The UK Supreme Court has never melded into a collective endeavour because of the lack of diversity among its justices, according to Baroness Hale, the only woman among the court’s 12 judges. The lack of diversity was a significant issue with constitutional implications. It meant the justices had failed to take on board differing perspectives in coming to their judgments.
She told the seventh hearing of the Lords Constitution Committee enquiry into judicial appointments that diversity was crucially important to courts such as the Supreme Court and Court of Appeal since their judges acted as a collective in coming to decisions. “The Supreme Court has this quality as a collective; the same applies to a lesser extent to the Court of Appeal … In disputed points you need a variety of perspectives and life experiences in order to get the best possible result. You aren’t going to get the best possible results if everyone is coming at the problem from the same point of view.”
She said that “the Supreme Court has not melded itself into a collective whole, into a collective endeavour. It would be easier to do that if we were less a bunch of individual stars”. It was not very good at allowing each Supreme Court justice to put forward arguments from different perspectives and arguing them through to come to a collective view.
She considered the lack of diversity was a constitutional issue because “everyone should be able to see the courts as their courts” belonging to all parts of society, not just some. The courts should also be seen as using talents from all areas but there was “an unspoken officer class mentality about who gets what jobs”. The Supreme Court should have a range of perspectives to bring to bear so the best person for the job is the person who can best add to the collective.
Asked whether diversity actually affected the outcome of judgments she said she had been sceptical of such views but the more she read about the issue and the more she experienced it, the more she felt it was true and true of any area of law.
‘If you are in a group trying to come to a common answer different people will put in different things to that debate and hopefully produce a common answer. We are not very good at it at the moment’ – Baroness Hale
She recommended that the committee members read a book resulting from the Feminist Judgments Project in which feminist academics looked at famous cases “from all round the areas of law from a feminist perspective, sometimes reaching the same conclusions but sometimes reaching different conclusions”. This showed that “where you started from can have an effect on where you end up”.
Lord Crickhowell pressed her on why she thought different perspectives would produce different interpretations of the law. Hale noted that cases only got to the Supreme Court because they are difficult with at least two sides to the question. “Everybody comes to that case with a set of values and a set of perspectives which may lead you to take a different bits of the material to come to an outcome.” With the Supreme Court, judging in panels: “If you are in a group trying to come to a common answer, different people will put in different things to that debate and hopefully produce a common answer. We are not very good at it at the moment. I wish we were. I wish we could each put in a different way of getting to a particular answer and argue things through amongst ourselves a bit more.”
She said there were at least two occasions when this had been an issue but refused to go into details. However one will have been the case of R (on the application of McDonald) v Royal Borough of Kensington and Chelsea in which other Supreme Court judges criticised Hale for her minority judgment backing the continued provision of night time care for an elderly woman with mobility problems leaving her unable to visit the toilet at night.
Lack of progress
The second witness, Baroness Neuberger, who chaired the Advisory Panel on Judicial Diversity in 2009, agreed that diversity made a difference to outcomes of cases and had been given a strong impression of that when talking to the President of the Canadian Supreme Court.
Baroness Jay, chair of the committee, noted that she had requested research on this issue at the first hearing into judicial appointments but understood there was not much of it about.
Neuberger said there had been much less progress on diversity than she would have hoped since the publication of the Advisory Panel report but she was pleased that the Judicial Appointments Commission had taken one recommendation on board. The criteria for merit now included “an ability to understand and deal fairly and an awareness of the diversity and communities the courts and tribunals serve”.
Committee member Lord Renton said that, as someone who was not a lawyer, the hearings had caused him surprise. “All that we hear amazes me because I didn’t know you were in nearly so much trouble or nearly so worried about why aren’t there more women judges or … what about other coloured judges and so forth.” It raised the issue of how you judge merit. “You are bound to be affected by how people get the right tune with you and not someone else.” He asked whether the criteria should be firmer and “command” that the judiciary must take account of diversity in appointments.
Lady Hale said: “I think that’s in there anyway so you don’t have to change it but it might be a good idea to change it because there are people who don’t share my view.” It might be better to spell it out rather than not.
Neuberger accepted that too many people appoint in their own image. As chief executive of the King’s Fund she found “an astonishingly large number of middle class white and rather bossy women were being appointed. I can’t think why that would be.” She added: “I think that is precisely what has been happening with the judiciary and it has changed because of huge efforts at what people call the lower levels of the judiciary. But they will all talk about being below the salt … they do feel they are a junior branch, and it is OK to be diverse but that doesn’t apply further up.”
Note: This hearing is available as a webcast here
A comment on this hearing by Harvard Law School Fellow Jennifer MacLeod appears in the Guardian
Reports on all the Constitution Committee hearings on judicial appointment so far can be found on the Alrich blog. The sixth hearing with commentry on the issue of diversity is here. The latest hearing with Lord Justice Toulson is here.