Skip to main content
OW3 Research

Breaking barriers – equality and diversity in the highest courts

British Supreme Court judges walk through Westminster in London to an annual ceremony at the start of the legal year
British Supreme Court judges walk through Westminster on their way to a ceremony
Professor Kate Malleson

Professor Kate Malleson

Professor of Law

In collaboration with

In 2013, despite twenty years of proposed reform, there was still only one female justice in the Supreme Court, making the UK the worst performing country for equality and diversity on the bench in the 34-country OECD.

In 2020, there are two female justices in the Supreme Court. All twelve justices are white. Researchers Malleson and Barmes proposed a model to encourage organisations to experiment with positive action. This would give candidates from marginalised groups equal opportunities in the higher ranks of the legal profession.

The present imbalance between male and female, white and black in the judiciary is obvious... I have no doubt that the balance will be redressed in the next few years... Within five years I would expect to see a substantial number of appointments from both these groups.
— Lord Taylor, Lord Chief Justice of England, 1992

The research

Barmes developed a model which envisages the law performing three functions:

  • Delineating the space within which organisations are free to experiment with positive action

  • Steering organisations that take such measures, procedurally and substantively

  • Capturing what is learned in different organisational settings for use by others
.

Malleson proposed that the idea of ‘merit’ is constructed rather than fixed.

She suggested that traditional definitions need to be re-examined so that a wider range of qualities and experiences are valued.

She suggested that members of underrepresented groups might be encouraged to apply for higher posts in the legal profession through a system of ‘taps on the underrepresented shoulder’.

Joint research

Together, Malleson and Barmes posited that the profession itself hampers the construction of a more diverse judiciary. They saw that existing diversity initiatives fall short due to design flaws:

  • ‘Soft target radicalism’ – choosing an easy target to meet in terms of diversity appointments, and considering the job done when it is reached
  • ‘Regulatory bind’ – the existing regulatory framework restricts the possibility of promoting a wider equality agenda).

They proposed that the regulatory binds on the Judicial Appointments Commission and other relevant public entities should be loosened
.

Is the UK the only country in the Organisation for Economic Co-operation and Development  (OECD) that does not have excellent women lawyers fit for our highest courts?
— Professor Kate Malleson

How has policy shifted?

In 2011/12, as part of the Equal Justices Initiative (EJI), Malleson and Barmes prepared a submission to the House of Lords Constitution Committee Inquiry on Judicial Appointments. It proposed changes designed to increase diversity in judicial appointments including:

  • Applying the “tipping provision” in Section 159 of the Equality Act 2010, which allows an employer to treat an applicant or employee with a protected characteristic (for example race, sex or age) more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role

  • Extending the remit of the Judicial Appointments Commission (JAC) to Deputy High Court Judges

  • Removing the President from Supreme Court Appointments Commissions when selecting a successor
.

All three recommendations are now included in the Crime and Courts Act 2013.

Advising policy-makers on diversity initiatives

The following groups and individuals have met with Malleson and Barmes and other members of the EJI, or requested their research, in order to gain information on promoting equality and diversity in the judiciary:

  • The Advisory Panel on Judicial Diversity set up by the Ministry of Justice (‘MoJ’)

  • The chair of the JAC

  • Senior officials from the MoJ with responsibility for taking forward the report of the Advisory Panel Five of the six most senior female judges in England and Wales.

  • Members of the judiciary (including the Head of the Judicial College) and governmental bodies.

Direct impact on new guidelines for the appointment of judges

Malleson’s research on international court appointments has also had a direct impact on reforms to the process by which judges are appointed to the Court of Justice of the European Union (CJEU). Research by Malleson and Philippe Sands, Professor of International Law at UCL fed into the rules and guidelines for the operation of the panel.

The International Criminal Court (ICC) has established its own advisory committee on nominations, a development which was in part influenced by this research.

Informing the wider equality debate

As founder members of the EJI and of the AHRC research network, Promoting Equality and Diversity through Economic Crisis (PEDEC), Malleson and Barmes’ research has also informed public and policy understanding of equality and diversity issues more widely.

Schools, institutes and research centres

School of Law

The School of Law has as its central focus the role of law and its institutions in contemporary international society. It is divided into two organisational units: the Department of Law and the Centre for Commercial Law Studies (CCLS).

Criminal Justice Centre

The Criminal Justice Centre (CJC) provides a forum for research and learning in all aspects of criminal justice. Our members are drawn from both the legal profession and academia.

Centre for Research on Law, Equality and Diversity

The Centre is a forum for academics, practitioners, judges and policy-makers interested in the role of law in promoting greater equality and diversity in public and private institutions.

Back to top