The British justice system: a fair structure for women?

Britain has one of the lowest percentages of female judges in Europe.  What are the consequences of this disparity for the justice system, and what must be done to make British justice gender equal?

Heather McRobie
4 July 2013

Late last year a report from the Council of Europe examining the ‘efficiency and quality of European justice’ found Britain to have one of the lowest percentage of female judges in a European country, a finding that dealt a blow to the judiciary’s moves towards greater diversity in its ranks.  The problem of gender inequity within the structure of the judiciary worsens in the higher echelons: according to a report by the Fawcett Society, in 2008, just over 10% of the 109 High Court Judges were women and just three of the 37 Lord Justices of Appeal were women.

The issue of the relative absence of female judges is both an important issue in itself and raises the broader question of gender equality in the British justice system.  On this broader question there are two core, interrelated, issues: how women are treated by the justice system, and gender equity within the structure of the judiciary itself.

As with other key issues concerned with gender equity it is worth stressing that this is not a ‘male versus female’ issue but rather an issue that a system that entrenches a gender hierarchy and does not represent or accommodate to the multiplicity of experience is damaging to all who are affected by it.  A more gender equal judiciary would be a more just judiciary, not just in terms of removing any vestiges of direct discrimination that currently prevent the best person from occupying a role, but also in terms of better serving all those who use or are involved in the system. 

There have been concerned efforts over the last decade to address gender inequity in the judiciary: in 2011 the House of Lords Constitution Committee launched an inquiry into judicial diversity after two new judges – both white men – were appointed to the Supreme Court.   Similarly, in 2009 judges in England and Wales held their first conference to attempt to increase the number of women and ethnic minority judges.

Yet despite these initiatives many of the criticisms of a gender-unequal judiciary that came to the fore of public debate after Helena Kennedy’s ‘Eve Was Framed’ could still be levelled at the institution today.   Arduous working hours and a reliance on contacts that veer close to ‘old boys networks’ are de facto barriers that stand in the way of many qualified and capable women becoming judges, however many official declarations there may be that attempts are being made to make the process more inclusive. As noted in an article co-authored with Samir Jeraj last year, the reliance on choosing judges primarily from barristers over solicitors – a practice that is slowly shifting – means privilege bias ‘transfers over’ from the lack of diversity amongst barristers into a lack of diversity amongst judges, given the lack of diversity in the pool from which judges are chosen.

The idea of ‘cultural climates’ working against gender diversity may sound nebulous, so it is worth also focusing on specific instances that could be indicators of the kind of cultural residue of sexism that prevents women from advancing in law.  The sexist abuse hurled at female participants in a debating competition at Glasgow University last year were shocking reminders of the kind of overtly gendered hostility that young female students may (however occasionally) encounter that may deter them from pursuing a career such as law.  Gender equality in the legal profession as a whole has far to go, as the situation has changed little since 2008, when only 16% of partners in the UK’s biggest law firms were women.

But the lack of diversity in the higher echelons of the judiciary is not merely a concern for those in the profession who wish to advance fairly in its ranks.  There is evidence suggesting that the fact that judges are drawn overwhelmingly from such a narrow section of society means that justice is not effectively served to much of the population, as prejudices and a lack of familiarity with the life experiences of many of those caught in the justice system lead to unsympathetic or problematically clumsy handling of complex human issues.  A 2008 book Sexual Assault and the Justice Gap revealed from interviews with judges that stereotypes on the part of judges may continue to influence rape trials in Britain, particularly in terms of the survivor’s sexual history.  Similarly, the Fawcett Society’s 2009 report on the criminal justice system identified workplace practices and attitudes in the justice system were ‘frequently failing to take into account the different needs of women’ and thus failing women who come into contact with the justice system, particularly female victims of violent crime.

As the Black Women’s Rape Action Project and Women Against Rape wrote for openDemocracy last week, the recent shocking abuse case involving five men in Oxford also revealed how the criminal justice system continues to discriminate against working-class girls and perpetuate an institutional bias against rape victims that make it hard for many young women to access justice – in the Oxford case some girls were reportedly threatened with arrest when they tried to report their abuse, their repeated attempts to seek help dismissed, belittled and ignored due to stereotyping by police and social workers.

There is a further set-back that builds on the existing shape of gender inequity in the justice system – how the government cuts since 2010 negatively impact on access to justice, with women particularly negatively affected.  Just as domestic violence shelters are closing at worrying rates, dozens of special domestic violence courts that provided access to justice for those affected by abuse are expected to close over the next three years.  On top of this, the estimated 20% budget cut to the police will impact on the sector’s ability to maintain its Domestic Abuse Officers and independent Domestic Violence advisers. 

A judicial system designed originally largely for and by men is a system is likely to fail to reflect and respond to the different life experiences of women.  There is also the more theoretical argument that a judicial system should, as part of its fairness, reflect the society it aims to work in.  The same argument has been made in favour of initiatives to encourage BME judges, who remain significantly underrepresented.    Initiatives at the early stages of the legal profession to promote diversity must be matched not only with a concerted effort to encourage women judges (including addressing ‘cultural climate’ issues such as long working hours) but also a reworking of the justice system to ensure that those who use it are treated fairly and with sensitivity to their life experience.  The judiciary must be gender-equal as much as the justice system must be fair to women.



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