Women in the judiciary – is there an unconscious bias?

Kylie Morsley & Marianne Wright
08 Mar 2017
Women in the judiciary – is there an unconscious bias?
The Supreme Court. Photograph: David Ford

This article by Kylie Morsley & Marianne Wright is taken from the August 2013 edition of Safety Management 

The long running debate about the number of women in the judiciary was re-sparked by the appointment of three male judges to the Supreme Court in February 2013.

It has been suggested by Lord Neuberger, president of the Supreme Court, that we may all be suffering from an unconscious bias against women and a subconscious expectation of a judge having male characteristics. He has expressed concern that positive discrimination in favour of women could be patronising, but suggests that appointing more part-time judges may help redress the balance.

The baroness Hale is currently the only female judge in the Supreme Court. In February this year she gave a speech entitled “Equality in the Judiciary” in which she appeared to support positive discrimination in favour of the appointment of women judges. To borrow some statistics from her speech: in the ordinary courts 22.5% of judges are women, 15.5% in the High Court and 10.5% in the Court of Appeal.

Looking at the countries in the Council of Europe, the average is 52% men and 48% women. By comparison, in England and Wales, only 23% of judges are women. In a study of female judges in the highest courts of the 34 Organisation for Economic Co-operation and Development (OECD) countries, the United Kingdom came last with 8%.

Could there be something to Lord Neuberger’s subconscious expectation argument? Do we expect our judges to be white, male and privately educated? Do those making the appointments look to appoint people in their own image, thereby perpetuating the existing gender ratios?

There is a wealth of legislation covering sex discrimination and equality, and most workplaces now have extensive policies on diversity and equal opportunities.

The Supreme Court has its own Equality and Diversity strategy. It is hard to believe that these issues were not somewhere near the forefront of the minds of those involved in the judicial appointments.

The advertisement for the positions stressed that the selection commission was “anxious to attract applications from the widest field”. So perhaps the men who were appointed did get there on their own merits – and if they were the best candidates for the job, should they miss out just because they are male?

Of course Supreme Court judges do not just appear out of the blue. There is a long path leading up to appointment and to change the gender imbalance at the top it could be that the entire system needs to be looked at from school to university, right through to the pool for appointing higher court judges, which largely consists of barristers.

Arguably a great opportunity to redress the balance was lost with the appointments in February. However it was announced on 28 March that three women judges were to be promoted from the High Court to the to the Court of Appeal, alongside seven men, and on 28 June Lady Hale was appointed as the deputy president of Supreme Court.

This is encouraging news for those who wish to see a more balanced judiciary.

Kylie Morsley is an associate at Thomas Eggar LLP. Marianne Wright is a trainee.