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Lewis Graham: Lady Justices and Dissent on the Court of Appeal of England and Wales

Much has been said on the gender imbalance of the senior courts of England and Wales. Since the House of Lords became the Supreme Court in 2009, a total of 22 men have sat as full-time Justices, compared to just three women, all of whom are currently serving. Justifiably, a lot of attention has fallen on Lady Hale, an outspoken exponent of greater judicial diversity and current Court President.

However, much less attention has been paid to other judges, and particularly the Court of Appeal, the next highest court on the ‘rung’ of the judicial ladder. That court has also been slow in its progress towards gender parity; the figures are nothing to boast about; including the ex officio judges, women take just eight out of forty-three places of the current Court of Appeal roster (around 18%).

There are lots of reasons why judicial diversity matters. But there is also an interesting, and underexplored, question of what effects diversity has on the output of the court, and of whether a judge’s gender (or indeed, any other given aspect of their personhood) affects their judicial role. There are, of course, surrounding questions as to whether a focus on ‘difference’ is authentic or problematic, but the question remains open as to whether women judges do things differently. The present enterprise seeks to tap into this enquiry, by looking at the behaviour of judges – particularly Lady Justices – on the Court of Appeal. This post certainly does not seek to provide a wholesale analysis of the behaviour of women judges on the Court of Appeal, a mammoth and likely impossible task. Rather, it will tentatively assess judicial behaviour on that Court using a single indicator: a judge’s propensity to dissent.

Dissent propensity seems to be a potentially useful unit of measurement. Analysing patterns of dissent is not without precedent. It is one of the more obvious institutional avenues by which a judge can exhibit a different voice and might act as a useful (if very rough) proxy for divergent behaviour more generally. In practice, it is utilised sparingly but often with great effect – most law students will have an easier time recalling Lord Denning’s period as the great dissident in the Court of Appeal than his more orthodox stint in the House of Lords.

Dissenting behaviour is sometimes difficult to define, so for present purposes a quasi-official characterisation has been used; a judge’s written opinion will be deemed a ‘dissent’ if it is described as such in the official report or transcript associated with it. Any opinion in which a judge is “dissenting”, “dissenting as to outcome” or “dissenting in part” (and slight variations on these terms) counts, whereas those opinions in which a judge is described as “dissenting as to reasoning” are excluded. The data seems to indicate that, between 2013 and 2017, using these criteria, that there were a total of 89 instances of dissent across 88 cases (this is because in one case, two judges issued a partially dissenting opinion regarding different aspects of the same case, and this was nonetheless described as two ‘dissenting’ opinions in the case report). Given that the number of civil cases handed down in this period is around 5000, this means that the frequency of dissent is very low: less than 1%. However, this might mean that dissents are authored only when the judge has something very important to say.

Great dissenters?

 

Name of Justice

 

Number of dissenting opinions
Arden* 8
Gloster* 7
Briggs; Elias; Lewison; McCombe 6
n/a 5
Beatson; Longmore; Rix; Vos 4
Jackson 3
Davis; Floyd; Macur*; Moore-Bick; Patten 2
Black*; Burton; Cranston; Etherton; Gross; Judge; Maurice Kay; Keene; Laws; Lloyd-Jones; Mummery; Pill; Pitchford; Richards; Roth; Sales; Sharp*; Sullivan; Thorpe; Underhill 1

The table above shows that in this period, no judge issued more than eight dissenting opinions and the majority of those who did issue a dissenting opinion at all did so only once. There are some obvious reasons for this, some of which relate to the limitation of the enquiry. Some judges did not sit for the full five-year period or sat on more criminal cases where dissent is generally absent. Nonetheless, and mirroring the results in the comparative literature, it can be seen that the two most frequent dissenters in this period are women: Arden and Gloster LJJ. Dissent is not the exclusive purview of Lady Justices, however; Briggs; Elias; Lewison and McCombe LJJ each issued 6 dissents over this period.

Instances of Dissent Average no. of dissents Total “dissent case” appearances Percentage of “dissent cases” issuing a dissent
Total 88 2.44 214 41%
Lady Justices 19 3.8 35 54%
Lord Justices 69 2.23 179 39%

In terms of averages, the average Lady Justice who issued at least one dissent delivered 3.8 of them. For Lord Justices who issued at least one dissent, the figure is 2.23. Not all Lady Justices were frequent dissenters, however, as can be seen, and there are only five Lady Justices active in this period who issued a dissenting opinion at all.

