THE JUDICIAL APPOINTMENTS COMMISSION CONSULTATION - "Women in the Legal Profession and the Judicial Appointments Process"

This consultation did exactly what it says on the tin.  The consultation was to determine the issues and impediments to women entering, or attempting to enter, the judiciary.  It focused on some key issues facing women in the legal profession generally.

Background

Her Majesty’s Commissioners for Judicial Appointments identified that a key challenge facing the Judicial Appointments Commission (JAC) from April 2006 is to increase the diversity of those appointed to judicial office whilst maintaining and enhancing the principle of selection on merit. A diverse judiciary is more likely to be superior to a non-diverse judiciary, especially if it demonstrates greater insights and understanding of diversity issues. The argument for diversity is a substantive one. A judiciary that is reflective of society is consistent with democratic principles and the rule of law. It will improve the quality of judicial work and lead to greater public confidence in the administration of justice.

Although the numbers of women judges has increased in recent years (we note that the proportion of judges who are women increased from 9.4% to 15.8% in the ten years until 2004) the judiciary is still predominantly male.  

The JAC identified a number of factors that have caused them to conclude that an integrated strategy is required to redress the gender imbalance in the judiciary. For example, it is reasonable to assume that those likely to be ‘in the field’ for judicial appointment are practitioners with between ten and nineteen years’ experience. DCA statistics suggest that the proportion of women amongst those entering the legal profession between ten and nineteen years ago ranged from 46.6% to 52.5% (solicitors) and 30% to 43% (barristers). However, only 28% of those appointed to judicial office (and 21% of those appointed to the mainstream judiciary) in 2002/03 were women.

The JAC identified two likely major contributory factors:

 The attrition rate amongst female practitioners is greater than that amongst male practitioners. In 2002-03 29% of barristers and 37% of solicitors with between ten and nineteen years’ service were women. Consequently the proportion of practitioners effectively ‘in the field’ for judicial appointment who are women is significantly less than the proportion of those entering practice at the relevant period.

26% of applicants for judicial office (24% of applicants for the professional judiciary) were women. This suggests that female practitioners (especially female solicitors) with the requisite years’ experience are statistically less likely to apply for judicial office.

They noted that the success rates of men and women applying for judicial office are, in general (though with some notable exceptions), broadly comparable.

The full text of the discussion paper can be found here.

TSG Response

The full text of the TSG response to this paper can be found by clicking here --> TSG CONSULTATION RESPONSE

The TSG agrees with the contention that a more diverse judiciary would be superior to a non-diverse judiciary. The principles of natural law demand that the judiciary are reflective of the people they represent, which fall in with the nation’s own democratic principles.

The TSG is committed to ensuring equality and diversity throughout the profession, and would like to state that it does not support a woman-focused push into the judiciary in isolation. The TSG supports a policy of diversity and equality in the profession as a whole, and would like to see similar papers centring on other minority groups. We note that the Commission for Judicial Appointments is looking at taking forward other work into the position of ethnic minority practitioners, and would encourage that this is done.

The Group is aware of the current spectrum of diversity within the judiciary. The traditional view of judges is that the majority are white, middle class and male. This is a situation that is broadly reflective of the profession as a whole at the time that these judges were in practice. The current situation, reflected by those currently at university studying law (LLB or BA) or on the Legal Practice Course, is that the larger proportion of people entering the profession at the junior stages are female. This impacts on the pool of those who will be eligible for judicial appointments in the future. The gradual increase in the role of women in the profession will create a culture change over time in itself, meaning that the position with regard to female judges will also change. For this reason, the TSG is not of the opinion that the challenges to be overcome in developing a more diverse judiciary are as intractable as they have been in the past. However, there is a danger that if culture and practices are not changed then the percentage of women leaving the profession could go up exponentially. This would lead to a scarcity of judges rather than a more diverse profession.

It is essential that whatever strategy is adopted regarding judicial appointments in the future identifies any issues that may impact on diversity. For this reason, we are of the opinion that various sectors of the profession should not be missed out in such a study. The paper we were asked to respond on was very Bar focussed, and where solicitors were considered they were specifically City-based and not in the Regions. This is a limitation of the paper, as the factors affecting female solicitors in the Regions are different from those affecting City lawyers. The operation and culture of these firms is just as important in assessing the issues affecting diversity of the judiciary. Although the above was accepted in the paper, it does severely limit its scope and effectiveness.

The TSG agrees that discussions are needed to properly address the obstacles to a fully diverse judiciary, and further that this paper is the start of this discussion. The many issues that apply equally to men and women looking to balance their work and other responsibilities should not be overlooked, and their impact on the legal profession not under-estimated. These were not covered by the paper, and should be investigated on a lager scale.