Representation in the UK’s Judiciary: Where’s the Missing Link?

When judicial diversity is discussed, it often focuses on the extent to which women and black or minority ethnic groups (BME) are under-represented. On occasions, it also considers legal background, education, disability and other factors.[1]

The UK is among the bottom few of OECD countries in regards to representation in its judiciary and gender parity on the bench.[2] The percentage of BME judges is sub-par, and a very small minority, especially in the highest courts, come from socially disadvantaged background and are non-barristers or non-Oxbridge educated.[3]

Faced with this statistic, some would argue that different countries have different systems of education and this may be an explanation for the current lack of diversity. In many civil systems, becoming a judge is a matter of choice of career rather than appointment. We are not arguing that the first system is better than the latter, but rather that the UK’s current system of appointments lends itself to a greater lack of representation. It relies not on voluntary choice to pursue a career but on a series of hurdles which often rely on external recognition of one’s talent. However, it must be noted that other common law systems with similar processes, like Canada or Australia[4], seem to have much fewer problems in ensuring diversity? in their judiciary – it stands to reason we should ask why the UK persists as a somewhat lone exception.

Considering the steady reforms to the UK’s judiciary and judicial system in the past few decades, most notably the Constitutional Reform Act 2005, there is clearly a willingness and commitment to modernise the system to better fit our current expectations of governance (in terms of separation of powers) and principles of judicial independence which strengthen our rule of law-based system. With all these changes to our judiciary, we should have expected a more positive trend in terms of representation to mirror the importance of equality in our modern democracy.

To understand the extent of the issue, it seems best to look at the full picture. I would encourage you to review the statistics themselves – Diversity Statistics 2018 Table (https://www.judiciary.uk/publications/judicial-diversity-statistics-2018/) whilst considering that 51% of the UK population is female, and around 12% are BME.

While the Lord Chief Justice’s comments[5] express disappointment and reiterate the work the Judicial Diversity Committee has been doing (its outreach and application workshop programmes) these statistics are not particularly reassuring. Some commentators argue that more political will is required to adapt the system[6], and even go as far as insisting on quotas.[7] However, is this a feasible alternative considering the many who, like Lord Sumption, a current Supreme Court Justice, consider a rush for gender equality may cause the 800-year-old institution of the judiciary[8] to be “destroyed very easily”[9]?

An oft used argument is that representation will happen[10]. Eventually. However, women have been allowed to practice law since the Sex Disqualification Act 1919 – exactly a century ago – and the first woman to practice as a barrister, Helena Normanton, started her career in 1922. In light of this, it is clear the supposed ‘trickled-up’ effect[11] has failed to materialise in any substantive way.

The following statistics illustrate the diversity at every stage of a traditional career path for a judge:

  • Over the last three years, women have made up slightly more than 50% of the students who took the BPTC – a necessary qualification to become a barrister. Around 50% of students undertaking the BPTC are BME[12].[13]
  • Over the last six years, four of the six cohorts called to the bar had a slight majority of women, and on average 38% of students were BME[14].
  • If we look at the next step, pupillages, over the last six years, four cohorts had a majority of men, and on average 15% were BME[15].
  • Over the last eight years, of the barristers who were named Queen’s Counsel[16], the highest title a barrister can attain, 16% have been women, and 6% are BME.

At each stage of the legal career, there are fewer women and BME professionals. Different research projects have established the existence of the “Prestige Effect” and the “Caring Role Effect” at different levels of the judiciary[17]. The first finds that where women and minorities have gained appointment to the judiciary, it is mostly at the lower levels of the judiciary. The second shows that women will more likely hold judicial office in family law and “care” related posts, which again tend to be at lower levels of the judiciary. The fact that, at the time, the two women on the Supreme Court[18], Lady Hale and Lady Black, have a background in family law illustrates this well, as Lady Hale pointed out during a talk at Queen Mary University of London. There are issues with both of these effects, as the higher courts show a concerning lack of diversity. And this is without taking into account the wider social phenomenon which permeates all fields of work: the burden and responsibility of caring for family, whether young or old, falls predominantly on women.

Even if we were to accept the argument that women are less likely to actively pursue their career, whether because they decide to do so, or (more realistically) find themselves in a position where they have little choice, what then explains the steady decrease of BME professionals at each step on the path to a judicial career?

The assumption that the system is a perfect meritocracy is flawed, or naïve at best.

The lack of representation in the highest courts can partly be explained by the numbers above. However, one should also consider how the appointments to these courts are made.

Procedure for appointments to the United Kingdom’s Supreme Court are set out under the Constitutional Reform Act 2005[19] as such: The Queen appoints a justice following a recommendation from the Lord Chancellor (also known as Justice Secretary). The Lord Chancellor receives this recommendation from an ad hoc special commission, which itself consults senior judges, academics and lawyers across the UK. Since 2008, there have been seven Supreme Court selection commissions: six had a majority of men, while one included no women at all[20]. Most striking is that none of these selection committees brought forth a woman as the suggested appointee to the Supreme Court.

The commission which in 2017 recommended three new justices – Lord Justice Lloyd-Jones, Lord Justice Briggs and Lady Justice Black[21], and appointed Lady Hale as President of the Supreme Court, had two women out of the five committee members[22].

We wouldn’t suggest that the appointment of a second woman justice to the Supreme Court is linked to the fact that two women sat on the commission – and to suggest that would be to undermine Lady Justice Black’s excellent career as an outstanding lawyer. It can be understood however, that over time a diverse selection committee can result in a more representative Supreme Court. Even excellent judges and academics are subject to the cognitive biases we are all affected by.

