Diversity on the bench: time to wake up?

4 May 2017

A record number of female MPs were elected to the House of Commons in 2015. In 2016 the second female Prime Minister assumed power, and in early 2017 a woman was appointed as the next Metropolitan Police Commissioner. Here at Kingsley Napley, the number of female partners now exceeds the number of male partners. As many institutions wake up to diversity, why is the UK’s judiciary still fast asleep?

Last week the all-party law reform and human rights organisation JUSTICE published the report ‘Increasing judicial diversity’ . The report is the product of a Working Party chaired by Nathalie Lieven QC and is the third JUSTICE report (the others published in 1972 and 1992) concerning diversity of the judiciary and the judicial appointments process. The report calls the lack of judges on the senior benches who come from a less advantaged socio-economic background or are BAME (Black, Asian, and Minority Ethnic) or female a ‘serious constitutional issue’.

The Judiciary v Diversity

12 Justices sit on the UK’s highest court, the Supreme Court. The Deputy President, Lady Hale, is the first and only woman ever to serve on the Supreme Court (and its predecessor, the House of Lords), giving a percentage of 8.3%. None of the 12 Justices come from a disadvantaged socio-economic background.

The picture isn’t much brighter in the lower courts. As of 2016, 20.5% of Court of Appeal judges are female (totalling eight judges) and none are BAME. It is a similar story in the High Court, just 20.8% (totalling 22 judges) of judges are female and 1.9% (two judges) are BAME. The circuit bench performs the best of the senior courts with 25.6% (160 judges) female judges and 3.7% BAME judges (23 judges). The JUSTICE report did not consider District Judges, but recent statistics show diversity is slightly better in the Magistrates: 7% of District Judges are BAME and approximately 32% are female.

Readers will be surprised to hear then that the legal profession as a whole is becoming increasingly diverse. Women are joining the solicitor profession in greater numbers than men, and 56.7% of BAME solicitors are women. Since 2000 there has been gender parity for those called to the Bar, although the number of white male QCs still vastly outnumbers those QCs who are female or BAME.

Every day judges rule on legal matters that have far reaching social, political and economic implications across the country. The argument for a judiciary that reflects the society it serves is clear: public confidence is boosted if judges are from similar backgrounds to court users; drawing talent from a wider pool improves decision making as the span of ideas increases and the risk of tunnel vision thinking decreases.

Now hiring: Lady and Lord Justices

The next three years presents a unique opportunity. Nine of the 12 justices of the Supreme Court will be stepping down and the Judicial Appointments Commission is recruiting 25 High Court judges and 120 – 140 judges to the circuit bench. This is a real chance to rapidly push diversity as a focal point for recruitment, but how might this be this achieved?

The JUSTICE report makes no fewer than 30 recommendations. One of the most eye-catching recommendations is a structured, purpose built judicial career path. The idea is to recruit talented lawyers (from a variety of sectors) early on in their careers and provide a framework to gain judicial experience in the lower courts and tribunals before advancing to the senior benches. This model better serves diversity given that the legal profession is becoming more diverse (see above).The current, ad-hoc, career path reinforces the status quo by focussing on recruiting senior barristers into Recorder or Deputy High Court positions.

The Justices have not been silent on the issue of diversity. Commenting on the upcoming Supreme Court vacancies, Lady Hale said, ‘If we do not manage to achieve a much more diverse court in the process of filling them, we ought to be ashamed of ourselves’. The President of the Supreme Court, Lord Neuberger, recently announced plans to boost diversity in the Supreme Court by offering flexible working hours. But not all Justices are on the same page. In 2015 Lord Sumption warned against rushing gender equality in the Supreme Court stating 50 years to achieve gender parity in the Supreme Court is a ‘very short term’ from a historical perspective. Lord Sumption’s comments appear to advocate for a gradual change. The fact that gender inequality was entrenched for centuries is, however, the reason that we should be pushing for the creation of a more diverse judiciary, not a justification for the status quo.

The Lord Chancellor, Elizabeth Truss MP, criticised the lack of diversity in the judiciary at last year’s Conservative Party conference, stating ‘this is modern Britain, we can do better…’’. With a general election round the corner, perhaps the next Lord Chancellor will do better.


This blog was co-authored by Joseph Thompson, Paralegal in Criminal Litigation.

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