It has been a good week for the cause of diversity among Britain’s judges.
Just months ago one of only three of 36 Court of Appeal judges lamented the
lack of women in senior judicial posts. In the past three years, Lady
Justice Arden said, only one woman had been chosen for the High Court bench
compared with 29 men.
With the death of one woman High Court judge in that time, the single
appointment only kept levels the same as in October 2005.
But this week women seem finally to be breaking through the glass ceiling of
senior judicial appointments with a record number promoted to the High
Court. Five of 22 High Court judges announced are women — bringing the total
to its highest at 17. By contrast, six months ago there were only 11 women
among the 110 High Court judges in England and Wales and five years ago just
five.
So far two of the five have been named: Sonia Proudman, QC, who was sworn in
on Monday, and Elizabeth Slade, QC, who will be sworn in next month. The
other women will be announced as High Court vacancies become available.
The figures show that women applicants stand a good chance. Their success rate
was far higher than for men at almost 50 per cent (which itself may cause
adverse comment): 11 women and 118 men applied for the 22 posts, although
merit alone remains the criterion.
The announcements are nonetheless a boost to the fledgeling Judicial
Appointments Commission (JAC) that has struggled to show that its
transparent selection methods are making an impact. It was set up under the
Constitutional Reform Act 2005 to replace the tap-on-the-shoulder selection
system run by the Lord Chancellor’s Department. Despite reforms, the old
system was perceived as an Old Boy network and reliant on so-called secret
soundings among the profession’s great and the good.
Yet since it began in April 2006, the JAC has taken time to bed down, with
problems over procedures and criticisms that it had failed to improve
judicial diversity. This week Baroness Prashar, the chairman, said she was
delighted that “our strenuous efforts are beginning to show results”,
adding: “We expect the composition of the senior judges will gradually come
to reflect society more closely’.”
The experience needed for a High Court post means that the pool of eligible
senior lawyers contains only 20 per cent of women and 5 per cent from a
black or other ethnic minority background, reflecting the proportions
entering the profession three decades ago. But boosting numbers of women and
other groups is not just a matter of time and a growing pool. There is the
question of the job itself: is being a judge still an attractive one?
Dame Hazel Genn, Professor of Socio-Legal Studies at University College
London, says that there are several barriers to people applying for senior
judicial posts. Genn, also a member of the JAC, has in recent months
conducted research involving nearly 30 interviews with senior lawyers and
newly appointed judges about the incentives and disincentives for putting
themselves forward.
The attractions — particularly for barristers — include being the
decision-maker rather than the advocate and the intellectual challenge.
“Funnily enough, prestige is not that important, but acknowledgement of
having reached the top of your career is quite important . . . particularly
since people take such a big salary drop.” The status of the judge in
society also counted.
Secondly, there was a public service ethic: “There were some people who
thought that they were actually temperamentally better suited to the bench
than practice . . . having more time to reflect than in the kind of
hurly-burly of practice.” The work also brought predictability but that
meant less flexibility and, for some, was “actually a bit of a turn-off”.
For others, though, it was a relief not to worry about where the next case
was coming from, she said.
One big disincentive was the earnings cut, which is huge if the lawyer was in
a “magic circle” firm or at the top of the Commercial Bar. Genn said that
the demographic changes had increased that impact, with people marrying
later or having second marriages and children later. “People in their
fifties have significant financial commitments until quite late.” They also
had parental commitments, which were less spoken about but “don’t go away”.
So whereas in the past lawyers might have been prepared to take a salary
cut, that was now harder to achieve.
Finally there is the lifestyle. Going on circuit (six weeks away from London)
as High Court judges was a “turn off” for some, especially if they have
children or parents. There is flexibility over it but that is not well
known. Some people loved it and were happy to be away from home but for
others it was a genuine barrier.
Those who had applied were not by definition deterred by the new selection
process (applications, interviews) but they find self-assessment hard, she
said — it is a job for the Bar and Law Society to tackle, to prepare people
for a judicial career. Once in a law firm or at the Bar, people mostly did
not have to apply for promotion and were not used to the self-assessment
that is commonplace elsewhere. “One of the things people said all the time
is that it is a sort of appalling hubris to say how great you are. At the
Bar people are terribly worried about saying, ‘I am really great’.”
There is one other unforeseen problem, Genn found. A change from the tap on
the shoulder to application meant a loss of an element of personal
encouragement. “You’d be surprised at how many people you would generally
regard as being at the top of their profession who would say, ‘Well, I don’t
know, I wouldn’t be sure I’d be able to’. So you need a bit of encouragement
for someone to say, ‘Actually you are the sort of quality of person who
should be thinking about possibly putting yourself forward’.”
So steps can be taken to bring more people forward. Despite this week’s good
news, solicitors will be disappointed that of 22 new High Court judges, none
was a solicitor even though they make up 40 per cent of the eligible pool.
Of 129 applicants, 9 per cent or 11 were solicitors. One solicitor made the
45-strong shortlist. Meanwhile, only two of the 129 applicants was from an
ethnic minority; none was shortlisted. Genn said: “Some of the women I spoke
to in ‘magic circle’ firms — who are fantastically well qualified,
fantastically knowledgeable — haven’t even thought about judicial
appointment. It’s not even on their radar.”
