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Gender Imbalance In Courts Affects Public Confidence And Encourages A Stereotyped View Of Judiciary as Old-fashioned:UK SC President Justice Robert Reed

22 Feb 2020 9:20 AM GMT
Gender Imbalance In Courts Affects Public Confidence And Encourages A Stereotyped View Of Judiciary as Old-fashioned:UK SC President Justice Robert Reed
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"In an age when it would be ludicrous to claim that only men possess the wisdom, intelligence and experience to be senior judges, the gender imbalance on our courts can understandably affect public confidence, and encourages a stereotyped view of the judiciary as old-fashioned and out of touch", said UK Supreme Court President Lord Robert John Reed.

He was speaking at the World Judges Conference at Supreme Court of India;

Here is the Full Text of His Speech;

The Judiciary and the Changing World

Lord Reed of Allermuir

I am honoured to have been invited by the Chief Justice to give the opening address at this conference. Let me say at the outset that this is a timely gathering of judges from around the world to discuss a range of issues which are of importance to us all. We are all grateful to the Chief Justice and his colleagues and staff for inviting us, for arranging this event and for their generous hospitality.

I would also like to say what a pleasure it is for me personally to be here. This is my first visit to India, but I have long been fascinated by its history and culture, and in particular by the interaction between the British and this country. Like many Scots, my wife and I have many ancestors who lived and worked here. Some of them are buried here.

Today, with the balance and perspective offered by the passage of time and with the benefit of hindsight, it is I hope becoming possible to reflect on that period in a nuanced way that acknowledges its complexities. India and its age-old civilisation have had a deep and obvious impact on British society and culture, which continues to this day. We in Britain are quite plainly a post-colonial, multicultural society. Judges of Indian heritage sit on our High Court and Court of Appeal. On my own court, about 10% of our staff have Indian backgrounds.

Britain, of course, has also had an impact on Indian society and culture which continues to this day, not least in the use of the English language, and in a legal system based on the common law, committed to constitutional government, of which the rule of law and an independent judiciary are essential components. This common language and common legal and constitutional culture, shared of course with many other countries, are invaluable in facilitating international cooperation in many fields, including some of those that we will be discussing today and tomorrow. Looking at the matter more widely, there are of course other states and legal systems represented at this conference which share similar fundamental values, given expression in the Universal Declaration of Human Rights and the other human rights treaties which our countries have ratified.

This conference is being held at a time when the judiciary around the world have to address some similar problems both old and new. This is an opportunity to share and exchange ideas about some of them, to discuss how we go about dealing with them, and to learn from each other's experience and thinking.

Our first topic considers the role of the judiciary in maintaining a gender-just world. This is a very large topic indeed. I would like to mention in these remarks only one aspect of it, which directly affects only a tiny proportion of women, but is nevertheless important, and of particular interest to me. That is the low proportion of women judges on our highest courts. It is not a problem in all countries, but it is a problem in my country, and it is one which we share with many others. I only recently became the President of my court, and this is an issue which I am determined to tackle.

Some may ask, why does it matter? Is a judge going to decide a case differently depending on whether he or she possesses a Y chromosome? Well, in my opinion it does matter. Men and women, whether they are judges or not, can have different perspectives on some issues because of their different experiences of life, due not so much to differences in biology as to the different ways in which our culture treats them and expects them to behave. It is valuable to have those different perspectives brought to bear on the problems that come before the courts, so that our judgments reflect a range of experience, rather than the experience of only one gender.

But that is not the only reason why a reasonable gender balance matters. Another reason is that the decisions of the highest courts on important questions in our society have to be accepted as legitimate by citizens generally. In an age when it would be ludicrous to claim that only men possess the wisdom, intelligence and experience to be senior judges, the gender imbalance on our courts can understandably affect public confidence, and encourages a stereotyped view of the judiciary as old-fashioned and out of touch. Just as importantly, it cannot plausibly be denied in my country that the ablest women lawyers have historically been less likely to become senior judges than the ablest men who went to law school with them, or who were their colleagues in practice. The logical conclusion is that the bench has missed out on some of the best potential candidates.

