It would never have occurred to me to apply for silk, had it not been for a judge telling a colleague that I should do so – and for the female colleague badgering me to apply.
Ironically, I only applied to be a judge because of my experience of being a spouse in politics. My husband was leader of the Labour Party from 2010-2015. My legal skills were the same before and after the General Election 2015. However, after the
election, applying for the judiciary didn’t seem as daunting as it might once have done.
I started my judicial career as a part-time Deputy High Court Judge, which was an excellent way to get an insight into the job. I discovered that I loved it. The encouragement I received along the way was important. I attended some excellent outreach
events organised by the Judiciary and Judicial Appointments Commission (JAC) which were reaching out to under-represented groups. Serving judges were friendly and supportive. It makes a real difference if you feel you’ll be welcomed into
the institution you’re thinking of joining.
When I am trying to explain to friends outside the law why it is so important for women to be at the heart of the rule of law, I use the example of Pride and Prejudice by Jane Austen. Yes, it’s a happy-ever-after love story
between Elizabeth Bennet and the dashing, rich Mr Darcy. But it’s also a story about the terrible impact of 19th century inheritance law on the lives of women. Mrs Bennet desperately and comically tries to marry off her five daughters to
avoid them losing their home when the family estate passes to the male heir, their obsequious cousin Mr Collins. It ended well for Elizabeth Bennet but let us not forget Elizabeth’s old friend Charlotte. She had to marry Mr Collins, a man
whom she neither respected nor loved. We see in the book how she spends her time setting up her life so that she has to see Mr Collins as little as possible.
"It would never have occurred to me to apply for silk, had it not been for a judge telling a colleague that I should do so – and for the female colleague badgering me to apply. Ironically, I only applied to be a judge because of my experience of being a spouse in politics."
It was not only the laws of inheritance that were grim for women in the 19th century. As a woman you did not own property or money. Even your clothes belonged to your husband. Your husband could physically punish you for disobedience. If your husband
divorced you, you had no right to see your children. The Love and Inheritance Trilogy by feminist writer Fay Weldon is set at the turn of the 19th century and graphically conveys the awfulness of a young woman being denied access
to her children after leaving her husband.
The position of women under the law has of course changed since 1813 but two recent high profile cases show the struggle of women with the content of some of our laws today.
In 2018 the Supreme Court considered the case of Owens v Owens  UKSC 41. Mrs Owens wanted to be divorced from Mr Owens – who did not wish to be divorced from her.
The judgments of the Supreme Court are fascinating in their analysis of the changing institution of marriage:
‘Expectations of whether it is reasonable to expect one spouse to continue to live with the other, in the light of the way the latter has behaved and its effect upon the former, have indeed changed over the 47 years since the Divorce Reform Act 1969 came into force…
the social norm which has changed most obviously over that time is the recognition that marriage is a partnership of equals. Indeed, the equality of the sexes is now also a legal norm, reflected in developments not only in family law but also in equality and anti-discrimination law.’
The way that Lady Hale, the first ever female President of the Supreme Court, analyses the behaviour that led to the breakdown of the marriage is poignant:
‘This was a case which depended upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time. Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage.’
Yet, reluctantly, the Supreme Court held that Mrs Owens had to remain married:
‘The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being. Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances… the family court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being.’
Another example of a woman struggling with the content of our modern law is Sally Challen. She was convicted of the murder of her husband in 2011. After her conviction, in 2015 Parliament passed the Serious Crime Act which introduced a new offence
of coercive control in an intimate or family relationship. Mrs Challen’s legal team gathered evidence to show how her husband’s controlling and coercive behaviour and emotional abuse had seriously affected her mental health. In February
2019 the Court of Appeal decided that she had been the victim of a miscarriage of justice.
As the examples of Elizabeth Bennet, Charlotte Collins and more recently, Tini Owens and Sally Challen show, the law wields immense power over the lives of women. Its content really matters. For me, this is what makes the law such a profoundly inspiring
profession. Professor Conor Gearty at the LSE put it pithily in a recent blog:
‘Law is a technical subject, without doubt, but it courses through with large questions about the kind of world we live in and how best to protect the values that we as a society hold dear.’
To what extent are women where we should be?
