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Judicial appointments system must be overhauled to boost the legitimacy of decision-making
The concept of institutional discrimination is now familiar. It is seen in processes, attitudes and behaviours that amount to discrimination through unwitting prejudice and stereotyping that disadvantage people in a minority group. One thinks immediately of the police and ethnic minorities, but what of the judiciary and women?
In October 2011 the only female Supreme Court justice, Baroness Hale, pointed out that many male judges continued to belong to the Garrick Club, which excludes female members. Hale argued that the ‘old boy’ culture of the club was one factor preventing women from making it to the top judicial ranks.
While Hale’s point was about the importance of networking, the symbolism of membership goes beyond that. Most people would be uncomfortable appearing in front of a judge belonging to a club that excluded ethnic minority or Jewish members. Why should this be any different?
In November 2011 Lady Justice Hallett voiced her support for the use of the ‘tie-breaker’ provisions in the Equality Act 2010 allowing a woman to be selected for a judicial appointment ahead of a man when they are equally qualified.
In 2013, Hale too called for the use of a tie-breaker: interview panels, she said, were more comfortable hiring men and unconscious sexism was hindering gifted females.
Since she made those remarks a further three white men – and no women – have been appointed to the Supreme Court. It is no coincidence that in a number of landmark rulings, including on discrimination law, Hale has been in a minority of one. A judge from a different background will see things from a different perspective and this is why judicial diversity matters.
The appointment of the new Lord Chief Justice offered a chance to break the mould. To date, every Lord Chief Justice in this country has been male. The selection panel was faced with a number of impressive candidates. No one could deny that Lady Justice Hallett, widely praised for (among other things) her handling of the inquest into the 7/7 London bombings, would have made an exceptional Lord Chief Justice. Her appointment would have sent a signal to the legal profession that women can aspire to the highest positions and encourage more female applicants.
Just as we need diversity in those who make our laws and those who enforce them, so too we need diversity in those charged with interpreting and applying the law. It is a question of improving the legitimacy of judicial decision-making.
It is thus a huge disappointment that the panel selecting the Lord Chief Justice did not take this chance. We urgently need more women – and the best women – to apply: women made up just 17 per cent of the candidates in the most recent round of High Court appointments. Quite simply, the most able and talented female lawyers will not seek to become judges if they believe there is a glass ceiling preventing their progress to the highest levels.
Without a radical overhaul of the appointments system, accusations of institutional sexism at the highest levels of the judicial appointments process will be difficult to refute.