By the time Britain’s most senior judges break for the summer at the end of July, the old establishment may have passed a watershed. Women may finally have made it to the very top. This month, there are interviews for the post of the UK’s top judge, the president of the supreme court. Last week, applications for the role of lord chief justice, the head of the judicial system in England and Wales, closed. Two other positions in the supreme court will soon be vacant. Never has there been a better opportunity for radical change.
The absence of judicial diversity stands out in the senior courts, but it spreads across the legal profession. Although it has improved in the lower courts, wherever judges are largely drawn from the Bar, they tend to be white and male. Until the narrow and rigid definition of what makes a good judge, and who judges it, is reconsidered at every level, there will never be enough diversity in the pipeline to ensure that the topmost courts reflect the makeup of the country. Less than two years ago, one of the best known justices of the supreme court, Jonathan Sumption, suggested that finding women of the right calibre might take another 50 years. He even warned, apparently without irony, that men must not be allowed to feel the cards were stacked against them. In her powerful response, the only female supreme court justice, Baroness Hale, tartly pointed out that a kind of ethnic quota already operates in the supreme court for good reason – so that the law of Scotland and Northern Ireland is represented in the supreme court, and it would not be quite so shattering to treat other diversities as significant.
There are vacant positions in the supreme court. Never has there been a better opportunity for radical change
An experiment inspired by the outgoing supreme court president, Lord Neuberger, in which male and female law students were shown judgments and invited to guess the gender of the author showed that gender did influence the decisions judges made, although not always in predictable ways. It also showed that, even in courts where there were female judges, they were less likely to write the leading judgments. In the words of the pressure group Justice, progress towards diversity in senior courts is “stagnant”. In a report last week, it argued for targets and new talent pools to recruit the best judges and match them to court needs, as well as proper career structures and talent management.
The advent of the supreme court has brought a new focus to the way cases that may affect everyone’s lives are decided. By definition, these can be cases in which the law does not provide a clear answer. More explicitly than in other courts, the justices bring to bear not only legal knowledge and intellectual powers but their own experience, what a member of the US supreme court once described as their social, intellectual and moral environment. It matters who the judge is, their gender, ethnicity and life experience (although not their politics). It is not their particularity that matters, but the mix and variety of perspective they bring. That is why all the world’s supreme courts sit in panels. And why business increasingly regards diversity as good practice.
This kind of change will be anathema to the self-regulating legal profession. But if in 2017, when Britain has a female prime minister and Scotland a female first minister, and when until recently Northern Ireland had a female first minister, the courts still cannot find a woman for either president or lord chief justice, then surely change will have to come.