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Judicial diversity

Judicial diversity

Bethany Barrett

23/04/2021

One of my first posts for LawCareers.Net was a profile piece on the icon that is Lady Hale. As the first female justice of the Supreme Court (appointed in 2009), she is rightfully regarded as a role model for women in the legal sphere and beyond. Her appointment fanned discussion about the lack of diversity in the highest UK court, a discussion that is now rising again with the recent appointment of Lady Justice Rose. While there have now been several (wow) multiple female justices to sit on the Supreme Court bench, the balance has still always been in favour of men. Moreover, we are still yet to have a justice appointed who is from a racial and ethnic minority background. If I had been writing a celebratory piece about the landmark appointment of Lady Hale back in 2009, I would have almost certainly written about how this was the start of a path leading to a much more equal and diverse bench. But this has not yet been the case. Why?

Well, in the absence of a system involving positive discrimination, the appointment of a more diverse bench has to be a long-term ambition. In order to gain the level of experience needed to be chosen, a potential justice must have either held high judicial office (such as the Court of Appeal or the High Court) for two years or have been a practising solicitor or barrister in the senior UK courts for the past 15 years. This means that a diverse Supreme Court bench will be seen only when a more diverse judicial and legal field as a whole is the norm. Change must come from the ground up, and you can see why – this experience is important in forming a bench of justices with a range of legal backgrounds and specialisms. So in order to ‘fix’ the lack of judicial diversity at the top, the issue of diversity at the bottom – right from admissions to law courses – must be solved first.

But that isn’t the end of the story. You can have a diverse and qualified pool to choose from, and still end up with a predominantly white male bench. There have to be systems in place to ensure that a candidate is not prejudiced at the point of being deliberated by the Judicial Appointments Committee (JAC) for appointment to the Supreme Court bench. While diversity must be a consideration for the JAC under s64 Constitutional Reform Act 2005, this is subservient to the primary consideration of merit. This is a clear rejection of any system of positive discrimination – except it is interesting to note that there are requirements already for a justice to be appointed from each of the four devolved nations of the UK. If positive discrimination can be used to set a quota for geographical origin, why can’t there be quotas for sex or race?

As you can see, the problem of judicial diversity – or rather, the lack of it – is complex and multi-faceted. While a system of positive discrimination might make the statistics show a more diverse judiciary on the surface, this can cause other issues, primarily a lack of trust in a judicial body awarded not on merit, but on unchangeable attributes. Instead, Lady Hale’s approach of “affirmative action” must be taken, whereby the JAC more proactively widen their searches for judicial candidates, and where a broader approach to defining ‘merit’ is taken. This must be coupled with changes in the system to better support and encourage a larger range of candidates at all levels of judicial role. These changes cannot be made overnight. But it has now been more than 10 years since the appointment of the first woman to the Supreme Court bench. How many more years will it be until we can call the bench truly diverse?