This is not, of course, a problem unique to the judiciary. A similar gender imbalance exists in my country in many other fields. It is a societal problem, and it reflects societal factors beginning in early childhood.

What can judges do about the gender imbalance on the courts, bearing in mind that, in my country at least, the appointment of judges is not the responsibility of the courts? As a judge for over 20 years, I have spoken to able women, discussed the job with them, shown them around the courts and encouraged them to apply for appointment, but without as much success as I would have liked. Now that I have become the President of the Court, I chair the selection commission which assesses applicants for appointment to the Court and recommends who should be appointed. A challenge facing the commission is that you cannot appoint people who haven't applied. One possible response is to do away with the need for people to apply and simply consider all the judges in the courts below automatically, but that would require Parliamentary legislation, and would also raise a number of practical issues. So I am working with women judges to try to identify, and address, the factors which put them off applying. There appear to be a number of factors, but they are far from insuperable. I am planning to speak to the judges about diversity in order to try to address these issues and encourage more women, and members of other under-represented groups, to apply.

But the problem is not confined to the very highest courts. The senior judiciary in Britain, as in many other common law countries, is traditionally recruited from the Bar, and that is not a profession which it is easy for either men or women to pursue at the highest level if they also wish to enjoy an ordinary family life. Nor, for that matter, is a career in one of the leading firms of solicitors. The demands of the legal services market in the UK, as in many other countries, are relentless. But the legal culture of long working hours is very hard to change, if the ablest barristers and solicitors are to meet the demands of the market in which they operate. Career planning, which can be particularly important to women, can also be difficult. And even if women only intend to take the minimum time away from the workplace for pregnancy and childbirth, it is still liable to affect their careers and their earning capacity relative to men.

For all these reasons, some women leave the law, or do not progress quickly enough to make becoming a judge appear to be a realistic option. Many of the ablest women lawyers, with the richest experience, are to be found not at the Bar or in commercial law firms but in other lines of legal work, such as the government legal service, charities and universities. But people working there may lack practical experience of the courts, and may not see themselves as potential judges, so they may be slow to apply. Work has to be done to encourage them, and also to encourage those responsible for appointments to look beyond the traditional recruiting grounds, and to be prepared to accept that an able woman who has planned her career so as to accommodate family commitments should not be discounted because her CV is different from the traditional CV of a successful candidate for judicial office.

Our second topic is Populism and the Judiciary. As I understand it, the topic is intended to consider the relationship between the courts and the ordinary citizen. This is another subject with many aspects. I would like to say a few words about two related issues, namely the accessibility of the courts to the public, and communication between the courts and the public. These are both important matters. An effort has to be made to ensure that all parts of the community have confidence in the administration of justice, especially when the courts have to deal with cases involving issues on which public opinion is divided. That means that the courts have to be accessible and to communicate effectively with the public, so as to build understanding and trust. It has to be clear to ordinary citizens that the courts are there for them.

Perhaps I can say something about how we approach this in Britain. One of the consequences of establishing the Supreme Court was to make the highest court much more accessible to members of the public than was previously the case when our highest court was a committee of the House of Lords, which sat in a room deep inside the Houses of Parliament. We actively encourage visits, and welcomed more than 88,000 people to the building during the year to March 2019. We have a public café and an exhibition centre, and souvenirs are on sale. We also have a front of house team who organise visits, open days and other events outside Court hours to encourage members of the public to visit the Court and learn about what it does.

Physical access to the Court was until recent years confined to people who could visit it in London. But we have established a practice of having the Court sit outside London for a week each year. The sittings outside London have drawn attention to the Court's role in the different parts of the UK, showing that we are a court of the UK as a whole, and not only of England or indeed London.

