS and other Departmental Prosecutors, 2002
Sir Colin Campbell, Judicial Appointments Commission Annual Report, 2003
Department for Constitutional Affairs, Constitutional Reform: A new way of
appointing judges, 2003
Department of Constitutional Affairs, Assessment Centres for Judicial Diversity
(written by Professor Geraldine Healy), 2006
Judicial Appointments Commission, Selecting on Merit and Encouraging
Diversity 2007
Judicial Executive Board Report on Attractiveness of Senior Judicial
Appointments (written by Professor Hazel Genn), 2008
Judicial Office, Report on the Lord Chief Justice’s Conference on Judicial
Diversity, 2009
Cabinet Office, Unleashing Aspiration: Final Report of the Panel on Fair Access
to the Professions, 2009
Judicial Appointments Commission, Barriers to Application for Judicial, 2009
Baroness Neuberger, Report of the Advisory Panel on Judicial Diversity, 2010
House of Lords Constitution Committee, Report on Inquiry into Judicial
Appointments, 2012
Judicial Diversity Taskforce, Annual reports, 2010, 2011, 2012, 2013
I’m grateful to Professor Erika Rackley for the data on which the graphs in this paper are based.
Although the title of this paper refers to the British Judiciary, most of what follows relates to the
judiciary in about England and Wales rather than the judiciaries of Scotland and Northern Ireland
which are distinct and separate jurisdictions.I could have produced an even longer list of academic work, non-governmental reports,
lectures, talks, seminars, newspaper articles, radio programmes, blog entries and the
like. This discourse has generated an array of proposals for reform many of which have
been implemented. Some have involved fundamental institutional reform, others have
addressed more detailed changes in process or practice.
The highest level structural change was instituted in 2005 as a result of the
Constitutional Reform Act which brought about a root and branch reform of the judicial
appointments process involving the creation of two judicial appointments commissions,
one for England and Wales (Scotland and NI already having established such bodies)
and one for the new UK Supreme Court. The slow progress on diversity in the
composition of the judiciary was a key factor in the creation of this new system and was
reflected in the fact that the judicial appointments commission of England and Wales
(JAC) was placed under the following statutory duty to encourage diversity:
The Commission, in performing its functions under this Part, must have regard to the
need to encourage diversity in the range of persons available for selection for
appointments. 1
The new JAC included lay members and instituted completely new selection processes,
including job interviews and formal testing of candidates in assessment centres. This
reform juggernaut did not end with the 2005 reforms. In 2009, the continuing slow
progress led to the establishment of the Advisory Panel on Judicial Diversity, chaired by
Baroness Neuberger. Its report, published in 2010, contained 53 recommendations, one
of which was that a Judicial Diversity Taskforce should be set up to oversee
implementation of the Panel’s recommendations, comprising the Ministry of Justice,
senior lawyers, members of the judiciary and the Judicial Appointments Commission.2
This Taskforce has reported four times to date and many of the Advisory Panel’s
recommendations have been implemented. These included introducing or extending job
shadowing, mentoring, flexible working arrangements, outreach programmes, new
judicial eligibility rules, the creation of diversity networks and diversity officers, annual
reports on progress, improved data recording and sharing, greater transparency in the
appointments process and ‘myth-busting campaigns’.3
The 2013 annual report of the Taskforce stressed the strong consensus around the need
for greater diversity, with the following comments from leading stakeholders:
‘Diversity is so important to retaining the public’s confident and trust in the justice
system and I am passionate about the need to achieve real and visible change in
this area’
Helen Grant MP, Parliamentary Under-Secretary of State, Ministry of Justice
‘I wholeheartedly support the work of Baroness Neuberger and her Panel’
1
S. 64 Constitutional Reform Act 2005
2
http://www.judiciary.gov.uk/publications-and-reports/reports/diversity/advisory-panel-
recommendations
3
For full details, see Judicial Diversity Taskforce Annual Report 2013 at
https://www.gov.uk/government/publications/improving-judicial-diversity-judicial-diversity-
taskforce-annual-report-2013Maura McGowan QC, Chairman of the General Council of the Bar
‘Everyone at CILEx is passionate about diversity’
Stephen Gowland, the President of The Chartered Institute of Legal Executives
‘I wholeheartedly believe in the need for our judges to reflect the communities which
they serve’
Nick Fluck, the President of the Law Society
‘A judiciary which is more reflective of society will increase public confidence in the
often life-changing decisions being made in courts and tribunals. Therefore the work
of this Taskforce is crucial.’
