Judicial diversity

On the 9^th November  I produced an article on legal aid within family law and considered the findings from a recent Council of Europe study which found that the UK is Europe’s legal aid capital and the third highest out of nearly 50 countries analysed.

In the article, I focused on how the process of comparing country to country does not really tell us much and I focused on the impact upon the reduction of legal aid on family law. In the study, the report which was produced by the Council of Europe’s European Commission for the Efficiency of Justice [‘CEPEJ’] also identified various other trends across the judicial systems in 45 European countries. The report and its findings as well as the country profiles can be accessed here.

The summary of the findings from the study are as follows:

• European states spend an average of €72 per inhabitant per year on the legal system
• The number of female judges and prosecutors is continuing to increase, but the legal profession remains predominantly male
• On average there are now 164 lawyers per 100,000 inhabitants
• The number of courts decreased by 10% between 2010 and 2018
• Courts across Europe were able to continue functioning during the pandemic thanks to recent advances in Information Technology.

As is apparent from the above, the Council of Europe study flagged up a very important issue:  diversity of judges within the UK and in particular, the lack of diversity when it comes to female judges.

Media outlets have aimed to analyse the data from the country profiles and it has been reported by the Telegraph that the UK has the lowest proportion of judges that are women of the countries in Europe analysed.  The reason for this conclusion is something that needs to be analysed and assessed, as voiced by Amanda Pinto QC, chairwomen of the Bar Council stated:

“The lack of women in the higher levels of the judiciary must be urgently addressed and rectified in the interests of justice. Progress has been too slow…”

In response to the findings in the report, the Telegraph obtained the views of the Law Society President David Green who stated:

“Judges sit at the core of the justice process and it is vital that the judiciary reflects the diversity of the society it serves and that of the legal profession.

“Women make up more than half of the solicitor profession of England and Wales, and half of all judicial applicants for legal roles. However, currently only 32 per cent of court judges and 47 per cent of tribunal judges are women. The proportion of women in senior court roles is even lower.

“We continue to press for further improvement in the gender diversity of the judiciary, and will continue working with stakeholders to understand better the reasons for those disparities and to carry that understanding forward to ensure application processes are open and fair.”

In fairly recent times, the issue of diversity was flagged when Baroness Hale was appointed to the Supreme Court. The focus highlighted the issues that have emerged over the years and the need for diversity across all levels and ranks within the judicial system. Baroness Hale has retired and Lady Black who was the second female Supreme Court judge announced that she will retire early next year and Lady Arden is due to step down in the year 2022.  Lady Hale (when she was the President of the Supreme Court) advanced the need for gender equality in the number of judges by 2033 and she outlined:

“it’s obvious that we still have a long way to go with women in the law both in the profession and the judiciary.”

The current Supreme Court President, Lord Reed has rightly acknowledged that the lack of diversity amongst the 12 Supreme Court judges “cannot be allowed to become shameful if it persists”.   There is of course a pressing need to increase diversity in the highest court of the land and the judicial advertisement for the vacancy in the Supreme Court acknowledges the need for “applications from those who would increase the diversity of the Court”.

It is vitally important that there is a focus on diversity in relation to women across the whole legal profession. I would encourage readers to read the article of Professor Jo Delahunty QC which is titled ‘Women at the Bar in 2020’ which can be accessed here. She acknowledges that ‘diversity, of course is not just about gender’  [for example it is also worth noting that currently, just 4% of senior judges appointed to the High Court or above are from a black, Asian and minority ethnic backgrounds] and Professor Delahunty QC reminds us all that ‘ guiding principles of our laws are justice, fairness and equality. If we believe in them at the Bar and Judiciary, we should agitate and act to achieve change to ensure that fairness and equality are visibly embodied in our ranks’.  She also considers the progression of the Bar over the last 15 years in particular as well as the importance of tackling institutionalised industry bias.  In the family law context, I would also encourage readers to check out the fantastic work Women in Family Law which was founded in January 2020. The organisation brings women together from solicitors, paralegals, barristers and also judges with the aim of uniting and supporting women in the legal profession.

The judicial system needs to reflect the country’s diverse population.  Having a more diverse judiciary will surely encourage people from the same sex or background to aspire to become judges themselves. Clearly, more needs to be done on the diversity front and it is a welcome site that those in the Supreme Court, both past and present have regularly voiced the need for a more diverse judiciary and it is hoped those in the relevant positions will continue to campaign for this to be achieved, at all levels, not only within the judiciary, but across the legal profession as a whole.