The supreme court began its search for three new judges on Thursday, seeking members who will “improve the diversity of the court”.

Of the court’s 11 current members, 10 are men and all are white. Just two were not privately educated. On Thursday, the court’s president Lord Neuberger said he and his colleagues want that to change. “What we are looking for is to recruit on the basis that the court becomes more diverse,” he said.

He also spoke out about media attacks on the judges in the wake of November’s high court decision on the Brexit case: “We [judges] were certainly not well treated. One has to be careful about being critical of the press, particularly as a lawyer or judge, because our view of life is very different from that of the media. I think some of what was said was undermining the rule of law.”

Neuberger is retiring in September, along with fellow supreme court judge Lord Clarke. The court is also recruiting for a replacement for Lord Toulson, who retired last year. Next year two more judges will retire, suggesting that the court’s makeup could substantially change.

“We are a fantastically diverse society and it must be right that when society looks at the most senior members of the judiciary it sees that it reflects the society of which we’re part,” Robert Bourn, president of the Law Society, told the Guardian.

“There’s a real opportunity to make a change,” said Sam Mercer, head of equality and diversity at the Bar Council. “The judiciary has got to reflect the people it’s working for. To have any legitimacy we need to have more women and more ethnic minorities, particularly at the senior ranks.”

At the tribunal level, the courts are more diverse. Some 45% of judges are women and 10% are black or ethnic minority, compared to around 14% of England and Wales. But representation shrinks at the high court level, where slightly over one in five judges are women and one in 20 are black or ethnic minority. There are nine female court of appeal judges – 23% of the total. None of the 39 court of appeal judges is black or ethnic minority, according to the lord chief justice’s most recent diversity statistics.



“When you look at the top, it really does look horribly male and horribly white,” said Mercer.

Lord Sumption, who joined the supreme court in 2012, suggested in 2015 it would take 50 years to achieve gender equality at the top of the judiciary. He told the Evening Standard: “We have got to be very careful not to do things at a speed which will make male candidates feel that the cards are stacked against them.”

Possible candidates include Lady Justice Hallett, who chaired the inquest into those killed in the 7/7 attacks, her fellow court of appeal judge Lady Gloster, and high court judge Rubinder Singh. But those weighing up whether to apply for the supreme court bench will also be watching the lord chief justice, Lord Thomas, who is expected to announce his retirement.

In an effort to widen the pool of candidates, the supreme court has contacted groups such as the Black Solicitors Network, the Association of Women Barristers and legal academics’ groups to try and encourage people from beyond the top ranks of the judiciary to apply.

The selection commissions will even consider applications for part-time judges, although given the nature of the roles, hearing detailed legal arguments on the most complicated cases, part-time work is more likely to be in the form of taking periods of time off rather than a reduced timetable.

“There’s an awful lot to do with confidence on the part of candidates … it’s about recognising that what they’ve done to date would put them in a good position to apply,” said Bourn. Solicitors, especially, should “have the confidence to recognise that what they do is a form of exercising judgment and then to recognise that therefore they do have the intellectual capacity and the ability to do this job.”

But there are significant barriers to women in reaching the top of the legal profession, said Mercer. Combining motherhood with work as a barrister, most of whom are self-employed, is especially challenging. “It can’t be particularly flexible if you’ve got court-based practice. As a profession, it’s very, very hard to shift the dial … All the obvious barriers have been tackled.”

Christine Kings, director of Outer Temple Chambers and vice chair of the Legal Action Group, said: “There aren’t as many women applying to be QCs, and there’s a separate investigation going on as to why that is.” If women are to reach the top in greater numbers, they will need more support for example with taking career breaks, she added.

But there are “lots of really top-class brains” the court could choose from if seeking to hire women, Kings added. The reason the bench is so male may be “it’s always been men and the people involved in selections have always been men – and as in other walks of life, if it’s always been men and they’ve always been like that, why change it?”

This time, though, the focus is different. “I would be shocked if it was three men appointed,” she said.

The legal profession has done “quite well” on recruiting and promoting ethnic minority people, said Mercer. “We need to question the assumption it’s just going to fix itself in 20 years … We need to find out why the judiciary isn’t recruiting enough ethnic minorities.”



Kings said: “I suspect that when it comes to the supreme court selection there are the same problems as with women: they are not on the radar.”