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Archive for the ‘Diversity in the judiciary and women in the legal professions’ Category

EK photoElena Kapardis is a PhD candidate at in the Law School, University of Birmingham. She has a great interest in the judiciary, judicial identity and judicial diversity.

 

 

 

98 per cent of judges in England and Wales and UK tribunals feel that working conditions are worse today than five years ago, according to the UK Judicial Attitudes Survey (JAS) 2014 published last week. In large part this is down to the speed of a large number of changes to the judicial role introduced during this period. Almost three quarters of judges believed there had been ‘too much change’ (though 70 per cent agreed that some change was needed) with 51per cent also declaring that the amount of change has brought judges to breaking point.

The JAS, conducted by the UCL Judicial Institute, is the first survey of its kind. It surveyed all serving salaried judges in England and Wales and non-devolved UK tribunals about their experiences of being a judge. It was carried out by Professor Cheryl Thomas, Co-Director of the Institute, on behalf of the Lord Chief Justice Lord Thomas, and in response to recommendations by the Senior Salaries Review Body (SSRB).

The JAS was anonymous and voluntary. It was conducted online through the Judicial Intranet with a very high response rate of 89 per cent. The main subject areas of the questionnaire included: working conditions and resources, salary and pension, training and personal development, change in the judiciary and being a member of the judiciary.

Interestingly – and disappointingly – the gender and race characteristics of those who responded were not included in the profiling stage of the judges. With questions such as the sense of collegiality, the role of facilities for the interaction with other judges and the proportion that would retire earlier if required to sit too far away, being asked in the questionnaire, it would also have been interesting to consider the interrelationship, if any, between gender and judicial morale. I hope that these considerations are included in updates of the survey.

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IB imageSterilisation of Woman Lacking Mental Capacity

Charlotte Adamson, Durham University

On the 4th February, the Court of Protection ruled that a mother of six should be sterilised for her own safety. The woman concerned, known as DD, is a 36-year-old woman with Autistic Spectrum disorder and a mild to borderline learning disability, with an IQ of 70. She has a ‘tragic and complex’ obstetric history, and has no continuing contact with any of her children, who are all raised by permanent carers. She is currently in a long-term relationship, which includes a sexual relationship, with a male partner who has a significant learning disability and also displays some traits of an Autistic Spectrum Disorder.

The Court of Protection had previously been required to rule on welfare applications under the Mental Capacity Act 2005 in relation to DD’s capacity to make important decisions regarding her sixth pregnancy and short-term contraception. In this case, they had to consider whether DD had capacity to consider and make decisions concerning long-term contraception and/or therapeutic sterilisation, and if she lacked capacity, to determine what would be in her best interests with regard to these. Mr Justice Cobb came to the conclusion that DD does lack capacity to make these decisions, and that it is in her best interests to be sterilised. While this may be justified in extreme circumstances, Rebecca Schiller, the co-chairwoman of the human rights in childbirth charity Birthrights, has commented that ‘taking away a person’s ability to have a child is truly draconian’, and warned that immense care must be taken to safeguard the rights of people with mental conditions. (more…)

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Elena KapardisElena Kapardis is a PhD candidate at Birmingham Law School, University of Birmingham. She has a great interest in the judiciary, judicial diversity and judicial performance.

With progress towards improved judicial diversity moving at snail’s pace, ‘the time has now come for quotas’ according to a Report, Judicial Diversity: Accelerating Change, commissioned by the shadow Lord Chancellor Sadiq Khan, published last week. This is not a surprise. Back in April 2014 when announcing the appointment of the Report’s authors, Sir Geoffrey Bindman QC and Karon Monaghan QC, the press reported that “Nothing is off the table”:

A Labour government would be prepared to introduce the “nuclear option” of quotas for female and black and ethnic minority judges to avoid a 100-year wait to achieve a judiciary reflecting the composition of the population. “

More recently, Lord Neuberger has stated that the absence of judicial diversity, especially in senior posts, is a major concern for the judiciary. Emphasizing that we must not assume that the problem will resolve itself, he continued

“I am not one of those people who optimistically thinks that if we just sit back it will all sort itself out and the judiciary will eventually include many more women and ethnic minorities”.