When Lady Hale suggested that “it would not be impossible to speculate that it is always much easier to perceive merit in people who are like you than it is to discern the merit of those who are a bit different”[23], she may have been entirely correct. In social psychology, this is known as in-group bias[24]. And although it is an implicit bias, it still has a detrimental effect on decision-making. The first step to correcting this would simply be to be aware of it – our biases may be influential, but they don’t override higher-order rational thinking.

“Has a representational and outward facing role”[25], is written under the section ‘The Role’ in the appointment process for Deputy President of the Supreme Court document – one can only hope that one day there will be a similar heading under the ‘Criteria for Appointment’.

Why should we want to have a more representative judiciary? We trust that our judges are fair and impartial, that is not the issue. The problem is not “if thep judge presiding my case doesn’t look like me; I will not be delivered justice”. It is about knowing that somewhere, in this institution, there are some people who are like me, have had similar life experiences to mine and have a greater understanding of what it might be like to be me. Judges read each other’s judgments, more so as we move up the echelons to the higher courts. This cross-fertilisation is incredibly important in the common law system. People tend to project their own beliefs and values onto others – this is known as the ‘false consensus effect’, as individuals believe their views to be typical and common, and that others most likely share those views.[26]

The only way to be attuned to different views and perspectives is therefore to have people with different views and perspectives to share. Even if one is not acutely concerned with the lack of representation in our judiciary as it relates to equality, one must admit that by having only a small section of our society represented in our judiciary, we lose an incredible amount of richness – and opportunities to make better law – in judgments.

At its core, the judiciary interprets, makes and enforces law which protects the society and values that, as a country, we have decided to live by. And while judges cannot, and should not, respond to all political and social changes – they are after all a stabilising enduring institution – they should adapt and modernise in pace with the rest of the nation.

Maintaining the high quality which English courts have time and again proven to have goes to the essence of a healthy country and democracy. But so does perception of the public and the people’s trust in their own system. We hold the people and institutions who are key to preserving our constitutional values to a higher standard, including in matters of equality. Part of this is not seeming outdated and out of touch, but rather diverse in themselves and in their scope of understanding.

So, would a better strategy be to focus on outreach and help with the application process? Should legislation be enacted that encourages and reaffirms a commitment to equality through positive action? Should targets have better incentives, or should quotas be directly established? These questions remain to be answered as the debate around judicial diversity and its importance among our constitutional values grows louder – and, arguably, more urgent in an age of critical and worrying citizens’ distrust towards their governing institutions.

Lucia Saborio Perez is editor for the Energy and Environment policy centre at King’s Think Tank. She would like to thank Dr. Elin Weston (Dickson Poon School of Law, King’s College London) for her thoughtful and helpful feedback and support.

Endnotes:

[1] Thomas, C. Understanding Judicial Diversity, Research Report for the Advisory Panel on Judicial Diversity (2009) ISBN: 978-0-9926795-1-4. Available on request and at
http://www.ucl.ac.uk/laws/judicial-institute/publications.html

[2] https://ukconstitutionallaw.org/2013/04/11/kate-malleson-and-erica-rackley-is-the-uk-the-only-oecd-country-that-does-not-have-excellent-women-lawyers-fit-for-our-highest-courts/

[3] https://www.judiciary.gov.uk/publications/judicial-statistics-2017/

[4] http://journals.sagepub.com/doi/abs/10.1177/1037969X1504000305

[5] https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2017/

[6] https://ukconstitutionallaw.org/2013/04/11/kate-malleson-and-erica-rackley-is-the-uk-the-only-oecd-country-that-does-not-have-excellent-women-lawyers-fit-for-our-highest-courts/

[7] http://ukscblog.com/case-gender-quotas-appointments-supreme-court/

[8] https://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/

[9] https://www.standard.co.uk/news/uk/rush-for-gender-equality-with-top-judges-could-have-appalling-consequences-for-justice-a2952331.html

[10] https://www.standard.co.uk/news/uk/rush-for-gender-equality-with-top-judges-could-have-appalling-consequences-for-justice-a2952331.html

[11] https://www.newlawjournal.co.uk/content/%E2%80%9Ctrickle-effect%E2%80%9D-runs-dry

[12] Taking into account ‘Overseas’ students.

[13]https://www.barstandardsboard.org.uk/media/1835435/bptc_key_statistics_report_2017_-_all_parts.pdf

[14] https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/called-to-the-bar-statistics/

[15] https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/pupillage-statistics/

[16] https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/queen’s-counsel-statistics/

[17] Thomas, C. Understanding Judicial Diversity, Research Report for the Advisory Panel on Judicial Diversity (2009) ISBN: 978-0-9926795-1-4. Available on request and at
http://www.ucl.ac.uk/laws/judicial-institute/publications.html

[18] There are now three women on the United Kingdom’s Supreme Court, following the appointment of Lady Justice Arden DBE last June.

[19] Section 27 and Schedule 8

[20] http://www.bbc.co.uk/news/uk-24370177

[21] https://www.supremecourt.uk/news/lady-hale-appointed-next-president-of-supreme-court-alongside-three-new-justices.html

[22] https://www.supremecourt.uk/news/supreme-court-selection-process-launched.html

[23] http://www.bbc.co.uk/news/uk-24370177

[24] http://www.sciencedirect.com/science/article/pii/S0149763413001498?via%3Dihub

[25] https://www.supremecourt.uk/docs/appointment-process-for-the-deputy-president-of-the-supreme-court.pdf

[26] https://www.sciencedirect.com/science/article/pii/002210317790049X

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