What has made the biggest impact on public accessibility, however, is our website. It is much the most effective means by which the Court can communicate with the public. A particularly important feature of it is that we livestream our hearings. The Court itself arranges and controls the filming. Footage from our proceedings is used by the media, on television and on media websites, subject to conditions which limit the ways in which it can be used. It is also uploaded on to our own website, so that there is a film archive of our proceedings which can be viewed at any time.

The importance of filming our proceedings was illustrated last year when we heard an appeal about whether the Government could suspend Parliament during the period of negotiations before the deadline for the UK's withdrawal from the EU. The hearing was livestreamed on our website in the usual way, and, with our permission, media organisations also livestreamed the proceedings on their own websites. On the first day of the hearing, our website attracted approximately 12 million individual connection requests, and a much greater number of people watched highlights on the television news. When we issued our judgment, the President of the Court explained it live to camera, and that was broadcast on our television news programmes. This helped to improve public understanding that the appeal was not concerned with the political questions concerning the UK's withdrawal from the EU, but with legal questions concerning the powers of the Government in relation to Parliament.

There is another important way in which we use the Internet. There are many schools which are too far away to visit the Court. So we have established a scheme under which pupils can have a discussion with one of the judges of the Court using Skype, directly from their classroom. The pupils submit a list of questions in advance, and a judge spends 30 minutes discussing them with the pupils before the Court sits in the morning. This scheme enables the Court to make direct contact with young people and their families throughout the country.

The Court also recognises that social media enable it to communicate more widely with members of the public, particularly younger people. So, through our communications team, we tweet messages containing news about the Court, and post images showing the judges' activities outside the Court on Instagram. While we do all this as a court, we grant very few media requests for access to individual judges.

We are lucky in having the technological resources to connect with the public in this way. I appreciate that not all courts can do the same, or will want to do the same. One way or another, however, if we are to maintain the confidence of the public in a less deferential age than that of our predecessors, we need to think about effective communication.

Populism and the judiciary can also refer to another topic: the relationship between populist governments and the courts. Elsewhere in Europe, there have been some examples recently of governments undermining judicial independence on the basis that the courts were obstructing the will of the people. Similar problems have occurred elsewhere in the world. Of course, governments have the right to disagree with a judicial decision and to seek to overturn it on appeal. But it is vital to democratic societies that all branches of government respect the integrity of the judicial process.

Our third topic, constitutional interpretation, is a perennial issue, but it is particularly important and difficult when the courts are presented with problems which are novel and controversial. That is unavoidably the position at present. To varying degrees, perhaps, in our different countries, we live in an era of cultural changes, for example in attitudes towards family life and sexual behaviour, and of technological developments, for example in genetics, biotechnology and artificial intelligence. Major social changes are going on around us, for example as societies try to cope with the challenge of global trade, and with immigration on an unprecedented scale. In many countries, including my own, we have to find ways to balance freedom of speech with respect for religious and other beliefs, and to balance privacy and respect for civil liberties with the requirements of national security and the prevention of terrorism. These and many other developments raise controversial ethical and political questions, and inevitably, to the extent that they engage constitutional rights or principles, they pose difficult questions of constitutional interpretation which the courts cannot avoid deciding.

Even in Britain, where we do not have a single document called the constitution, we nevertheless have a considerable body of constitutional law which develops over time in response to the problems which are brought before the courts. It underwent notable development in response to Britain's entry into the European Union in 1973, which resulted in cases raising questions about the relationship between EU law, and the powers of the EU institutions, and our domestic law, including the principle of Parliamentary supremacy. Our leaving the EU has also raised a number of questions of constitutional law concerning the supremacy of Parliament and the powers of the Government. But we also have to deal, as you all do, with the other sorts of problems I mentioned a few moments ago. In recent times, for example, we have heard an appeal raising the question how we should treat commercial surrogacy arrangements of a kind which are unlawful in the UK but which might lawfully be entered into by British couples in other jurisdictions where they are lawful. We have had to deal with several appeals raising questions concerning religious beliefs and practices, and religious dress. We have had several appeals raising questions concerning privacy, data protection and freedom of speech, civil liberties and the prevention of terrorism, immigration control and respect for family life.