Christopher Stephens, Chairman of the judicial appointments commission
What has all this activity and all this ‘passionate’ and ‘wholehearted’ support for change
achieved in terms of women’s participation in the judiciary? The following table sets out
the picture over the last forty years:
Percentage of women in the judiciary in
England and Wales
100
95
90
85
80
75
70
65 supreme court
60
percentage
55 court of appeal
50 high court
45
40 Circuit court
35 District judges
30
25
20
15
10
5
0
1970 1975 1980 1985 1990 1995 2000 2005 2010 2015
date
The figures show that the increase in the participation of women correlates to the
beginning of the more widespread acknowledgment of the problem in the 1990s. But italso shows that progress has been slow and that over the last 20 years almost all the
significant increase has been in the lower ranks. The judiciary remains largely white,
male and upper middle class and it becomes paler, maler and more socially advantaged
the higher up you go. In 2011, a report by the Equality and Human Rights Commission
on women’s participation in institutions of power concluded that at current rates of
progress it would take another 45 years to achieve an equal number of women and man
in the senior judiciary.4
What is also noticeable is that as the consensus in support of greater diversity in the
judiciary has grown stronger the ambition, in terms of the future rate of progress, has
grown weaker. In 1992, Lord Taylor, then Lord Chief Justice, stated that:
The present imbalance between male and female, white and black in the judiciary is
obvious ... I have no doubt that the balance will be redressed in the next few years ...
Within five years I would expect to see a substantial number of appointments from
both these groups. This is not just a pious hope. It will be monitored.5
Lord Justice Auld, in his 2001 report on the criminal courts, similarly urged the (then)
Lord Chancellor's Department proactively to adapt to the needs and working
arrangements of all lawyers in order to ensure diversity on the bench: ‘It is not enough to
wait for the professions to present the Lord Chancellor's Department with suitably
‘visible’ as well as qualified candidates for appointment.’6
More recently, however, the judicial tone has shifted with less sense of urgency and
more stress being placed on the importance of ‘identity-blind impartiality’. Igor Judge,
Lord Chief Justice until his retirement in 2013, played down the significance of diversity
at a conference on ‘Equality in Justice’ in 2008:
But however you draw up the list [of judicial qualities] gender, colour of your skin,
religious belief, and social origins are all utterly irrelevant. It is you who is the judge.
It is you who carries the responsibilities and burdens, and I suggest to you it is
perfectly obvious that background, ethnicity, religion, sexuality and gender are utterly
irrelevant to the ability of an individual to be a good judge, and therefore they are
utterly irrelevant to the selection and appointment of any judge. (emphasis added).7
In 2012 Lord Sumption, a recently appointed Supreme Court Justice and former member
of the judicial appointments commission, gave a lecture arguing that expectations of
change in the composition of the judiciary had been unrealistic and stressing that
although change will come, it will take, at a guess, fifty years to achieve a fully diverse
judiciary.8 Rejecting any form of positive action he concluded that we may simply have to
wait another two generations:
4
http://www.equalityhumanrights.com/key-projects/sexandpower/
5
Lord Taylor, The Judiciary in the Nineties (London, The Richard Dimbleby Lecture, 1992) 9.
6
Lord Justice Auld, Review of the Criminal Courts of England and Wales (London, Lord
Chancellor's Department, September 2001) Para 84.
7
Speech by Lord Judge, Lord Chief Justice of England and Wales ‘Equality in Justice Day’ Royal
Courts of Justice, London 24 October 2008. P. 3.
8
http://www.supremecourt.gov.uk/docs/speech-121115-lord-sumption.pdfIn this area, as in life generally, we just cannot have everything that we want. We
have to make choices and to accept impure compromises. We may even have to
learn patience (p.14)
The 2010 report of the Advisory Panel on Judicial Diversity was a little less bleak in its
hope that within a decade, by 2020, there should be a ‘much more diverse judiciary
at all levels’. However, compared to Lord Taylor’s 1992 commitment to substantial
change within five years, at a time when the proportion of women in the legal profession
was far lower than it was in 2010, the Advisory Panel’s vision is strikingly limited.
