Lady Hale spoke of the “uncomfortable truths” behind the low numbers of women and BME judges in the recent Kuttan Menon Memorial Lecture. “In the Supreme Court there is still only me and the only ethnic minorities we have are the Scots and the Irish,” said Lady Hale. Statistics may look better in the lower courts, she said, but they include the larger number of fee-paid part-timers, many of whom will never become full-time judges. Comparing the proportion of women in the highest courts of the 34 countries in the OECD, “we were at rock bottom”.
Posts in the higher judiciary generally go to QCs, only 12% of whom are women, and who come from similar educational and socio-economic backgrounds. “Many able but sensible women choose either to go into another branch of the profession or to leave the Bar after giving it a go for a few years…If the Bar were really serious about helping young women to stay in independent practice, it would have done more to support the project to set up a Bar nursery,” added Lady Hale. She recommended recruitment of quality candidates from “wherever they might be found among those who profess the law”. This would mean tackling the prescriptive job descriptions, the lack of training offered, and the selection processes, “which can seem designed to favour those who are already familiar with the jurisdiction in question over those with the greater potential”. Serious thought should also be given to “methods of working, because some features of the judicial life are likely to deter some very able candidates from applying”.
“All this amounts to affirmative action,” she said, “but it does not amount to positive discrimination” and would make a “considerable difference if it were done with the right amount of enthusiasm”.
But Lady Hale took a step further in her conclusion: “So do we need to revive the argument for some special provision, akin to that in Northern Ireland, to enable the appointing commissions to take racial or gender balance into account when making their appointments? Would that really be such a bad thing? I think not…”
Lord Neuberger as President of the Supreme Court was asked about this issue when giving evidence to the House of Lords Constitution Committee in February. Steering clear of any suggestion of positive discrimination, he said that women should be encouraged to apply on a one-to-one basis, that there should be greater recruitment from academia, which has a higher proportion of women, and more part-time judicial appointments should be offered at all levels, including the Supreme Court.
“I have little doubt that we could manage with 11 full-time and two part-time – two half-time, as it were: a job share, almost,” said Lord Neuberger, who said he had been happy to accept the amendment to the Crime and Courts Bill that makes provision for flexible working.