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It has recently been reported that there is a lack of gender inequality within courts in Scotland, and across the UK, with those sitting in the benches lacking in diversity.

Gender imbalance within the Scottish judiciary will not be surprising to anyone regularly working or appearing in Sheriff Courts across Scotland. The vast majority of Sheriff’s I have appeared before in the past 5 years have been male and yet within the profession the same gender imbalance does not exist. Women make up 56% of the Scottish legal profession yet more than 60% of the judiciary in the UK are male. This is disproportionately higher than other parts of Europe and unexplained when looking at the profession as a whole.

In Sheriff Court’s across Scotland, there are 128 permanent Sheriff’s with only 27 being female, this works out at 21%, which is far short of gender equality, and significantly less than the 40% average across the UK. The question has to be asked why a profession which is now dominated by women is not seeing the same rise in number with those sitting on the bench? By failing to ensure gender equality across the courts, this is sending a message to women in the profession that there is a glass ceiling on their career and that the judiciary is out of reach to the vast majority.

While a number of reports have been complied reporting on the lack of gender balance on the bench, each addressing the need for change, the number of female judged in Scotland has decreased rather than increased in the past three years. The judicial system in the UK overall has seen a decline in gender parity since 2017 and is likely to decrease further in years to come. For example, the Supreme Court has three woman on the bench of 12 justices, far short of gender equality. In the coming years, gender equality in set to worsen in the Supreme Court with Baroness Hale retiring in January, Lady Black set to retire early next year and Lady Arden set to step down in 2022. This raises the question regarding the recruitment process for their successors and the steps taken to ensure equality.

The recruitment process for Justices in the Supreme Court is set down by statute under the Constitutional Reform Act 2005 (as amended by the Crime and Courts Act 2013). When questioned about the lack of gender equality within the Supreme Court, and the steps being taken to ensure gender parity in the future, it was suggested by a spokeswoman that this legislation was sufficient in ensuring the recruitment of diverse Justices in the future. Under the legislation, all appointments are made on merit however where there are two candidates of equal merit, the selection panel can give preference to a candidate for the purposes of increasing diversity.  While this gives the selection panel the option to select a more diverse candidate, such as a women or someone from an ethic minority background, they are under no obligation to do so. It could therefore be suggested that this does not go far enough.

In order to accurately represent the population, and ensure fair access to justice, there requires to be greater gender equality at all levels of the profession, including within the court rooms. Any barriers which have prevented women from reaching the judiciary in the past require to be reviewed and overhauled to ensure greater inclusion.

Blog by Eilish Lindsay, Associate


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