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Andrew Tettenborn: We don’t need sexual or racial quotas in the Supreme Court


Last week, there was a fairly major event in the legal calendar. Three new justices of the UK Supreme Court (aka Law Lords) were appointed to fill gaps caused by retirement. You didn’t notice? Don’t worry: you’re in good company, since unlike the US we don’t make a big deal about such things here. For the record, all three new appointments are very good, one is female, and there is no reason to think that any of them will commit any indiscretion.

But there is one exception to all this non-excitement. The new President of the Court, replacing Lord Neuberger who has retired, is long-standing member Lady Hale. In respect of her we have seen from the Left something approaching a mini-Corbynmania (Halemania?), whether from The Guardian, academics, the legal establishment, or on social media generally. This is on one level odd. The role of President is not vital or high-profile: indeed, a lot of the job of the President is toe-curlingly boring paperwork. While there is no indication that Lady Hale will not do it highly efficiently, it is unlikely to be of enormous constitutional significance.

In fact, this whole reaction from the commentariat says rather more about the commentariat – or rather that part of it that leans to the Left – than about the subject of it.

First, it shows a disconcerting desire in academics and others who should know better to go hell-for-leather towards politicising the judiciary. There is a reason for the adulation of Lady Hale. Quite apart from the fact that she is an ex-academic with a rather didactic style, she is perceived, whether rightly or not, as egalitarian, feminist, marriage-sceptic and a promoter of identity politics; it is for this, not for any particular juristic ability, that she is being praised.

However appropriate this may be in respect of a local councillor, Leader of the Opposition, or even Prime Minister, it is highly questionable whether such an attitude is right in respect of a judge. Whatever your views on equality, marriage, diversity or otherwise, matters of serious social policy of this kind are properly left to our elected representatives, including the DUP; they are not the sort of things where we want to encourage the courts to take a lead.

True, many judicial decisions involve interstitial political questions, especially these days when the pestilential regime of the ECHR seems to occupy a disproportionate amount of the courts’ time. But regarding the judiciary as a kind of surrogate legislature, and cheering on those members of it you think are likely to promote feminism, egalitarianism or whatever social policy you approve of is dangerous and naive. If you like those ideas, leave the judiciary alone (indeed, we hope they will have sufficient sense to take no notice of you) and instead persuade the electorate to vote for them.

Secondly, there is an interesting double standard at work here. Judicial, and extra-judicial, opinions that are seen, whether misguidedly or not, as compliant with a left-wing view are the result of fresh air and free thinking. On the other hand, when a couple of years ago another Law Lord expressed scepticism about the suggested need deliberately to diversify the judiciary, he was patronisingly attacked by adherents of the brave new world such as Jessica Simor QC (of human rights grouping Matrix Chambers) and Charlotte Proudman, not so much on the substance of what he said as on the basis that he clearly must have been speaking as the stooge of the existing political hierarchy.

Thirdly, much of the commentary on Lady Hale’s appointment focused on her sex (sorry, gender). Good for her: but read between the lines, and what we have here is a well-meaning and incredibly stupid attempt to inject identity politics into an institution hitherto free of it. The view that courts exist in order to provide some sort of stamp collection of representatives – a woman here, a BAME person there, a gay wherever – is pernicious; it is also patronising to the judiciary and to the rest of us to an almost equal degree.

It is true that individuals may well have different understandings of legal-political issues such as gender or racial equality: that is why we have multiple judges on our highest courts. But to suggest that a woman, or a black person, on a court can be expected to have, or for that matter advocate, a different view because of their sex or colour – no doubt because of some perception of victimhood – is about as insulting as you can get.

And so too with the idea that diversity promotes public confidence. As a white male law professor I don’t care whether a Supreme Court justice deciding a case is black, female, gay or whatever; they will get my respect if they do it in a proper and principled way. Now assume I am female, or gay. Is the suggestion that in that case I am likely to have more confidence in a decision because of the gender or sexual orientation of the judge who produced it? If it is, the implication is clear: I can’t be expected to have the same degree of independent judgment as a white heterosexual male. Thanks a bunch for that vote of confidence in me as an equal participant in our society.

(Image: Garry Knight)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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