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ruth1

Ruth Houghton is a Graduate Teaching Assistant and PhD candidate at Durham Law School. She tweets at @ruth_houghton. Ruth is also a commentator on the Northern/Irish Feminist Judgments Project. This post is also posted at Human Rights in Ireland.

The Project

Launched in 2012, the  Northern/Irish Feminist Judgments Project (@irishfjp) is led by Aoife O’Donoghue (Durham Law School), Julie McCandless (LSE Law) and Máiréad Enright (Kent Law School). A feminist judgments project writes the ‘missing feminist judgment’; it takes original decisions and rewrites them from a feminist perspective. Abiding to the strictures of precedent and custom that judges adhere to, the feminist judge shows how the law could have been interpreted or applied differently. This particular project builds on the work of the Canadian, Australian and English feminist judgments projects, and focuses specifically on the creation of identity in Ireland and Northern Ireland. The project will explore both jurisdictions, rewriting cases from both the Irish and Northern Irish courts. The Northern/Irish Feminist Judgments project explores the building of communities and the importance of diaspora for Irish identity as well as creating a space to explore the ways that Northern Irish and Irish identities have ‘affected, and defined themselves in relation to one another over time’. (more…)

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erikar Erika Rackley, Durham Law School.

This post was first published in the Guardian on 22 May 2014.

 

What’s in a title? For Alison Russell QC, the first high court judge who will be formally addressed as Ms Justice, quite a lot it seems. Good for her, and good for the judiciary too. Though the use of Ms is hardly something new, feminists have been grappling with its meaning and significance for a while now. It’s about time the judiciary caught up.

Indeed, one might wonder whether we might do away with the gendered appendage to a judge’s title completely. Is it really necessary to continue distinguish between Mr, Mrs and Ms Justice Bloggs? Perhaps. One reason for doing so is that it reminds us that women can be judges too. When most of us think of judges we think first of (old, white) men. This presumption is problematic for a number of reasons, not least because it still fits the facts.

Just five years until the centenary of women’s admission to the legal profession, and almost half a century since Mrs Justice Lane’s ground-breaking appointment to the high court, men continue to outnumber women on its bench by around 5:1, and in the judiciary generally by about 4:1. Further up the hierarchy it is more than 25 years since Lady (then “Lord”) Justice Butler-Sloss’s pioneering appointment as president of the family division and just over a decade since Lady Hale joined the House of Lords (and the UK supreme court). Both remain the only women to have reached those positions.

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 Three Laws Criminalising Aspects of Sex Work in Canada Declared in Breach of the Canadian Charter of Rights and Freedoms

Vikki Lang (Durham Law School)

‘It’s about whether or not we believe that sex workers are people deserving of the same rights and dignity as the rest of the public’ – Plaintiffs’ Memorandum, Bedford v Canada 2012

On the 20th December 2013, the landmark decision of Attorney General of Canada v. Terri Bedford, Amy Lebovitch and Valerie Scott was reached. In this case, three sex workers used the Canadian Charter of Rights and Freedoms to successfully challenge laws that criminalised certain actions relating to selling sex. Canada’s highest court has ruled that three provisions of Canada’s Criminal Code, s. 210 (keeping or being found in a bawdy house), s. 212(1)(j) (living on the avails of prostitution), and s. 213(1)(c) (communicating in public for the purpose of prostitution) violate the s. 7 right to security of the person protected by the Charter of Rights and Freedoms. All three laws have been struck down.

