In August 2022, Sir David Richards and Lord Lloyd-Jones were respectively听听as justices to the Supreme Court of the United Kingdom. With the recent retirements of Lady Jill Black, Lady Mary Arden and听, the highest court in the land has once again returned to having only one female judge.
Observers over the past decade have noted听听being made towards听听in the UK. Black was named as supreme court justice in 2017, Arden in 2018, and more recently,听, in April 2021. Hale, who became the first woman to ever sit on the court in 2009, broke further ground when she was elevated to the role of president in 2018.
When the current president, Lord Reed, took over from Hale during the first year of the pandemic in 2020, he听听that the lack of diversity among judges, in terms of both gender and ethnicity, could not 鈥渂e allowed to become shameful if it persists鈥. Despite this laudable stance, it is undeniable that in 2022, the diversity of the court has indeed declined.
Both Lloyd Jones and Richards are, of course, of outstanding repute. But among the 12 justices who comprise the supreme court, there are now three times more white, Cambridge-educated men, with the forename David, than there are women. In response, the court itself has stated that听.
For as long as the justice system is reliant on retaining only those who can afford to progress within the legal profession, existing听听will persist.听, such as听, the situation is unlikely to change in the foreseeable future.
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UK trails comparable countries
The听听show that, as of April 2022, women represent 35% of all court judges and 52% of all tribunal judges, which is respectively 11 and 9 percentage points higher than in 2014. Black, Asian and minority ethnic (BAME) representation constitutes 10% of all judges (3 percentage points higher than 2014).
However, within senior judicial positions, at the high court and above, there remains few women (30%) and even fewer BAME members (5%). While more women, and to a lesser degree, more people of colour, are becoming district and tribunal judges, at senior levels change has been slow to non-existent.
The UK follows what experts term a听. Within听听jurisdictions, judge-made decisions (otherwise known as听) represent a primary听. Consequently, the diversity of those sitting in that jurisdiction鈥檚 supreme court becomes all the more important.
A reasonable health check of the UK鈥檚 supreme court is to compare it to the highest court of other countries following common law traditions, namely the Supreme Court of听, the Supreme Court of Canada, the High Court of Australia, the Supreme Court of New Zealand, the Supreme Court of Ireland, the Supreme Court of India, and the Supreme Court of Pakistan. Look through the biographies of judges on these countries鈥 highest courts and it becomes quickly apparent that the UK鈥檚 are the eldest, with an average age of 66.
In terms of gender, the situation is even starker. At 8%, the UK now has the joint worst representation of female justices, tied only with听. This is following the appointment of the听, Ayesha A Malik, to the Supreme Court in Islamabad, in January 2022. By comparison, we note female representation at 50% in听, 44% in the听, and 43% in听.
When it comes to ethnicity, the UK has simply never had a justice of colour.听, meanwhile, currently has two out of nine justices of colour and the US, three out of nine.
Why diversity matters
, and even听, attribute the current lack of diversity to historical socio-political failures, which will take more time to be reflected at supreme court appointment level. Nonetheless, if we accept that a key part of the听听is not only that justice is done, but that justice is seen to be done, it must be important for those dispensing justice to reflect society and to positively shape the development of the law.
The听听as well as senior legal professionals have reiterated their commitment toward judicial diversity. Published in November 2020, the听, in particular, recognised that public confidence in, and the legitimacy of, the judiciary are sustained by judges who reflect the people they serve. If the judiciary does not draw from the widest pool and background, it will also, inevitably, miss out on talented individuals.
As the听听attests to, for judicial diversity to improve, the diversity of those professions feeding into the judiciary needs addressing. Under the current system, the majority of judicial offices are filled by barristers. Those previously听听at the Bar make up 69% of lower court appointments and 95% at senior levels.
Yet, in August 2022, criminal-law barristers voted in favour of an听听over legal aid cuts. This followed reports that their income has fallen听听over the past 20 years, to an average 拢12,200 in the first three years of practice. These specialists are often paid听听for court hearings, or even not paid at all when hearings are cancelled.
In other words, the criminal justice system is reliant on barristers鈥 goodwill that often leaves them out of pocket. For those who cannot afford to do so, there are few options other than to leave the profession. And since 2016, 22% of junior criminal barristers have done just that.
Set in this context, the criminal law bar strikes become about much more than just pay. It is about diversity, equality of opportunity for progression and the wider health of the justice system of England and Wales.
