The recent Supreme Court appointments marked a significant step towards a more diverse selection of Supreme Court Justices. Lady Hale has become the first ever female Supreme Court President, with Lady Justice Black becoming only the second ever female Supreme Court Justice. In addition, Lord Justice Lloyd-Jones and Lord Justice Briggs, who were also appointed as Supreme Court Justices, were both educated in Wales, in a positive mood for more regional diversity.
However, it has been argued that, while these appointments are a sign of positive change in relation to the diversity of the Supreme Court, there is still significant progress left to be made.
In contrast, claims that appointments have only been made to appease calls for diversity, often referred to as ‘political correctness’, seem to have become increasingly more common. In light of this, this article will seek to argue that diversity is a relevant, but not a fully decisive, factor in the selection of Supreme Court Justices.
On the 11th August 2017, Lady Hale, following the news of her appointment as Supreme Court President, gave a speech on the ‘Constitutional Implications of Judicial Selection’, focusing on the selection of people to become judges, and the selection of judges to hear and decide particular cases. In her speech, Lady Hale sets out the four main virtues that the judiciary should possess. The fourth virtue chosen by Lady Hale is diversity, and she sets out her four reasons for the inclusion of this virtue.
The first virtue is democratic legitimacy. This has become particularly relevant following the Supreme Court decision in the case brought by Gina Miller following the referendum in which the UK majority voted to leave the European Union. The High Court judges were branded ‘Enemies of the People’ on the front page of the Daily Mail, and Supreme Court Justices were subject to an analysis of any links which might influence their decision.
This case led to many ‘Leave’ supporters feeling that a ‘Euro-friendly’ selection of Supreme Court Justices had made a decision, not against the barrister’s case, but against them. It is argued that this was mainly due to a misunderstanding of the judges’ roles in interpreting the law. disconnect between the judiciary and the UK public is still an issue which needs to be resolved.
Lady Hale argued that a more diverse Supreme Court is one way to tackle this, to allow members of the public to feel that the judiciary are‘there to serve the whole community, rather than the interests of a narrow and privileged elite’. She further stated that the respect of the public can not be taken for granted.
While these appointments are a sign of positive change in relation to the diversity of the Supreme Court, there is still significant progress left to be made.
Further reasons given were ‘fairness and equality’ and ‘effective exploitation of talent’. The final reason is the quality of decision making. In explaining this reason, she appears to accept that judges’ decisions can be influenced by ‘our experiences of life, our values, our philosophies of judging, our inarticulate major premises, our unconscious biases’.
It is unclear whether the other Supreme Court Justices would accept that some of their past decisions may have been influenced by these factors. In contrast, research conducted by Rachel Cahill O’Callaghan in the November 2013 Journal of Law and Society (Volume 40, number 4, at page 596) suggests that some decisions of Supreme Court Justices are influenced by their values, focusing on cases where there has been a split decision. The example case used in O’Callaghan’s article is that of R (On the Application of E) v JFS Governing Body, in which the competing values were that of universalism and tradition.
This is likely to be particularly relevant in cases which involve questions of human rights, where there are often competing rights which must be considered by the Justices, such as the balancing of Article 8, the Right to Privacy, and Article 10, the Right to freedom of Expression. In such cases, it is likely that the emphasis which the Justices places on each human right will be influenced by their ‘experiences of life, their values, their philosophies of judging, their inarticulate major premise and their unconscious biases’.
Therefore, while it is argued that the judiciary’s role is merely to ‘interpret’ the law, it would appear that their interpretation may vary according to their own personal circumstances. To conclude on this point, it would appear that in order to achieve the most effective interpretation of the law, which reflects a larger portion of the UK public, diversity in the Supreme Court must be improved. This can be compared to the importance of having a trial by peers in the form of the jury, in both recognising that judges are human, and that equality is of utmost importance. This then also reinforces and maintains a positive public perception of the supreme court judiciary.
In conclusion, diversity is a very important factor which should be taken into consideration in the selection or Supreme Court Justices, for the improvement of ‘democratic legitimacy’, ‘fairness and equality’, ‘effective exploitation of talent’ and to improve the quality of decision making.