Is enough being done to bring about the necessary changes to provide us with a truly representative judicial system? If not, what more could be done?
Congratulations are in order for 9 new High Court Justices appointed this month, of which 4 were women. That's 44% of those appointed. At face value that's pretty good going, right? But, as any lawyer worth their salt will tell you, it's all about the context.
According to figures published by the Bar Standard's Board in February 2019, only 29% of all Court Judges and 24% of Judges within the Court of Appeal and High Court are female. That's against the backdrop of a working age population which is 50.3% women. It's not hard to see that women remain wildly underrepresented within our judiciary.
Similarly, only one non-white Judge was appointed. Only 7% of all our Court Judges identify as Black, Asian or minority ethnic ("BAME") as against 15.5% of the working age population.
When one looks to the industry as a whole, the picture is on first glance more encouraging. According to the Bar Standards Board, women constitute 37.4% of the Bar and 13% of the Bar identify as BAME. However, only 15.8% of QCs are women and 7.8% BAME.
In law firms, while women make up 59% of non-partner solicitors in England and Wales, only 33% of partners are women (according to SRA figures last collated in 2017). This echoes a wider societal problem where women are entering a broad range of industries but remain in the minority at senior levels.
This trend appears to be bucked when it comes to ethnic diversity within law firms. According to the SRA 21% of non-partner lawyers and 20% of partners in 2017 identified as BAME. However, the level of ethnic diversity is significantly impacted upon by size of law firm and type of work. The largest firms in the country (50 plus partners), those doing a greater mix of work and those doing mostly corporate work, have by far the smallest proportion of BAME lawyers and partners.
It is nonetheless generally the case that the further up the ladder one looks, the less diversity one will see. Of the 12 Supreme Court Justices, only 3 are women and all are white.
Some will argue that progress is being made and we should celebrate the diversity of the recent appointments. But I can't help feeling we are setting our sights too low. If society accepts the basic premise that there is no inherent difference in ability to perform judicial functions between people of different genders and ethnic backgrounds, it is hard to see what justification there could be for such continued disparity.
It is right and fair on a human level that people from all backgrounds and those of different gender and ethnicity should have real opportunity to enter the legal industry and reach the most senior levels. It is also beneficial to the industry as a whole to have increased diversity. Further, it is incredibly important that our judiciary is representative of the public they serve. As Lady Hale, President of the Supreme Court, has said during an interview marking the centenary, the most important reason for a more diverse judiciary is that the public can, "look at the judges and say 'They are our judges'", rather than seeing, "beings from another planet" (The Guardian).
While not democratically accountable, a primary function of the judiciary, and indeed the legal industry as a whole, is to uphold the rule of law and it has a responsibility to the public as the conduit through which they access justice.
Most would agree upon the need for increased diversity but the way in which this can and should be advanced is a more difficult question. While the statistics are essential in identifying the problem, they do not provide us with a straightforward reason for it. That is because the reasons are complex; in part historical, cultural and undoubtedly systemic. This makes finding solutions equally complex.
For example, while undoubtedly effective in redressing the statistical imbalance, many feel that positive discrimination is not the answer. As Lady Hale has put it "no one wants to feel they have got the job in any way other than on their own merits".
There are other approaches, however, which can be implemented. Careers within the industry should be actively promoted more widely and outreach programs set up to target specific groups. Initiatives of this kind do exist. By way of example, in the summer of 2018 the Bar Council launched the '#I am the Bar' campaign to encourage aspiring barristers from non-traditional backgrounds to apply and to improve diversity within the profession.
Fair and transparent recruitment processes and training in diversity and unconscious bias for all staff but in particular those involved in recruitment is also essential. Blind application processes, where no personal details are included in applications are also an option that some professions are beginning to embrace. This means that candidates, at least at the first round of consideration, are assessed on specific experience and qualifications. There has been talk of this being utilised at the Bar (see the article 'Blind Recruitment' in Counsel Magazine September 2018).
In terms of the retention of women within the industry and their promotion to senior levels, this is doubtless contingent upon a more flexible and holistic approach to parental leave and working patterns. No longer can it be acceptable for individual organisations within the industry to argue that periods of parental leave, flexible working and home working don't fit within their business model and needs. If the current system doesn't support the changes that are required then the change must start at an institutional level.
The pressure on the industry to make those changes in part comes from the individuals within it, as well as wider public perception. But regulation which introduces formal accountability can also play a part. An example of this is the mandatory gender pay gap reporting introduced by The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 by which any organisation that has 250 or more employees must publish specific information about their gender pay gap. The resulting public accountability (and risk of negative PR) has put renewed pressure upon businesses to address the imbalance.
So while progress continues to be made, it should be incumbent upon the industry and the organisations within it to continue to investigate the reasons for the inequalities that remain and to implement policies which will provide access to potential candidates from all backgrounds because among them are the Judges of the future.