Where are the women judges?

I remember chatting to a few Erasmus students during a module in my first semester of Final Year Law. It was a module about Understanding Human Rights, and we had just finished the seminar for that week: it had been focused on Feminist Legal Theory, rather ironic given the question that was soon posed to me.

“What do you need to do to become a judge here, Leah?” One of the (woman) students enquired of me. She had just finished outlining how the judicial system of appointment works in her country of France. I recall that I paused, and bit my lip.

“Well, probably be a man to begin with,” I answered back slowly, and with a sigh. She looked at me, as the other students around me – the Northern Irish ones, anyway – laughed. I soon joined in with the laughter.

You see, we were not laughing at the Erasmus students. (Most definitely not.) We were not laughing at the question. We were laughing, sarcastic, frustrated laughter, at the judicial system in Northern Ireland. A judicial system which is sadly lacking in gender parity, for women have scarcely any representation.

In fact, it will soon be a year since the first two women in the history of the judiciary in NI were appointed to the NI High Court. Upon being sworn into office, Denise McBride QC and Siobhan Keegan QC were the first women to be appointed to the position since the High Court was established in 1921. I remember hearing the news, and feeling a weird sensation of pride and exasperation: pride that these talented and experienced women were being recognised, and exasperated at the fact that it had taken so long for women to be appointed in the first place.

Their appointments were welcomed by the Lord Chief Justice, Sir Declan Morgan, who established the Women in Law group in 2012. He said the appointments made him feel as though “the hands of history” were on his shoulder:

 “This event was not just the product of what happened in the last couple of years, but the product of efforts made by both (legal) professions and the judiciary to ensure we have a judiciary reflective of the community and based on the principle of merit…This sends out a message that the judiciary are interested in getting the best people for the job and there are no barriers.”

This historic appointment occurred before my conversation with the Erasmus students. I still feel justified in my sardonic answer: two women judges on the NI High Court in its entire history does not confirm this legal glass ceiling has been broken.

After all, senior judicial ranks in NI have been a veritable citadel of male dominance since 1921. Moreover, this was not just confined to the judiciary. For much of that time, it was the status quo for the rest of the legal profession, too. Incredibly, during the first 50 years of the Bar Council in Northern Ireland, a mere eight women were called to the Bar. Of those eight women, only three went on to practice.

Nowadays, it might just be a case of the tables turning. There is said to be more women qualifying as barristers and solicitors than men in NI. In addition, there are also five female County Court judges, out of a total of 18. But when it comes to the most senior judicial positions, until the 23rd October 2015, all of those occupying the positions of Appeal Court and High Court judges were men.

Given the legal environment I am used to seeing, it did not come as a surprise to read that according to a comparative study of judicial systems across Europe, the UK has one of the lowest proportions of female judges within the judiciary.

The report by the Council of Europe, published last week, made for sobering reading for one from Northern Ireland. The report found that the judicial systems with the lowest percentage of women among professional judges were: Azerbaijan (11%), Armenia (23%), Northern Ireland (23%), Scotland (23%), England & Wales (30%) and Ireland (33%). To put the figures for Ireland, North and South, into perspective: the Europe-wide average for women representation among the judiciary was 51%.

By comparison, the European Court of Human Rights has a relatively good record on gender diversity compared with most international courts. Currently 17 out of the 47 ECHR judges are women (36%).

The confirmation of the gender imbalance in British courts comes days after the Justice Secretary, Liz Truss, pledged at the Conservative party conference to improve diversity in the legal profession. She said:

“Currently, only one in seven of QCs and one in three of partners in law firms are women. Fewer than one in 10 judges come from ethnic minorities. Only a quarter went to state school. This is modern Britain – we can do better than this.”

The report is the latest in a series of regular reviews of the quality, cost and efficiency of justice across the 47 member nations of the organisation.

This begs the question of why is NI/the Republic of Ireland/the UK struggling to maintain sufficient gender representation (not to mention BEM representation) in comparison to their European neighbours? To be fair, an explanation may be drawn from the differences in the legal systems across Europe, namely whether the jurisdiction is a common law or civil law jurisdiction.

You see, NI/the Republic of Ireland/the UK operate as a common law jurisdiction, whereas the majority of European states have a civil law jurisdiction. Common law procedures are significantly different from most of the continent, where judge-led inquisitorial systems are dominant. In most of Europe, lawyers may choose to specialise as judges at the beginning of their careers rather than towards the end. A consequence of this is that women are more easily recruited upon graduation and qualification. Arguably, this ensures women may be judges before they consider whether to start a family, that potentially career development-restrictive decision.

The report went on to say that across some states:

“the difference is explained by the relatively recent feminisation of the judiciary, whose effects are currently more noticeable [in the lower courts] than at second instance and in the supreme court. In Montenegro, female judges are a majority at all levels, as they are in Bosnia-Herzegovina. In Romania [where 74% of the judiciary are female], the percentage of women increases with each instance.”

I mentioned the lack of representation for those from a BEM background. The Justice Secretary had raised this during the Conservative Party conference. She noted only one out of the 12 justices on the UK Supreme Court, is a woman. Moreover, none of the UK Supreme Court justices are from a minority ethnic background. Whilst the Justice Secretary raised this issue, she did not propose any measures to rectify the problem and ensure better representation within the judiciary.

Overall, the Council of Europe’s European Commission for the Efficiency of Justice report found that a glass ceiling does exist, and does blocks access to the most senior judicial positions: ‘on the whole, there is parity in the numbers of male and female judges and public prosecutors’.

I think back to that conversation I had with my fellow students a year ago. I think about the historic moment in the NI judiciary which occurred around the same time. Parity cannot be said to be present in the NI legal system. It is something to be worked on going forward. A glass ceiling exists, and it is about time that it began to crack.

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