In the same fortnight as it is reported that public pension cuts hit judges’ pensions and the three vacancies on the UK Supreme Court are filled by (yet more) white men, Lady Hale – the first, and so far only, female Supreme Court Justice – turned her attention to a number of ‘uncomfortable truths’ about judicial diversity including the (oft-unspoken) fear, that ‘a radical increase in the number of women and BME judges [would] lead in time to lower pay, lower status and ultimately to a less able judiciary’.
And yet, while this and other ‘demons’ were deftly slain by Lady Hale, it remains to be seen what effect the pension cuts will have on quality of judicial applicants and the status of the judiciary as a whole. But what of diversity? Will the change in financial benefits make any difference to the diversity of those opting to become a judge?
While Lord Judge has suggested that the proposed cuts could negatively impact on diversity, on another view, the future looks fairly rosy. After all, another ‘uncomfortable truth’, noted by Lady Hale in her lecture last week, is that the lower the status and pay of judges, the more women there are on the bench (see further data). With this in mind, it has been suggested that the number of women and other non-traditional candidates is may well increase over the coming years as they fill the gaps left by (commercial) barristers who decide it is no longer worth their while (in the absence of a tax free pension allowance) to join the bench.
Of course, anything that increases the stubbornly small number of women and BME judges is welcome. However, there remains a danger that this (potential) ‘victory’ for diversity will be somewhat hollow. The gains made would not be the result of the arguments for judicial diversity having been won, but because the traditional candidates, such as recently appointed, no longer wish to do the job.
On this view, Lady Hale’s call to ‘revive the argument for some special provision’ which would ‘enable the [judicial] appointing commission to take racial and gender balance into account when making their appointments’ is timely and welcome. After all, as Hale continues:
‘It may be a genuine occupational qualification to choose a black Othello or a female Desdemona, but could it be thought a genuine occupational qualification to bring a minority perspective to the business of judging in the higher courts? Would that really be such a bad thing? I think not.’