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Very sad news. Also leaves the Supreme Court without a justice who specialises in Family law (having had 3 a year ago - both Lady Hale & Lord Wilson retired this year as well). Dame Julia Macur or Dame Eleanor King (both Ladies Justices of Appeal) will be favourites if they apply https://twitter.com/dinahroseqc/status/1322848221471932417
As UK Supreme Court faces drop from 3 female Justices to none (or one, depending on who is appointed to replace Lady Black), how could it possibly in the next 10 years get into the uncharted territory of being half (or even 1/3) female? Some observations:
First, of the 3 women to be appointed to sit on the UKSC, 2 (Baroness Hale & Lady Arden) were appointed as judges before 31 March 1995, meaning they could serve until the age of 75, rather than the reduced mandatory retirement age of 70. Lady Arden wasn’t *appointed* until 71.
Reducing the mandatory retirement age has been a double-edged sword for recruitment of women into the judiciary. It improved the ‘dead man’s shoes’ effect (insufficient vacancies to change), but it also stops those who start later or take time to have children reaching the v top.
If you get called to the Bar at 23 (v. young), take silk in 20 years (median), do 10 years as a QC (not long to make serious money) before getting to the High Court Bench at 53, you have only 17 years left. You won’t get UKSC/Head of Division with less than 4 years left to serve.
So appointment to the Supreme Court or HoD must come by 66, giving you 13 years from appointment to High Court to reaching the top. Possible: 8 years as HCJ (enough time to be Presider/JIC of List), 5-6 as LJ (inc a leadership role for a year or two), but that’d still be fast.
If you get called to the Bar later, or take 2-3 years out to have children, or take silk later, or apply to the Bench later, you need to be Vos/Sharp/Leggatt quick about the judicial stages. And yet that is many women at the Bar. So raise the retirement age to 75 for UKSC/HoDs.
Second, it was always assumed that direct appointment would be an aid to diversity. Nobody doubts the qualities of Lords Burrowes or Sumption, and if Lords Reed, Hodge, Lloyd-Jones, Kitchin, Sales, Briggs, Hamblen, Leggatt all left, the commercial/civil law would be well tended.
Given the power to appoint directly from the Bar is there, it should not only be used to appoint staggeringly-brilliant commercial silks who happened not to be salaried judges. It should be used to increase the diversity of the Court: there are no shortage of suitable candidates.
Third, this is a pipeline issue. The real problem I suspect is less about appointment panels, it’s the availability (and *willingness*) of candidates to apply. It was rumoured that no female LJ from the English CA applied last round: I tried (in 3 tweets) to guess as to why: https://twitter.com/greg_callus/status/1154145632480874504
Which highlights why direct appointment from the Bar, or other legal professions, or from legal academia, is going to be necessary. Even at very low levels, the UK Supreme Court is already close to exhausting female candidates from its feeder courts. But the bottleneck is lower.
Judicial diversity has been a genuine priority for close to a decade, and it has improved massively from a very low baseline. The biggest inhibitor in a 50-50 senior judiciary in E&W is the shortage of female silks. That reflects much bigger structural problems in the English Bar
Again, the problem is no chauvinists on the QC Appointments panels. The problem is (1) how many female juniors are (a) able to apply and (b) choose to apply (reflection of how practices develop post-10-years-call); but also (2) is QC still a good idea at the criminal/family bar?
There are now many areas of the Bar, especially those which are publicly-funded (criminal, family) where taking silk could have serious adverse financial consequences. Just about the only good reason to do it might be so as to be able to apply to the High Court Bench in time.
There is a serious conversation to be had about the norm of High Court Judges being either (1) QCs; (2) salaried judges; or (3) Treasury Devil before appointment. Only a handful have not been one of the three (Falk, Murray, Collins Rice JJ: all appointed in the last 2 years).
Fourth, and the conversation will come up, is quotas. I’m generally not in favour of them, but there is a different case when its the UKSC: (1) because it is looking at law in a wider social & political context to a greater extent than even the appellate courts below are able to;
(2) because it already has quotas (formally knowledge of the law of each of the jurisdictions of the UK: currently 9 E&W; 2 Scottish; 1 Northern Irish; informally, reflecting different practice areas, currently a bit Chancery-heavy & rather light on E&W criminal/family expertise)
One major caveat, however, is that judicial appointment is in general crisis. There are fewer applicants from the Bar who are eager to make an irreversible career change, give up 80% income, work public sector conditions with less good pension than before, travel more etc etc.
The days of doing it for the knighthood/damehood are gone. There is a draw of public service, and a different form of immortality in the law reports, but the inducement of the Bench is weaker than ever. If you make it easier to go direct from Bar to UKSC, it weakens yet further.
Direct appointment has to be part of the answer on UKSC diversity, but it’s not a cost-free option. If we normalise being a well-paid silk for 25 years, miss out the Crown Court trials on circuit on 20% income for a decade, apply direct to the UKSC what does that do to the HC/CA?
There are more Circuit Judges being elevated to the High Court Bench than ever before. This is a good thing, esp. in terms of creating a pipeline of criminal judges (I think Fulford & Holroyd LJJ are the only appellate judges who were criminal practitioners; Edis LJ will be 3rd)
In essence, this is a plea to think about judicial recruitment - including diversity - ‘in the round’. The Supreme Court only hears 60-80 cases a year: most appeals that govern changes to the law, especially in criminal/family law, are in the High Court and Court of Appeal.
