Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

malleson photo 2010Readers will be forgiven for not noticing, but on 8 April 2013 Lord Justice Hughes and Lord Justice Toulson were sworn in as Justices of the UK Supreme Court.

Their appointment, together with that of Lord Hodge (who will succeed Lord Hope when he retires in October 2013), leaves the Court rock bottom of the list Supreme Courts of the 34 OECD (Organisation for Economic Co-operation and Development) countries when it comes to the gender composition of bench. Fifteen new judges been appointed to the court since 2009 when the court opened its doors. All have been male.  Lady Hale remains the only woman ever appointed to the highest court in the land.

It is now well established that there are many barriers to women reaching the higher ranks of the judiciary: from the unreconstructed working arrangements of the legal profession and the bench to the wider social context of the gendered division of labour around caring responsibilities. But all of these barriers are equally present in other countries which have done so much better than us in appointing women to their judiciaries.

Numerous detailed proposals for reform have been put forward in the UK over the last 20 years for encouraging greater diversity on the bench. All of them are necessary but they are not sufficient.  What Adam Wagner has described as an ‘attack of the clones’ continues. In fact, in the last two appointment rounds – though which five Supreme Court Justices were appointed – just one woman sat on the appointing committee.

Ultimately, to change the composition of an institution of power such as the judiciary and to allow in those who are not drawn from the same background as the traditional recruits requires political will. Not just from politicians, but from all the key stakeholders, in this case the judges and the legal profession.

In Northern Ireland after the Good Friday agreement was signed there was political will to change the composition of the bench, in that case to include those from the catholic community. It would no longer have been acceptable for the majority catholic community to be tried by an almost exclusively protestant bench. Quietly and effectively the change was made within a few years. The same political will is evident in countries such as Canada which have transformed their Supreme Court composition in terms of gender. The latest round of appointments to the UK Supreme Court shows that the same political will is lacking here.

The claim – evidenced by these appointments – that after 30 years of women entering the legal profession in large numbers and almost a decade after the first woman was appointed to the House of Lords – we still don’t have enough highly talented women to appoint to the bench is simply incredible. Do we really believe that we are the only country in the OECD that does not have excellent women lawyers fit for our highest courts? They may not look identical to the men who have traditionally been appointed, but they are there. It is time for the discussions, the official reviews and the hand-wringing to stop. It is time for some of these excellent women to be put on the bench where they belong.

Kate Malleson is Professor of Law at Queen Mary, University of London. Equal Justices Initiative is a forum for bringing together academics, practitioners, judges and policy-makers to work towards gender parity on the bench.

Suggested citation: Kate Malleson, ‘ Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts? ’ ,  UK Const. L. Blog (11 April 2013) (available at http://ukconstitutionallaw.org).

3 Comments

Filed under Comparative law, Judiciary

3 responses to “Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

  1. Pingback: Morning Round-Up: Thursday 11 April | Legal Cheek

  2. Attorney at Law Hasan Özdemir as a member of İstanbul Bar Association

    Although İ’m a man lawyer in İstanbul, i can say easily that in this case Turkey is quite better than the UK, because women have been included the legal profession almost since then the established of Republic of Turkey. Male majority of institutions of power regenerates a tradional attitude shape on every problem. The consequences may be secured as statistical, if the reference is the last only but at the same time they are foolishly, if you can account the next potantial. Because if women lack in any profession, the smartness degrades steadily.

  3. RH

    Professor Malleson,

    I agree wholeheartedly with the thrust of this article, in particular that improving the gender balance on the UKSC will require concerted political will and effort, and that the composition of the appointments panel is of some concern.

    My comments rather address the use of the OECD statistics, although I was unable to find these online (so please forgive me if they already account for what I am about to say). It seems that pointing to a single data outcome would be misleading for a number of reasons – a number spring immediately to mind. Firstly, many civilian systems have a career judiciary, which may increase the chances of continuing in that role rather than requiring a step from (usually) bar to bench. Secondly, some courts, such as the German Constitutional Court, operate a direct appointment system – that court in particular tends to comprise those with professorships who are appointed for a 12yr fixed term rather than being the end of a journey of increasing seniority through the same profession. Thirdly, there is sometimes more than one ‘highest court’ in a particular country where there is a division of labour based on subject matter experience. Where the total number of judges is higher, it may well be that gender imbalance is sectoral but is then normalised when the ‘highest court’ figures are aggregated.

    There may well be a number of other factors which are jurisdiction specific. The complications in such a comparison can be seen e.g. in this relatively recent paper which attempts to control for them in a more nuanced way:

    http://web.pdx.edu/~mev/pdf/PS471_Readings_2012/Williams_Thames.pdf

    It may be that the ‘bottom of the OECD’ claim is borne out even when relevant variables have been eliminated, and it may be that for the time being, that claim is valuable in of itself as an appeal to the political will for change which is required. However, in order to bolster its effectiveness against a defence which suggests that the ‘bottom of the OECD’ claim is too knee jerk and does not compare like with like, more empirical economic analysis of the kind demonstrated in the above paper will be required.

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