In the decision the court said:

‘The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.” (para 60)’

This landmark decision saw sex workers, for the first time, successfully rely on human rights legislation to protect their safety and freedom in relation to their occupation. The plaintiffs successfully argued that their right to liberty and security of the person was breached as they were forced to break the law and risk arrest in order to take actions that increase their security and safety. (more…)

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Amanda YipAmanda Yip QC. Amanda is a personal injury and clinical negligence barrister at Exchange Chambers. She was called to the Bar in 1991 and took silk in 2011. This post was originally posted on Amanda’s blog Life in the Law after 84 new QCs were announced on 29th February. It is reproduced here with permission and thanks.

This week 84 barristers have been celebrating their appointment to the rank of QC.  Rather like when there is a new intake at secondary school, those of us in the second and third year have been only too keen to pass on our considerable experience to the new boys and girls! Over the last two years I have often been asked how I am finding it.  My honest answer is that it has been a bigger change than I anticipated.  Many changes were foreseen and welcomed.  Taking the lead on the big cases was something I wanted and enjoy.  I had reached the point where I wanted to have that responsibility and fortunately I still feel that way.  What took me by surprise was that becoming a silk was a change in lifestyle.

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erikarErika Rackley, Durham Law School

These are interesting times for judicial diversity. In the same fortnight as public pension cuts hit judges’ pensions and the three vacancies on the UK Supreme Court are filled, 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’. (You can read her lecture here and as reported in The Guardian here).

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?

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Kate Malleson, Professor at Queen Mary, University of London and an Executive Committee member of the Equal Justices Initiative, which seeks to promote the equal participation of men and women in the judiciary in England and Wales by 2015.

This week saw further discussion of the proposed changes to how judges are appointed in the Crime and Courts Bill 2012 (here and here). In this paper, delivered in response to a lecture by Sir Stephen Sedley at Mansfield College, Oxford earlier in the month, Kate Malleson asks whether a diverse judiciary is still a pipe dream?

Twenty years ago, around the time when I first became interested in the issue of diversity in the judiciary, the Lord Chief Justice, Lord Taylor said:

‘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’.[1]

As we all know, that hasn’t happened. The judiciary remains largely white, male and middle class and it becomes paler, maler and more socially advantaged the higher up you go. England and Wales is not alone in this. This pattern is repeated around the world and in almost all liberal democracies is a cause of much scrutiny and concern. There is now a clear consensus, in many jurisdictions that, in the words of Lady Hale, ‘a diverse judiciary is an indispensable requirement of any democracy’ (p.2). Yet despite this, no democracy to date has achieved a genuinely diverse judiciary and in England and Wales there is no prospect that it will happen any time soon.

In the light of the intransigent nature of the problem, I want to put forward two arguments. First, that the issue of judicial diversity is inherently political and only a political commitment to change will bring it about. Second that diversity will bring problems as well as benefits and that we need to be much more honest about the implications of a more diverse judiciary. (more…)

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Erika Rackley, Durham Law SchoolThis article originally appeared on the Guardian Law pages on 31 May 2012.

Apparently, we now have an answer to why our judiciary remains one of the least diverse in the world: our women and ethnic minority lawyers just aren’t good enough. During the second reading of the crime and courts bill earlier this week, Lady Butler-Sloss began well. She gave “strong support” for greater diversity among those appointed to the judiciary – so long as, of course, that such appointments are made “on merit”. Few would disagree with that.

However, in attempting to underline this point, things went downhill. Butler-Sloss continued: “It will be very important that women – particularly those from ethnic minorities – who may not be able to bear the strain of the judicial process are not placed in a position where they may find themselves failing because there has been too much enthusiasm for diversity and not enough for merit. This is very important. I have a vivid recollection of a woman judge many years ago who was a very fine pianist. She should have remained a pianist”.

To be fair, her qualification that there was “perhaps” too much enthusiasm for diversity in contrast to merit failed to make it into the Hansard transcript – but there again neither did her colleagues’ gentle titter which followed her remark.

So are ethnic-minority women judges just not up to the job? (more…)

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