There is a connection here to our first topic, in so far as it concerns the importance of courts reflecting, so far as they can, the diversity of the population which they serve, and not being perceived as out of touch, and also to our second topic, concerning the importance of effective communication with the public. We have to maintain confidence in our impartiality and independence in the face of criticism, and sometimes hostility, by constantly seeking to demonstrate to the public that the courts are staffed by judges who are well-informed and sensitive to the concerns of all parts of their society, who are politically neutral, and who adhere to the highest standards of integrity.

Our fourth topic focuses on privacy, data protection and artificial intelligence. This is a wide subject with many aspects. For example, no-one doubts the importance of privacy. At the same time, no-one doubts the importance of the processing of personal data by the police and the security services to national security and the protection of the population from terrorism and other crime. The challenge is to find ways of enabling responsible use to be made of personal data for purposes such as those, without encroaching unacceptably on the right of individuals to enjoy a private life. This is an area where international judicial dialogue and understanding can be particularly important, since effective measures to combat terrorism and other threats to security depend on cooperation between the police and security services of different nations, and such cooperation can be facilitated, or hindered, to the extent that their national laws on data protection are or are not in alignment. For example, Britain and India undertake extensive cooperation on counter-terrorism, centred on their Defence and International Security Partnership. Cooperation of that kind, and in other areas such as serious organised crime, requires a legal framework governing the transmission, processing and retention of data with which the sharing of data between the agencies involved is compatible. The more closely the relevant laws are aligned, the easier the sharing of intelligence is likely to be.

In Britain, we have a body of law on data protection, developed mainly by the EU, which attaches great importance to the protection of privacy, but also permits the proportionate use of personal data for important social purposes provided adequate safeguards exist. In practice, practices which encroach on privacy are likely to be subject to legal challenge. Last year, for example, the use of facial recognition technology by the police in Wales was challenged in what the court was told was the first case of its kind anywhere in the world. The challenge was rejected, on the basis that the use of the technology was subject to adequate legal controls, and had been tested for any inherent racial or gender bias with satisfactory results. Last week saw the first use of that technology by the police in London, and it has of course been deployed by the police in several other countries, and by airports and commercial users for several years. I read last week that in China it is now being deployed together with drones, so that if a citizen is seen doing something unlawful, such as jaywalking, a drone will fly overhead, address the person by name and tell them to stop their offending behaviour. I doubt whether we have heard the last of legal challenges to the use of this technology.

Our last topic focuses on threats to the natural environment. This is an enormous subject, but I would like to focus on one aspect in particular, namely climate change. This is an issue on which Britain and India share a commitment, reflected in the UK's membership of the Indian-led International Solar Alliance and the Coalition for Disaster Resilient Infrastructure, and also in the UK and India being the only G20 countries to be in the highest category in the 2020 Climate Change Performance Index.

An international consensus on the need to tackle climate change has been built principally through the United Nations Framework Convention on Climate Change, ratified in 1992. It sets up the Conference of the Parties ("CoP"), an international decision-making body that has held several climate conferences, culminating in 2015 in the Paris Agreement, which stipulates that global warming must be kept well within 2 degrees Celsius above pre-industrial temperatures, and requires the parties to strive with ambitious plans to limit the temperature increase to 1.5 degrees. That approach was decided on in the light of scientific evidence that, were the Earth to warm by more than 2 degrees, that would cause environmental catastrophe in the form of sea level rise, heat stress, unstable weather and loss of biodiversity. Although not uncontroversial, that evidence has been generally regarded as a reliable foundation for policy-making and decision-taking.

Legal actions challenging the responses of governments to climate change have been brought in many jurisdictions. In some countries, they have been brought on the basis of constitutional provisions concerned with the protection of the environment. In others, reliance has been placed on wider constitutional provisions, such as those protecting human rights to life, to private and family life, to health and to property, on the basis that the enjoyment of these rights may be undermined by a deterioration in the environment.

