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Lady Hale: judiciary should reflect whole community

UK's most senior female judge calls for 'affirmative action' by the legal profession to help attract a wider range of candidates for judicial posts

7 July 2014

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Lady Hale has outlined the reasons why a more diverse judiciary would benefit the courts and society, and examined some of the reasons for the historic lack of such diversity, in an address to the Women Lawyers' Division of the Law Society.

The deputy president of the Supreme Court believes that "difference" is important and that diversity is a necessity.

"The judiciary should reflect the whole community, not just a small section of it. 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," she said.

"In the modern world, where social deference has largely disappeared, this should enhance rather than undermine the public's confidence in the law and the legal system."

Only 24 per cent of judges, including recorders and deputies, in the ordinary courts in England and Wales are women, according to figures released in April last year.

"The figures get worse the higher you get up the system," said Lady Hale. "Only 27.9 per cent of the upper tribunal judiciary were women. Only 16.7 per cent of High Court judges and 11.4 per cent of Court of Appeal judges in England and Wales were women."

However, Lady Hale did admit that figures have improved over the last year, with 21 out of 107 High Court judges now being women, and seven out of the 43 lord justices of appeal and heads of division.

"But there has only ever been one female head of division and in the Supreme Court there is still only me. It speaks volumes that we have to celebrate such a low proportion of senior women judges. There have been 13 appointments since I was appointed ten and a half years ago, and all of them are men," she continued.

Oxbridge boys

Lady Hale made reference to the make-up of the rest of her colleagues in the Supreme Court saying "male Supreme Court Justices mostly fit the stereotypical pattern of boys' boarding school, Oxbridge college and the inns of court".

Recent statistics from the Judicial Appointments Commission show that more women candidates are applying for judicial posts and the success rate of those women is higher than that of the men. However, Lady Hale believes that there is still room for improvement.

"Even in 2012, only 12 per cent of practising silks in England and Wales were women. Last year, only 18 per cent of the successful applicants for silk were women, so things are not going to get much better quickly. But there are a great many able women in the Government Legal Service, the Crown Prosecution Service, in commerce and industry, as well as the solicitors' profession and academia," she said.

For solicitors, Lady Hale commented that while the patterns of work may be rather different, the pressures of "presenteeism" in the top City firms meant it was hard to combine work with a normal family life.

"The client wants the document now, not when you get back into the office a few days later. Globalisation merely adds to the pressures, as the client may be anywhere in the world in a completely different time zone," she said.

Lady Hale also discussed the enduring stereotypes about who receives judicial appointments. "The top silks qualify for the High Court bench. Successful senior juniors, and some silks, qualify for the Circuit Bench, as do some solicitors," she said. "Solicitors, and a few barristers, become district judges in the county and magistrates' courts. A much wider variety of professional lawyers, including quite a few who practise as law teachers and academics, become tribunal judges."

The solution, in her view, is to tackle every obstacle when appointing women judges, including widening recruitment to the legal profession; broadening the pool from which candidates at all levels are recruited; abandoning traditional stereotypes; recruiting for legal ability, personal qualities and potential; encouraging unusual candidates to apply; and creating a proper judicial career structure.

"We judges could set a good example by offering ourselves as mentors to those wondering about a judicial appointment. This would all amount to affirmative action but not to positive discrimination," she concluded.

Lady Hale presented the Fiona Woolf lecture on Friday 27 June.