Lady Hale: Supreme Court should be 'ashamed' of lack of judicial diversity

Lady Hale has used her latest speech to argue that the Supreme Court should be ‘ashamed’ of itself if the six vacancies set to be filled by December 2018 do not lead to a more diverse judiciary.

The UK’s top female judge urged the powers that be ‘to achieve a much more diverse Supreme Court’ in the coming years by appointing justices with a ‘wider range of experiences’.

Speaking at the University of Birmingham, the court’s deputy president said: ‘If the attrition of diverse minds is a good thing in itself, then how much better would it be if those diverse minds incorporated diversity in a wider range of parameters than their “eccentricities”, including of course sex, ethnicity, professional, and social background.

‘Not only that, if yet another eminent American judge, Oliver Wendell Holmes Jr, was right to say that “the life of the law has not been logic; it has been experience”, then we must have a wider range of experiences contributing to that life.’

Hale has previously called for greater diversity in the judiciary, but used this occasion to hone in on the selection of judges in the upper echelons of the court system..

She highlighted that, since her own appointment in 2004, all 15 lawyers sworn in as lords of appeal or justices of the Supreme Court  have been white men, with the majority enjoying privileged educations and careers.

While acknowledging she ‘shared the experience of being white and having been to Cambridge’, Hale expressed concern that the justices remain a ‘homogenous group’.

Hale believes the Constitutional Reform Act 2005 ‘has little to say about how the [selection] commissions should go about their work’ to select candidates based ‘on merit’.

She added that the extensive application process, which requires potential candidates to ‘sell themselves’, may put aspiring justices off and ‘we should be looking for ways to help and encourage the best to apply’.

Looking ahead, she considered the impact of the ‘equal merit’ provision, introduced by the Crime and Courts Act 2013.

‘The next selection commission is going to have to decide what use, if any, to make of this provision, which is optional. One issue is whether it should just be applied to the obvious “headline” criteria of sex and race, or whether to all the other characteristics protected by the Equality Act 2010.’

In what could be seen as a backhand winner to Lord Sumption’s comments last month, Lady Hale expressed concern at the fears women face about being appointed.

‘It really bothers me that there are women, who know or ought to know that they are as good as the men around them, but who won’t apply for fear of being thought to be appointed just because they are a woman.’

Hale added: ‘I don’t think that all the talk about the best women being deterred is a plot to put them off, but I am sure that they should not be deterred by talk such as this. We owe it to our sex, but also to the future of the law and the legal system, to step up to the plate.’ 

She concluded: ‘There will inevitably be six vacancies on the Supreme Court between September 2016 and December 2018. If we do not manage to achieve a much more diverse court in the process of filling them we ought to be ashamed of ourselves.’

Matthew Rogers is an editorial assistant at Solicitors Journal matthew.rogers@solicitorsjournal.co.uk