Equality and Diversity in Courts

In a society where discussions surrounding equality and diversity are becoming ever more prevalent, these discussions seem to often overlook the imbalance of gender representation in judicial systems. Judicial diversity is so important for the sustainability of our legal system. In a common law system, like that which we have in England, judges have great power in making and shaping laws through precedents. Therefore, if judges are drawn from one sector of society, the law will inevitably also tend to favour one group.

Lady Hale expressed this in her speech ‘Women in the Judiciary’ in 2014.

‘If the people in charge of the justice system are overwhelmingly from one section of society, then the justice system does not reflect the very values it is there to uphold.’

She later said that ‘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 planet’. This is extremely important. The public must have trust in their judiciary, and that can only really arise from appropriate representation of the population.

Judiciary UK, in a 2019 report, said that 32% of all judges were female, and 7% of all judges were of Black, Asian, and other minority backgrounds. Furthermore, 74% of judges were educated at Oxbridge. These figures are overwhelming. But, when we look at Europe’s averages, we can see that the UK is trailing far behind. As reported by the Guardian in 2016, the European average is 51% female judiciary, with Romania leading with 74%.

These facts spark discussion around why this is the case. There are three main reasons that frequently arise during this discourse.

1. While the Council of Europe, in 2014, determined that British judges are the highest paid in the EU, we have one of the greatest gender disparities on the bench. Lady Hale argues that one of the main factors for this is because of the Gender Pay Gap, meaning that women aren’t getting paid as much as men in the equivalent barrister position.
2. A second reason is that, while women are generally progressing to the exact same position as men until their mid to late 30s, they aren’t progressing at the same rate afterwards. Ms Bacik, a barrister herself and a co-author of the Gender in Justice report says that ‘they’re taking time out of their careers [for motherhood] and the careers aren’t accommodating that.’
3. A final key reason is sexual harassment. At a Gresham College lecture, Prof. Delahunty spoke about the fact that widespread sexual harassment at the bar was not being reported, because pupils and trainees fear that their careers will suffer if they do report it. The Bar Standards Board has only received two complaints of harassment over the last five years, but the Bar Council has set up a helpline to support those who have experienced harassment.

The question that stands, therefore, is what can be done. A vital first step is to encourage more widespread discussion regarding these issues in the legal system, thus creating greater awareness. Aside from this, there are three key things that can be done.

1. One suggestion that is present in the current discourse is the creation of greater flexible working structures, which would allow judges with potential to be acknowledged and helped to ascend more quickly.
2. Broadening the pool from which candidates at all levels are recruited is a further important step. Barristers should be recruited to the bench based on legal abilities, personal qualities, and potential. Lady Hale said: ‘It really bothers me that there are women who know or ought to know that they are as good as the men around them, but who won’t apply for fear of being thought to be appointed just because they are a woman.’
3. The process of incorporating gender equality will, inevitably, take some time, as it must be implemented in all generations. Lord Sumption has suggested that gender equality in the judiciary would take at least 50 years, but that in the history of the society we are living in, ’50 years is a very short time’. If friendly discourse is encouraged though, it is possible that this time frame can be improved. Toxic messages, however, like Lord Sumption’s views that women are ‘unwilling to tolerate long hours’, encapsulate the sexist culture that pervades the legal system. People should be having constructive conversations and educating those around them with facts, rather than the unhelpful lies that many are spreading.

Equality issues are finally being recognised. Discussions are finally happening, but to encourage meaningful change, more must be done. If more people understand the dangers of the lack of judicial diversity, there will be more calls for this to be tackled. Therefore, the first step that must be taken is creating awareness.

‘The law, the legal profession, and the courts are there to serve the whole population, not just a small section of it. They should be as reflective of that population as it is possible to be.’