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The Guardian view on the supreme court: good for Lady Hale – and for us all

Though Justice is usually portrayed as a woman, it has in general been embodied by men. Brenda Hale, the new president of the supreme court, will bring years of experience at the highest level of the judiciary and a strong feminist voice to the country’s most senior court. Legal gossip suggests that the outgoing president, Lord Neuberger, was appointed in 2012 as a “stop Hale” candidate. She was considered eccentric, possibly even a little dangerous. Her appointment had seemed in the balance until it was finally confirmed on Friday. It was held back until the very last minute – and will only last for two years, since she must retire at 75 – but is a triumph not only for her personally but also for the slow diversification of the judiciary.

There has long been a tension between two ideas. The first – symbolised by the blindfold that statues of Justice sometimes wear – is that judges are incorruptible, not merely in the venal sense but also in terms of human sentiment and emotion. The second is the understanding that if all judges come from similar backgrounds, chosen on criteria that hugely privilege one particular type of candidate, then the justice they dispense will reflect only one set of experiences. And a very narrow set at that.

Brenda Hale has been an outsider on many levels. She made her career as an academic, not as a practising barrister; she is a feminist, a northerner and the product of a state school. She has repeatedly urged the promotion of more women and pointed to the overrepresentation of the privately educated in the judiciary, and black and minority ethnic underrepresentation. Not all senior judges are the same, but none has brought so much that is different, nor such an awareness that diversity cannot begin and end with her.

The court itself acknowledges that. It shaped the selection process to include other appointments at the same time, hoping that more women would apply if more than one job was available. So Lady Hale’s promotion is accompanied by the appointment of three more members of the court, one of them female – raising the total to two women out of 12. Progress is being made. But it is slow. Earlier this week, the latest figures for judicial diversity showed that a quarter of judges in the court of appeal and a fifth of those in the high court are now female. But the proportion of black, Asian and minority ethnic judges is still well below one in 10, and there has been a drop in the percentage of non-white barristers, still the largest source of future judges.

The judiciary of England and Wales is in flux for reasons that go far beyond diversity. At the senior end, changes to pay and pensions have made it a less attractive prospect to successful lawyers; at the other, huge cuts in legal aid have eroded the avenues – like high-street solicitors and smaller, less grand sets of barristers’ chambers – that have often made a career in law accessible to people from ordinary backgrounds. The more immediate challenge, though, comes from the surging tide of populism surrounding Brexit that newspapers exploited with headlines like “Enemies of the people” and legitimises a prurient scrutiny of judges’ backgrounds to argue that their identities prevent them from delivering unbiased decisions.

Lady Hale is likely to be a strong and fearless voice in defence of judicial independence in an era when it has never felt more fragile. She has never been afraid to speak out, sometimes at some personal jeopardy. (In some quarters, her remarks on the potential implications of Gina Miller’s application to involve parliament in the Brexit decision were considered a near-fatal act of indiscretion.) Her decisions have improved the lives of ordinary people, for example by recognising the financial rights of unmarried partners. But her promotion is also a step forward for the judiciary as an institution. Many, including some of her colleagues at the supreme court, see a trade-off between diversity and merit. Lord Sumption has suggested a mere half century of “patience” may be required if excellence is not to be diluted. Others believe the inability to recognise excellence in its many forms – not just the existing mould – is wasting talent. That is damaging to those excluded, but also to the system shutting them out. Secondly, the quality of decision-making is enhanced when diverse perspectives, knowledge and wisdom are brought to the mix. As Lady Hale has urged other women: “We owe it to our sex but also to the future of the law and the legal system to step up to the plate.”

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