Environmental law is an area where the Supreme Court of India has taken a particularly active role, and I will look forward to learning more about it. In my own country, where there is a substantial body of legislation protecting the environment, the law has developed in a different way, with the courts being asked to order the Government to comply with the legislation, or to review action taken by the Government which is alleged to be inadequate. British courts have so far approached cases concerned with climate change on the basis that, provided the Government takes account of the advice of the UK's Climate Change Committee as required by the relevant legislation, this is an area where the Government has a wide discretion in assessing the advantages and disadvantages of any particular course of action.

A different approach was adopted in a recent decision of the Supreme Court of the Netherlands. It was held that since there was a serious risk that the current generation of citizens will be confronted with loss of life or a disruption of family life arising from extreme weather, sea level rise, and the erosion of ecosystems placing food supplies in jeopardy, it follows that human rights guarantees recognised by Dutch law require the government to take reasonable measures to address the problem, and place the burden of proof on the government to show that the measures which it has taken are reasonable. The court went on to conclude that the government had failed to show that it was taking suitable and reasonable measures to play its part in seeking to avoid dangerous climate change. Arguments that the Netherlands made little contribution to global warming, and that its doing more would simply allow more leeway to other states, were rejected.

The decision of the Supreme Court raises a number of interesting points. One is the level of generality at which the court considered the evidence. There are few if any details in its judgment as to what the impact of climate change might be on the citizens of the Netherlands. That may be because climate change is regarded as a global risk, with consequences that are difficult to identify specifically in terms of cause and effect, for example in the case of changes in weather systems. But one might ask whether it is appropriate in national legal proceedings to rely on a global risk, not specifically related to a particular nation, region or individual. One might also ask how far a court needs to delve into the details of the science in order to decide a case of this kind. That may become a more pressing and difficult question with the ageing of the Paris Agreement, the lack of progress in taking forward its commitments at more recent meetings of the CoP, and signs of strain in some quarters on the international consensus.

Proceedings of this kind also raise many other issues. One is the standing of plaintiffs to bring claims. Who should be able to bring an action challenging a failure to mitigate the causes of climate change or to adapt to its consequences? Any citizen? Special interest groups? Or only those who are directly affected? What kinds of harm need to be shown? To particular individuals? To future generations? To plants, animals or places? Where does the burden of proof lie in relation to the causal connection between alleged injuries and defendants' acts or omissions? Is it affected by the precautionary principle? Is it relevant that an individual state's share of global emissions of greenhouse gases may be relatively small, or that other nations may be failing to play their part in tackling global warming, or that one country's taking energetic measures to reduce its emissions might simply create leeway for other states to emit more? There are also more fundamental questions, of a kind familiar in other areas of constitutional adjudication, as to the appropriate level and scope of deference to judgments made by the other branches of governance, and as to the remedies that courts should order. For example, when, if ever, can it be appropriate for the courts to question whether governments have formed a reasonable view of the situation, given the degree of scientific uncertainty, or have made a proper judgment as to the appropriate response, taking account of the need to avoid social and economic disruption?

Although the basic legal issues raised may be of a familiar kind, the context and scale of the problems are new. So too, some would say, is their urgency. But they are difficult. They are particularly suitable for discussion at an international conference, as the problem of climate change, like some of the other issues we have to deal with, shows no respect for the boundaries of national sovereignty. These issues are also connected to some of the points raised by earlier topics, in relation to the constitutional function of the courts, and the maintenance of public confidence in their work. Courts have to be courageous in upholding the law. But they also have to be careful not to stray into matters which properly fall within the responsibility of institutions that are democratically accountable. As always, courts have to tread carefully, and endeavour to maintain public trust.

Ladies and gentlemen, there is much for us to discuss. Let me end by thanking the Chief Justice again for inviting me to address you, and by thanking you for listening to me.

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