It is also interesting to look at how many opportunities for dissent were passed upon. Treating all cases where a dissent was issued by any judge as a discrete category of “dissent cases” can allow us to see when a given judge sitting on a case chose not to ssue a dissent when another judge did. This might also serve as a very rough proxy for identifying so-called ‘hard cases’. This shows us the following:

Name of Judge Dissents issued (total involvement in “dissent cases”) ( >=5 ) Percentage of dissents in “dissent cases” ( if >=5 )
Gloster* 7 (9) 78%
Elias 6 (9) 67%
Lewison 6 (11) 55%
McCombe 6 (11) 55%
Arden* 8 (16) 50%
Vos 4 (10) 40%
Patten 2 (5) 40%
Beatson 4 (11) 36%
Briggs 6 (17) 35%
Longmore 4 (13) 31%
Jackson 3 (10) 30%
Floyd 2 (9) 22%
Moore-Bick 2 (10) 20%
Laws 1 (5) 20%
Etherton 1 (6) 17%
Richards 1 (7) 14%
Sales 1 (7) 14%
Underhill 1 (7) 14%

Thus Gloster LJ moves to top of the list, dissenting in 7 out of 9 “dissent cases” in which she sat. In other words, she sat in 9 cases where at least one dissent was issued, she was that dissenter on 7 occasions. Arden LJ, on the other hand, was that dissenting judge only 50% of the time (8 of 16). Under this analysis, certain Lord Justices such as Elias LJ also seem like keen dissenters.

On average, when a Lady Justice sat on a “dissent case”, she dissented 54% of the time (compared to 39% for Lord Justices). When this is adjusted to only include those judges who sat on 5 or more “dissent cases”, the figures become 60% and 34% respectively.

This crude data, then, shows that there is some limited support for the suggestion that Lady Justices’ propensity to dissent is different from Lord Justices. The conclusions drawn are subject to some important caveats, namely: the arbitrary temporal limits imposed; the particular definition of dissent used; a relatively small dataset and the focus on “dissent cases” to work out percentages.

Beyond the numbers: judges in the real world

Statistical analysis can, of course, only tell us so much. It does not tell us whether a Lady Justice’s particular (gendered?) experience has at least some correlation with a slightly inflated dissent rate. Taking a look at the cases in which Lady Justices dissented does not reveal any uniform pattern. Cases concerning issues that might be said to involve a gendered (perhaps feminist?) dimension such as access to marriage services or the legality of gender segregation sit alongside much more mundane cases about corporate liability and the assessment of statutory damages.

But there are some cases in which the judge’s gender experience seems to have a more tactile influence. In a case against the Al-Hijrah School, Gloster LJ dissented on the issue of whether gender segregation in a school setting affected girls in a manner which was more severe than boys. She disagreed with the majority in finding that it did, suggesting that specific evidence of disadvantage was not necessary to prove unfairness, given that the unequal position of men and women in society is so self-evident:

Evidence is not needed to inform the court of the historic, and indeed recent and continuing, struggles of women for equal rights, equal opportunities and equal pay in UK society… protected characteristics are protected because they all have long histories in which one group has been regarded as fundamentally different or inferior in ways which the law today recognises are unjustified and unacceptable but which… persist in power imbalances which continue to exist across society at large.

and, in both of the following passages, that by separating boys and girls in the school setting, this reinforces this wider societal inequality:

[T]he segregation by sex on a mixed sex educational campus necessarily endorses and perpetuates, or at the very least risks endorsing and perpetuating, stereotypes about girls and women that are still pervasive in society and which are widely recognised as detrimental and unduly limiting. And that in turn results in expressive harm to girls.As a generality, men exercise more influence and power in society than women… an educational system, which promotes segregation in a situation where girls are not allowed to mix with boys or to be educated alongside them… is bound to endorse traditional gender stereotypes that preserve male power, influence and economic dominance. And the impact of that is inevitably greater on women than on men.

These assertions paint a very informed view of how inequality operates in practice. These views are undoubtedly informed by personal experience, but there is an elusive personal admission hidden in the judgment, too:

One does not need to have been educated at a women’s college at a co-educational university, at a time when women were still prohibited from being members of all-male colleges, to take judicial notice of the career opportunities which women are even today denied, simply because they are prevented from participating in hierarchical male networking groups, whether in the social, educational or employment environment.

This is clearly an allusion to Lady Justice Gloster’s own lived experience, as she herself attended such an institution; at the time of her admission to Girton College, Cambridge, some colleges still continued to admit male students only. As such, this example provides a good example of a gendered experience directly contributing to the decision to dissent.

Concluding remarks

It is clear that some judges on the Court of Appeal are more likely to issue a dissent than their colleagues. In addition, it seems to be the case that, at least under certain conditions, Lady Justices are slightly more likely to issue a dissent than Lord Justices. This may, of course, be explained by a number of reasons: the prevalence of a number of particularly dissent-prone individuals on the Court, for example. Quantitative analysis, even when much more sophisticated than that which has been employed here can only, of course, tell us so much. However, when placed alongside some of the comments from certain judges such as Gloster LJ, it would seem that at least since some of the time, a judge’s own gendered experiences directly influence their decision to issue a dissenting opinion.

