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Kate MallesonProfessor Kate Malleson, Queen Mary University

Last month the shadow Lord Chancellor, Sadiq Khan, appointed Geoffrey Bindman QC and  Karon Monaghan QC to undertake a review of the problem of how to improve diversity in the composition of the judiciary. The Guardian reported that their brief was wide and that ‘nothing is off the table’, including the ‘nuclear option’ of quotas. This development represents a significant shift in the political discourse around judicial diversity.

In 2005 Lord Falconer, when Lord Chancellor, stated definitively that ‘we won’t have quotas’ and this position has been adopted since then by almost all lawyers, judges and politicians involved in judicial appointments, including the House of Lords Constitution Committee in its report into judicial appointments in 2012 which concluded that there was ‘no case for quotas’. It did, however, recommend that non-mandatory targets should be considered if there was no significant increase in BAME and women appointments.

Since 2012 there has indeed been some improvement in judicial diversity, but it has almost all been at the lower levels of the judiciary. The senior ranks remain stubbornly homogenous, occupied almost exclusively by white, male barristers from socially advantaged backgrounds. And it is the Supreme Court where this lack of diversity is most acute and most controversial, particularly in relation to gender. Brenda Hale remains the only female Supreme Court Justice having been appointed to the House of Lords in 2004. Since her appointment ten years ago 13 men have joined the Court  and the Supreme Court now ranks internationally as the Court with the lowest proportion of women in all the highest Courts in the OECD countries. In light of these figures the case for the introduction of a gender quota needs to be revisited.

Effectiveness

The main argument in favour of quotas is that, unlike all other methods, they are guaranteed to work. A report by the Hansard Society on ‘Women at the Top’ in 2005 concluded that all-women shortlists were the ‘quickest and most effective means of delivering equal representation’ in public life. Most gender quotas around the world apply in the selection of candidates for political office but they are increasingly common in the appointment of judges, particularly to the top courts and international courts. Most recently, reforms were introduced to include gender quotas in the appointment process for the Belgian constitutional court. Currently women make up 16 per cent of that court (twice the proportion of women on the UK Supreme Court). Longer-standing gender quota systems have been in operation for selection to the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). As a result, 35% of the judges on the ECtHR are women and 60% of the ICC. This compares to less than 10% of the International Court of Justice which does not operate a gender quota.

Evolutionary not revolutionary Appointment on merit

Quotas have often been viewed as a radical departure from the standard judicial appointments process. In reality, both formal and informal quotas are commonly applied in well-respected courts around the world in relation to characteristics other than gender such as geographical, religious, ethnic and linguistic representation. The idea that a Constitutional Court or a Supreme Court must reflect in broad terms the demographics of its jurisdiction is not generally controversial. The UK Supreme Court itself already applies a de facto geographical quota in that under the Constitutional Reform Act s. 27(8) two judges must come from Scotland and one from Northern Ireland. This is generally justified as required because Scotland and Northern Ireland have separate jurisdictions and so different laws and legal systems. This is undoubtedly true, but it is not the whole story. While the legal specialism argument is relatively strong for Scotland with its very distinct law and legal system, it is much weaker for Northern Ireland which shares much of its law and legal system with England and Wales. Moreover, such an argument is almost non-existent for Wales yet there a consensus is emerging that there should be a judge with a Welsh background on the Court despite the fact that England and Wales constitute one jurisdiction. In common with many other Supreme Court and Constitutional Courts the geographical quotas for the UK Supreme Court are as much about geo-political sensitivities as they are about the need for a legal specialist with knowledge of a distinct and different jurisprudence or legal system.

Appointment on merit

Perhaps the most commonly expressed concern about quotas is that they undermine the merit principle and will weaken the quality of the bench. The claim that quotas might weaken the quality of judicial appointments should be strongest where the potential candidate pool is smallest. Yet it is noticeable that these fears are not generally expressed in relation to the geographical quotas for Scotland, Northern Ireland and Wales despite the small size of all three jurisdictions and so the limited size of the potential candidate pool. In contrast, the pool for candidates for a gender quota includes a much larger group given that women have been qualifying as lawyers in all three jurisdictions in substantial numbers for over three decades. The suggestion that a gender quota might undermine the quality of the Supreme Court is therefore only well founded if there is a realistic fear that there might be no women candidates to be found who are as well-qualified as potential current male candidates amongst the tens of thousands of senior female practitioners, judges or academics across the UK.

Flexibility

Another common criticism of quotas is that they are heavy-handed and inflexible. In fact, there is a wide range of models of quota systems and different approaches can be accommodated within different appointments processes and tailor-made to the needs of each jurisdiction. Some quotas apply at the short-listing stage of the appointments process, others at the point of recommendation or the appointment decision. The provisions relating to the Belgian Constitutional Court are a good example of this flexibility. They require a quota of 30% of women to be appointed to the court but they only come into effect when the proportion of women in the court has already reached 30%. Until then, the rules state that one woman must be appointed for every two men who are appointed. In this way, women will come to make up 30% of the court and will not be allowed to fall below 30% once that figure is reached.

A different model is found in the appointments process of the ECtHR. Under gender provisions passed by the Parliamentary Assembly, the shortlists of three candidates which are put forward by Member States must include a member of the under-represented sex, where under-representation is defined as less than 40 per cent of the membership of the Court. Provided the proportion of members of each sex falls within a 40:60 ratio, the shortlist gender requirements do not apply. Women currently make up 33% of the Court, so that it is quite possible that the provisions may be dropped in the near future if women continue to be appointed in significant numbers. Similarly, if they fall back below 40 per cent, the provisions would apply again. Moreover, if the percentage of women goes over 60% in the future, the quota will be applied in favour of male candidates.

The fact that quota models are varied and flexible further weaken the claims that they pose a threat to the merit principle or undermine the fundamental basis of the appointments process. They can be adapted and developed over time to suit the needs of the court and the available candidate pool. In practice, the danger is, if anything, that the flexibility they offer could result in a system being adopted which is excessively unambitious, failing to produce a change in composition fast enough.

Legitimacy and public confidence

Although all the current members of the Supreme Court are publicly supportive of greater diversity in the Court, it is only Brenda Hale who has expressed support for any form of positive action to bring this about. Opponents of more proactive measures, both amongst the Justices and amongst lawyers and politicians, need to be aware that the longer the current composition of the Court continues, the greater the danger that public confidence in its work will be eroded. Evidence for the damage which the lack of diversity is causing is found in a review conducted by Richard Cornes of the press coverage of an event to mark the start of the 5th year of the Court. He noted that of the 15 or so stories published in a wide range of different newspapers ‘about 75% headlined the diversity point.’ This finding led him to conclude that the lack of diversity in the Court is its Achilles heel. At a time of public cuts when no aspect of the justice system is beyond criticism or attack, the Court can no longer afford these headlines. Positive action in some form is now needed to bring about a gender balance on the Court and the option of quotas should be firmly on the table.

 

Kate Malleson is a Professor of Law at Queen Mary University, London. Her particular research interests are the judiciary, the legal system and the constitution. She is also an academic Bencher of Middle Temple.