The appointment of three ‘top judges’ attracted predictably little press attention last week, even though Lord Justice Hughes, Lord Justice Toulson and Lord Hodge will make up a quarter of the Supreme Court. Perhaps that is a good sign; it suggests the public has no reason to doubt that the best people have been appointed. Neither have I. But one of the justices with whom they will sit is not so sure.
In the clearest statement of her views that I have so far read, Lady Hale has called for positive discrimination in senior judicial appointments. If her wishes are granted, the judiciary will never look the same again. Delivering the Kuttan Menon lecture on ‘Equality in the Judiciary’ last month, Hale pointed out that a candidate’s area of professional expertise could be taken into account when making appointments in the higher courts. Thus the Supreme Court was required by statute to have judges with experience of practice in the law of each part of the UK.
‘Our equality laws depend upon the proposition that race and sex are not relevant qualifications, or disqualifications, for any job save in very exceptional circumstances,’ Hale continued. ‘It may be a genuine occupational qualification to choose a black Othello or a female Desdemona, but could it be thought a genuine occupational qualification to bring a minority perspective to the business of judging in the higher courts?’ Hale’s answer, presumably, was ‘no’.
‘So do we need to revive the argument for some special provision, akin to that in Northern Ireland, to enable the appointing commissions to take racial or gender balance into account when making their appointments? Would that really be such a bad thing? I think not…’ How would Hale’s plan have affected the recent Supreme Court appointments? She does not say. If it had made a difference, the policy would presumably have led to the appointment of a woman in place of one of the men. We can infer from the appointment commission’s actual choice that its members would have regarded that woman as less suitable than one of the men it selected.
I do not know any female lawyers or judges who would have felt comfortable if a second-best woman had been appointed. Would any woman judge want it thought she had been given preferential treatment because of her gender? The logical consequence of Hale’s suggestion is that a number of seats on the court should be reserved for women. By convention, the Supreme Court has two Scottish judges and one from Northern Ireland among its 12 members. Because Scottish candidates and English candidates are not competing for the same job, nobody considers whether a would-be judge from one jurisdiction is better than one from another.
Would that solve the problem? First, we would need to decide how many seats were reserved for women. Three out of 12, perhaps? Four? Whatever figure was chosen would be a minimum; there would be nothing to stop one of the Scottish or Northern Irish seats going to a woman or, presumably, someone from one of those jurisdictions applying for one of the women’s posts.
But once the system was up and running, you could be sure that there would always be at least three or four women on the court. The question of whether or not female candidates for these posts were more suitable than male candidates would simply not arise; they would simply be the best women available.
This is not something that could be introduced overnight if we are to continue making appointments from the existing senior judiciary. At the moment, there are only four women in the Court of Appeal of England and Wales. I understand that Mrs Justice Dobbs, the only black judge in the higher courts, is about to retire.
And positive discrimination is unlikely to find favour with the senior judiciary. Asked by the Lords Constitution Committee last month what they could do to increase judicial diversity, neither the president of the Supreme Court nor his deputy even mentioned it. Instead, Lord Neuberger spoke of encouraging individual applicants. ‘Men tend to have an inflated idea of their abilities; women tend to have the opposite,’ he explained. ‘I have noticed that women are much more likely to feel that they are not good enough to become High Court judges or to apply for the Court of Appeal than men.’
But Lord Hope pointed out the difficulties. ‘You compromise your independence if you say to somebody, "please apply", and then people find that they were invited in and others were not,’ he said. Neuberger also supported part-time judges and more appointments from the academic world. But the only thing that will make any difference – and encourage more women to come forward – is all-women shortlists for the higher courts.