Lewis Graham, Cambridge University

(Suggested citation: L. Graham, ‘Lady Justices and Dissent on the Court of Appeal of England and Wales’, U.K. Const. L. Blog (15th Nov. 2018) (available at https://ukconstitutionallaw.org/))

7 comments on “Lewis Graham: Lady Justices and Dissent on the Court of Appeal of England and Wales

  1. angela ellis-jones
    November 15, 2018

    ‘at the time of her admission to Girton…some colleges still continued to admit male students only’. You should have made clear that not just some, but the overwhelming majority of Cambridge colleges at this time admitted male students only.When I was at Oxford in the late 1970s, before most colleges went co-ed in 1979, women still only had 22% of the places!

    • Lewis Graham (@LewisGrahamLaw)
      November 15, 2018

      Well, quite – I was not 100% sure exactly when Gloster would have attended Girton… “some” colleges the most favourable possibility…

      • Andrew
        November 16, 2018

        I believe Elizabeth Gloster was called to the bar in 1971, so she would have attended Girton in the late 1960s.

  2. Mr B J Mann
    November 15, 2018

    I stopped reading at;

    “women take *just* [my emphasis] eight out of forty-three places of the current Court of Appeal roster (around 18%)”.

    Yes, and 3 out of (3+22=) 25 is “just” exactly 12%.

    But isn’t the proportion of QC’s “just around” 12%?

    Meanwhile, as I understand it, in the 50s and 60s hardly any women went into law and almost all of those dropped out law for family reasons, leaving a pool of just around 0% to become any kind of judges, never mind at the top level.

    It’s the same as the “argument” for “equal” representation in the boardroom:

    Most women, if they have careers, have them in employment WHERE THERE IS *NO* BOARDROOM!

    Apologies for the CAPS but most people seem to struggle with this:

    There is no boardroom in schools n ospitals, social services, self employment, etc.

    Where there is a boardroom women tend to fulfil roles that have little or no representation on the board: research, marketing, human resources.

    Most of the (management) board are line managers, most of whom are men.

    Where there are women in the vicinity of the greasy pole to the boardroom most take a LOT of time out for family reasons, maternity leave, part time work, refusing late/ weekend/ overseas etc work as they are committed to their children, bot their company.

    While men put in a lot of extra time for family reasons, so that they can bring as much money home as possible.

    With the result that by their fifties men have done, on average, the equivalent of an extra ten years, and that’s ten years of higher responsibility work.

    So where is this 50% pool of top level female talent going to be magicked up from?!

    It can only come from scraping the barrel for much lower than top level female “talent” to make up the token numbers of women!

    • Andrew
      November 16, 2018

      Yes, “just”. Let me put it this way (and excuse me if my numbers are not up to date) but I believe we have 25 women sitting on the High Court and 73 men; and 8 women on the Court of Appeal and 30 men; and 3 women Supreme Court justices and 9 men.

      So, to achieve a 50:50 gender balance, we would only need to find another 24 women to sit on the High Court, and 11 for the Court of Appeal, and 3 for the Supreme Court.

      Are we saying that, today, there is no woman who might make a better High Court judge than any of those 73 men? That we could not find a couple of dozen women QCs or senior solicitors who might do just as good a job? The pool may not be very deep or wide, but it is significantly greater than the number of vacancies.

      While we have three men for every woman on the High Court, it is hardly surprising to see the same statistics being repeated through the Court of Appeal and Supreme Court, but again we only need a dozen or so women who are as good as the men to achieve an equal balance. (And let us not kid ourselves – on the whole, a woman will need to do better than a man to achieve this sort of position.)

      I could add that we have a population in the last census with 14% (one in seven people) with non-white ethnicity, but the first BAME judge on the Court of Appeal was only appointed last year. And he was born in 1964, and called to the bar in 1989.

      Then we could consider the percentage who were educated privately, or attended Oxbridge.

      We have been selecting our judges from a small pool of people, which almost certainly means we are missing people who could do a better job.

      There is a long way to go to achieve anything like equality of opportunity.

      • Mr B J Mann
        November 19, 2018

        “Let me put it this way (and excuse me if my numbers are not up to date) but I believe we have”, from when I actually looked into this during Ms Proudman’s feminist whingefest, MORE women than men, pro rata, at QC and judge level.

        MORE women than men on the appointment panel.

        Recently we’ve had female heads of the Home Office, CPS, and Met and even the London fire service and President of the Supreme Court despite the vastly smaller available pool of talent ACTUALLY available.

        And, anyway, I thought there was no difference between women and men, certainly not mentally or psychologically, so what difference does it make how many women we have.

        Well, I suppose the more highly paid, cushy, desk jobs we reserve for/ guarantee women the more mining, lumberjacking, deep sea fishing, demolition, sewer work we can guarantee men, eh?

        Thank you for your input of “liberal” logic. Was it honed with years of argument in court, or debate in the groves of academe I wonder? Whichever, I found your contribution enlightening and very helpful in understanding the progressive position you obviously know we should all be moving towards!

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This entry was posted on November 15, 2018 by in Judiciary and tagged , , .
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