So what is the explanation for the failure of those early hopes and expectations? Forty
years ago, when women first entered the legal profession in large numbers it was
expected that they would ‘trickle up’ to the upper ranks of the profession and into the
judiciary. This was an understandable hope give the astonishing progress that women
have made in the legal profession:
Percentage of women entering the legal
profession in England and Wales
100
95 women called to the
90 Bar
85
80 women admitted as
75 Solicitors
70
65
percentage
60
55
50
45
40
35
30
25
20
15
10
5
0
1970 1975 1980 1985 1990 1995 2000 2005 2010
date
What these figure do not tell us is that very few of these women entering the legal
profession in such large numbers make it into to the recruitment pool from which senior
judges are chosen. That pool is composed of senior barristers, those who are appointed
Queen’s Counsel:Percentage of women Queen's Counsel at
the self employed Bar in England and
100
95 Wales
90
85
80
75
70
65
percentage
60
55
50
45
40
35
30
25
20
15
10
5
0
1970 1975 1980 1985 1990 1995 2000 2005 2010
date
It is generally barristers from this elite group of QCs who are appointed as part-time fee
paid judges Bar (Recorders and Deputy High Court judges) who sit in court for short
periods while continuing their practice at the Bar. Almost all judges of the High Court are
then selected from this pool of part-time fee-paid judges. This appointments route to the
senior judiciary has changed barely at all over the last forty years, despite official support
for the introduction of a system of promotions up from the lower ranks and the creation
of a wider appointments pool for fee-paid judges which might include some of the
100,000 lawyers in England and Wales who are not QCs.
Many reasons are put forward to explain why so few women are appointed QCs. They
range from wider social factors such as the division of labour in the home, the ‘choices’
women lawyers make in their career path, the long hours required at the Bar and lack of
confidence on the part of women. These may or may not explain why appointment as
QM is still so dominated by men. But it does not explain why the judicial appointments
process has failed to find ways to appoint from amongst the many talented lawyers who
fall outside this very narrow group. The explanation for this lies in the fact the judiciary
remains ultimately in control of judicial appointments process despite the introduction of
the new judicial appointments process.
At the heart of the old system was a process of judicial consultations, which came to be
known as ‘secret soundings’ by which judges expressed their views on the suitability of
candidates. Criticised as promoting self-replication, it was hoped that the creation of thejudicial appointments commission would counter the automatic identification of ‘merit’
with the candidates whose characteristics and career path most resembled that of the
judges selecting or recommending them. This break has not happened. The judicial view
remains dominant throughout the judicial appointments process through the ongoing,
though now more formalized system of consultations and in the selection process itself
in which the judiciary plays a very strong role, particularly at the upper ranks. Lay
members play an important part on the Commission and in the selection process but
they ultimately defer to the views of the judges on who will make a good judge,
particularly in relation to senior appointments. For the judiciary, the best judge in the
upper ranks continues to be a barrister (approximately 10 per cent of the legal
profession) a QC (approximately one percent of the legal profession), usually based in
London, usually in a commercial chambers. In short, a person very much like
themselves.
The senior judiciary and the senior Bar from which it is drawn remain deeply committed
to homogeneity both in terms of career pattern and culture. Their position can be
summed up as being strongly in favour of greater diversity as long as the judiciary
remains essentially the same. As Lord Lloyd, a former Law Lord inadvertently put it in
evidence to the select Committee:
‘I would like, obviously, the judiciary to be as diverse as we can get it. But that must
not interfere with the fundamental principle that we have got to choose the best man
for the job.’ (Lord Lloyd of Berwick, 2003)
For real change to come about in the make-up of the judiciary one of two things must
happen. Either the judicial appointments process must be taken out of the hands of
judges, which seems unlikely given that we have only recently created a completely new
judicial appointments process. Or the judges must accept that diversity without
difference is not possible and they must find a way to see merit in qualities which are not
identical to their own. If not, change will continue at a snail’s pace, the legitimacy of the
judiciary will suffer and the very few women who are appointed will be those who can
make themselves fit as closely as possible to the mould of the traditional candidate.You can also read
