Baroness Hale on Judicial Diversity

In a webinar hosted by University College London Laws, chaired by Dame Hazel Genn and attended by over 2,000 viewers last evening, Dame Brenda Hale spoke about her career and meteoric rise through the judiciary to become the first woman President of the United Kingdom’s Supreme Court.

Asked why judicial diversity was so important, Lady Hale said that, firstly, the law and the courts should be there for everyone, and everyone should be able to feel they were their courts; not a small group of elite, white men laying down the law for the rest of society.

The more the courts could reflect society, the better that was.  They had, of course, to be good lawyers and principled people but that was the baseline of establishing democratic legitimacy.

The second matter was optics:  how things looked was increasingly important.

The values of the system were justice, getting the right results, fairness, equality, treating everybody equally – which did not mean treating everybody the same.

If the bench was not demonstrably treating everyone equally because of how it looked, that was unfortunate.

Then there was equality of opportunity.  We knew how young women were starting out as lawyers and had been for decades, but still they were not equally represented.  Some of that had been a systemic problem to do with the appointment of judges.

Maybe decisions would be improved as a result.  Not all decisions, perhaps, and not always, but it would help the judges to have a greater appreciation of the context in which decisions were made.

The greater diversity, the better the decision was likely to be.  Where collective decisions had to be made, they were better if there was a diversity of thinking, background and experience.

There needed to be a range of backgrounds among men as well as women.

Even sitting alone, one’s presence in the court and amongst other judges could be important.

When Lady Hale was a trial judge, it was custom for judges to lunch together.  It was a shame that it did not happen so much today.

But if you were a lone woman around a lunch table with male judges, sometimes casual sexist or racist remarks were made from time to time.  It gave one an opportunity to call it out or make others feel uncomfortable, and that was a good thing.

There were cases when the presence of a female judge made a difference.  Lady Hale cited the Montgomery case as a prime example.

The case concerned catastrophic injuries to a baby at birth.  The mother was an insulin dependent diabetic.  She was a small woman but the baby was large.  The baby’s shoulders became stuck and there was then a major obstetric emergency.

There was a tendency by the male judges in the tribunal to focus on the risks to the child (which were not huge), but the risks to the mother were horrendous.  That did not seem to be something that loomed large in the thinking of the male judges.  The presence of a lady judge did make a difference on that occasion.

Baroness Hale underlined, however, that she was not in favour of positive discrimination in the way that you may lose a well-qualified person in favour of a less well-qualified person.

You wanted the best qualified people to do the job.  Such a policy would be wrong both to the better and less well-qualified people.

A separate question was how we judged the best qualified.  We needed to do a lot more work on that.

Quotas were not a good thing.  Targets, on the other hand, were.  Publishing statistics about diversity in the judiciary, watching trends were very useful.  A lot was being done to improve matters without going over to positive discrimination.

Another matter to be tackled was who got what sort of judging job.  Attitudes were deep-rooted and hard to attack.