It is now well established that we need a diverse judiciary. A 2017 report from JUSTICE chaired by, as she is now, Mrs Justice Lieven, said as follows:
‘It is widely recognised, including by the Lord Chancellor and the senior judiciary, that a judiciary comprised mainly of white men from socially advantaged backgrounds is neither desirable for our justice system nor acceptable in 2017. The problem is acute.’
I am not saying that male judges are incapable of understanding the experience of being a woman. Far from it. Judges swear an oath on taking office to put aside our personal prejudices and biases and judge according to the law. However, we are human
and we are invariably shaped in a myriad of ways by our life experiences. A diverse judiciary means a diverse collection of life experience which can contribute to a more rounded development of the common law.
"A forthcoming report by JUSTICE will show that the pool from which the future women judges comes is fragile, so there is no guarantee that the progress made will continue."
A diverse judiciary is also important for public respect. Judges wield power over the lives of others. It is vital that the public respect and accept this. Lady Hale put it well in a 2014 lecture:
‘In a democracy governed by the people and not by an absolute monarch or even an aristocratic ruling class, the judiciary should reflect the whole community not just a small section of it. The public should be able to feel that the courts are their courts; that their cases are being decided and the law is being made by people like them and not by some alien beings from another plant. In the modern world where social deference has largely disappeared this should enhance rather than undermine the public’s confidence in the law and the legal system.’
So what do the statistics say? At my level of the profession, currently 24% of High Court judges are female. This is a significant and welcome change from 7.3% in 1995. In my cohort of new judges (2018) the figure is 50%. Of 10 new judges, five are
women and five are men. This was a fantastic result.
However, it’s also important to say the following:
- Overall, the figure of 24% female High Court judges is more representative than the 50% figure in my intake.
- The statistics show that, in the main, it is white women who are being appointed.
- We can’t start to have a proper conversation about the class and background of judges because the statistics have only recently started to be collected.
- A forthcoming report by JUSTICE will show that the pool from which the future women judges are likely to be appointed is fragile, due to the relatively small numbers of women in the lower courts that are usually feeders for senior appointments.
So there is no guarantee that the progress made will continue.
What’s happening in the pool?
The research by JUSTICE also shows something else that it’s really important we debate today. It’s specifically about the judiciary but my anecdotal experience suggests there may be something similar happening at the Bar.
The JAC assessed the pool of talent it considered eligible to apply for the High Court during the period 2017-2018. Forty five per cent of that eligible pool were women. Yet only 29% of applicants for this position were women. Once women applied they
stood as good a chance as men as getting appointed. I know from personal experience that the JAC is making strenuous efforts to reach out to under-represented groups in the judiciary. Serving judges are doing the same. Why, then, do we have such
a gap between the numbers of women eligible to apply and those actually applying? Why were women only a third of the total of applicants for this post?
To what extent are the barriers to us not applying self-imposed? Is it because we don’t think we’ll get the job? Do we under-estimate our abilities? Is it about childcare or other caring responsibilities? Do we not find the job attractive?
Do we want a better quality of life? Are there subtle barriers to entry like the composition of selection panels or the conventional wisdom on what makes a good judge, a good silk or a good head of chambers? The reasons may be complex and varied
but it’s important that we understand them, so we can begin to find solutions.
Pride and prejudice
Pride and Prejudice is a story about the power of the law over the lives of women. Pride and Prejudice also expresses what I feel. I feel immense humility when I read about the battles fought by our predecessors so women
can be where we are today. I feel immense pride at the strides that women have made in the legal profession over the last 100 years. But alongside our pride in the progress we have made, we need to keep talking about the prejudices that women
can continue to face in the content of some of our laws. We also need to understand the prejudices that women in the profession can face in getting into the senior roles.
Let’s build on the progress already made in creating a diverse legal profession and in shaping the law to protect the values that society holds dear. Let’s make the next generation of women lawyers as proud of us as we are, of our predecessors.
Dame Justine Thornton DBE is a High Court judge assigned to the Queen’s Bench Division. She is a barrister and has practised as a solicitor. After nine years working as a solicitor, she returned to the Bar and subsequently became a Visiting Professor of Law at University College London. She was appointed Queen’s Counsel in 2016 and a Deputy High Court Judge in May 2017.
This article is based on a speech given at the Women in the Law Summit on 17 May 2019 to mark 100 years after the Sex Disqualification (Removal) Act 1919.