baroness-hale_2510812bIn a speech to Women in the Judiciary (the Fiona Woolf Lecture) Lady Hale fought the issue of diversity within the judiciary head on, proclaiming her agreement with Madeleine Albright’s statement that “there is a special place in Hell for women who don’t help other women” and asserting that “pioneering women must champion the cause of women generally”.

Because no legal audience likes arguments without evidence, facts and figures were relied on throughout the informative and balanced speech. For example, Lady Hale explained that:

–       Only 11.4% of Court of Appeal judges in England and Wales are women;

–       In the Supreme Court, only one woman can be found;

–       In the rest of Europe the average gender split is 52:48 (men:women);

–       If the percentage of women judges were arranged in order by European country, England and Wales would come 4th from bottom;

–       In the US there are 3 female Supreme Court judges (out of a total of 9). The same figures apply to Canada;

–       In 2012 only 12% of practising silks in England and Wales were women;

–       In 2013 only 18% of the successful applicants for silk were women;

–       All but two of the Supreme Court justices went to independent fee-paying schools;

–       All of the Supreme Court justices went to single sex boys’ schools (Lady Hale excluded, obviously);

–       All but two of the Supreme Court justices have a degree from Oxford or Cambridge.

Although she acknowledged that “things have improved”, England and Wales’ only female Supreme Court Justice made clear that more has to be done if the judiciary are to maintain democratic legitimacy and to uphold the laws of justice, fairness and equality that they swear to.

Lady Hale identified a number of prevailing beliefs as barriers to the diversification of the judiciary. For example the belief that diversity isn’t necessary in the judiciary (as this “overstates the importance of personal as opposed to vicarious experience”); the belief (held by “many in Parliament”) that “merit and diversity are competing rather than complementary values”; and the concern that change would require positive discrimination which would in turn discourage traditional candidates (who feared falling victim to positive discrimination) and women alike (who wished to succeed on merit alone, rather than allowances).

These arguments were all rejected in the speech in which Lady Hale made clear her own belief that diversity would improve the quality of the bench. In placing her argument, she cited an American judge, Benjamin Cardozo, who stated “out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component merits”. Indeed Lady Hale identified a number of judgments which she believes benefitted from the availability of her female perspective (including the case of Parkinson v St James and Seacroft University Hospital NHS Trust, which concerned “the damage done to a woman by an unwanted pregnancy”, or the case of Stack v Dowden, a famous case concerning joint ownership of a family home).

So how can this diversity (and subsequent increase in quality) be achieved? Lady Hale suggests the challenge is removing obstacles. Widen recruitment to the legal profession; abandon traditional stereotypes; recruit based on “legal ability, personal qualities and potential, rather than current experience”; encourage unusual applicants; and create a “proper judicial career structure”; and maybe then the public will 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”.