The thorny issue of gender inequality within the legal profession has always been a bug-bear for anyone coming to the profession. The division between male and female counterparts at the higher end of the scale has always been tipped in the favour of men. We are far beyond the old excuses that women are new to the profession. Since men have dominated the ranks for such a long period, the view that they possess the most experience necessary to fulfil the higher echelons is a fallacy. Women have been an integral part of the profession for a sufficiently long period that shows the old excuses are no longer appropriate, and indicates that there is a reluctance to promote women to the top chambers.
The number of legal professionals has taken a sharp increase in recent decades. Law Society figures show that there has been a 300 per cent increase in solicitor’s numbers in the last 30 years. From 38,000 practicing solicitors in 1980, to nearly 120,000 solicitors holding a practicing certificate in 2011. Of the number of practicing solicitors, 47 per cent are female. This statistic is not overly detrimental to the statement that women are unrepresented, a three per cent margin can be forgiven, especially in these more modern and equalising times. The number of barristers however, is also on the increase, with approximately 15,000 practicing in England and Wales. Of that number, female advocates account for only 35 per cent. A nearly 1 in 3 contrast is an unacceptable level. Woman have accounted for more than half the entrants to professional qualification such as the LPC and BPTC (formally BVC) since 1993.
The difficulty with such a low level of female barristers is that traditionally, it is from the ranks of barristers that judges are appointed. Subsequently from the ranks of the bench, the top sects of the judiciary, such as High Court judges, Law Lords and Supreme Justices, are selected. The figures for female judges are around 1 in 4. Only 18 of the 106 High Court Judges being female, increasing to 21 women judges out of a total of 148, if you include the Court of Appeal. Only recently with the promotion of Lady Hale, has the Supreme Court taken its first steps to female inclusion, with 1 in 12 Supreme Court justices being female.
The promotion of Lady Hale to the Supreme Court is welcomed as a step in the right direction. Lady Hale is now the highest ranking female judge in English legal history, but it has taken far too long for this to happen. Britain appointed its first female Prime Minister in 1979, showing public opinion and support being over 30 years ahead of the male dominated ranks of the judiciary. With hope, and the new influence of a woman at the top, females in the top positions will start to increase.
The House of Lords’ constitution committee last year warned that inequality on the bench was undermining the public’s confidence in the courts. There was clearly a policy gap to be plugged, and some progress has been made. The government has recently introduced a ‘tie-breaker’ provision; this means that in the event of there being two judicial applicants of equal ability, the one from a less well represented minority should be given the position. This positive discrimination is a welcome introduction, but in the 20th century should not really be necessary.
The tie-breaker provision however, has yet to affect the top end of the judiciary. The news that Sir John Thomas is to succeed Lord Judge as Lord Chief Justice of England and Wales, shows how inadequate some of us were in envisaging that the job would go to Lady Justice Hallett. No doubt Chris Grayling would have favoured the appointment of a woman as Chief Justice to show the Conservative commitment to gender equality. That is not to say that Lady Justice Hallett would not have been a fine choice on her credentials alone. It is a role where some believe she was not on a level footing for the tie breaker scenario to come into play.
Joshua Rozenburg of the Guardian set out Sir John Thomas’s career history in a recent article, and commented that, ‘Sir John Thomas first sat as a high court judge in the intellectually demanding commercial court. A lord justice of appeal from 2003 to 2011, he then became president of the Queen’s Bench division – in effect the second most senior judge responsible for criminal appeals… In that role building a back catalogue of superbly reasoned judgments that Lady Justice Hallett was simply unable to match.’
We should not forget however, that Lady Justice Hallett chaired the public inquiry into the 7/7 bombings, and her career has been a procession of high pressure roles. She was the first woman to chair the Bar Council in 1998, having been vice-chair in 1997. She became a full-time judge of the High Court in 1999, and was promoted to the Court of Appeal in 2005. In 2011 she began a four-year term as Vice-President of the Queen’s Bench Division. Her credentials speak for themselves and her appointment would have been a triumph.
It seems therefore, that the battle to equalise the legal profession across the board is still in its infancy, and there will be a long road ahead before we see a 50 / 50 split of professionals at the top. For now and perhaps not before the end of my lifetime, women will have to continue the good fight. With the balance in the profession currently still in favour of men, and as hard as this may be to accept, it is not because women are not good enough. Nor is it because males are prejudiced against them. It is because, with most of the applicants for the top positions being male, the chances that a woman being successful is statistically small. The road to change at the top will have to start right from the very bottom.
- Sir John Thomas named as next lord chief justice (guardian.co.uk)
- Choice of Sir John Thomas as lord chief justice sees tradition prevail | Joshua Rozenberg (guardian.co.uk)
- Press release: Appointment of the Lord Chief Justice of England and Wales (gov.uk)
- Our New Lord Chief Justice: A Barrister’s Perspective (weekwoman.wordpress.com)
- New Lord Chief Justice is confirmed (bbc.co.uk)