Authored By: Zanib Sheraz
University of London
Introduction
Can courts truly be impartial without diversity? The judiciary, as an institution, must represent the society it serves. Judicial diversity is therefore critical to the proper functioning of any justice system. In the United Kingdom Supreme Court (UKSC), however, the state of judicial diversity has been cause for serious concern for decades. The representation of women and Black, Asian, and minority ethnic (BAME) individuals on the bench remains deeply inadequate. It is not to say that male judges are inherently biased against women, or that white judges are biased against BAME groups — indeed, many landmark decisions in favour of these communities have been made by white male judges. Nonetheless, a judge who shares a particular gender or ethnic background is better placed to understand the lived experiences of those communities. A bench composed overwhelmingly of white males may create the impression that the judiciary is biased, which in turn undermines public confidence in the justice system. Given that the United Kingdom is a highly diverse and multicultural state, the case for a more diverse judiciary has never been stronger.
Judicial Diversity: A Definition
The first step toward ensuring public confidence in the justice system is to diversify the judiciary. Judicial diversity refers to the appointment of judges from different backgrounds — ethnic, gender, and racial — so as to better reflect the society they serve and to bring a range of perspectives to judicial decision-making.
As has been observed in the context of judicial appointments: “In most fields, it is fully accepted that decision-making benefits from having a range of perspectives and drawing people from the widest possible pool of talent. Judges necessarily bring their backgrounds, education and life experiences to the judgments they have to make … At the most basic level it does not feel as if the system can be fair or selecting the best candidates when it consistently selects candidates of such similar characteristics.”
Judicial diversity is especially important in common law jurisdictions such as the United Kingdom, where large areas of law are shaped by judicial decisions and binding precedent. A judge making such precedent must, as far as possible, avoid allowing personal social or moral values to colour the outcome. When judges are drawn from more diverse backgrounds, the risk of any single perspective dominating diminishes. A simple test of whether a judiciary is truly diverse is whether it reflects the society it serves. The United Kingdom is a multicultural state — people from different cultures, religions, and racial backgrounds form part of its population — and, on that test, the UKSC falls short.
Why Diversity Matters
Judicial diversity is important in large part because it is the most effective means of sustaining judicial independence and public confidence. Unlike members of the executive or legislature, judges in England and Wales are not elected to office. The judiciary therefore lacks what is commonly referred to as “democratic legitimacy” — indeed, it is said to suffer from a “democratic deficit.” Because the judiciary does not derive its authority from the ballot box, the power it enjoys depends on public confidence. And public confidence, in turn, depends on whether the judiciary is seen as representative of the public it serves.
As Aharon Barak has remarked: “An essential condition for realizing the judicial role is public confidence in judge … [T]he judge has neither sword nor purse. All he has is the public’s confidence in him.” Making the judiciary diverse is the most direct way to secure that confidence. People from different racial, cultural, and ethnic backgrounds — who together constitute the public — will be more likely to trust a system in which their communities are represented on the bench. Without such representation, there is a real risk that individuals will feel unrepresented and that their interests are at risk whenever they appear before a court.
Although the public may not be closely familiar with the mechanics of judicial selection, there is considerable interest among academics, commentators, and sections of the public in who the judges are, where they come from, and what decisions they hand down.
2.1 The Impact on Judicial Impartiality
Judicial diversity also matters because a bench drawn from the same educational, racial, and social background poses a serious threat to judicial impartiality. Judicial impartiality requires that judges reach their decisions free from the influence of bias or prejudice. When the justices of the Supreme Court share the same gender, ethnicity, and social class, it becomes more likely that their decisions will either be biased or, at the very least, will appear to be so.
Even if the judges in question are not in fact biased, that consideration is largely irrelevant. The test for apparent bias is objective: whether a fair-minded, informed observer, looking at the facts of the case, would conclude that there is a real possibility of bias. Consequently, a bench of the same gender and ethnic composition invites exactly that conclusion.
As Brian Tamanaha has argued: “Judges must be selected with the utmost care, not just focusing on their legal knowledge and acumen, but with at least as much attention to … their willingness to defer to the proper authority for the making of law … to their social background (to ensure that judges are not unrepresentative of the community), to their qualities of honesty and integrity … and to their demonstrated capacity for wisdom … It was Aristotle who first insisted that the character and orientation of the judge is the essential component of the rule of law.”
To ensure both public confidence and judicial impartiality, the judiciary must be diverse.
Judicial Diversity Over the Centuries: A History of the UKSC
The historical situation regarding judicial diversity in the UKSC is well captured by the observation of the Lord Chief Justice, Lord Taylor, who in 1992 commented that “the present imbalance between male and female, white and black in the judiciary is obvious.” In the past, the composition of the highest courts was dominated by well-qualified, white male barristers. No woman sat on the bench until 2004, and there was no meaningful representation of BAME individuals. The judiciary was almost entirely male from the 1950s through to the end of the 1980s.
Although the quality of the judiciary attracted little criticism during this period, concerns about diversity were raised by academics, members of the public, and even judges themselves. Unfortunately, the position has not changed substantially in the years since. Even today, the Supreme Court remains dominated by white male barristers from privileged backgrounds, with only marginal increases in diversity. The appointment of Lady Hale as the first woman to sit on the UKSC in 2009 was a significant step, but at that point all members of the Court were white and had attended either Oxford or Cambridge. This underscores the fact that BAME representation has lagged even behind the slow progress made on gender.
The following sections examine, in turn, the representation of women and of BAME judges in the UKSC, and the reasons why improving both is so important.
Still a Man’s Bench: The Persistent Under-Representation of Women in the UKSC
While the United Kingdom prides itself on progressive democratic values, the representation of women in its highest court tells a very different story. Since the UKSC’s establishment in 2009, only four female judges have been appointed — a striking gap in judicial diversity. With the recent retirements of Lady Black, Lady Arden, and Lady Hale, the Court has once again returned to having only one female justice. At roughly 8%, the United Kingdom now ranks among the lowest in the world for female judicial representation. A report by the Council of Europe highlights that three jurisdictions within the United Kingdom have some of the lowest levels of female representation in their respective judiciaries.
4.1 How Does a Female Judge’s Perspective Alter the Law’s Reach?
The influence of a female judge within a judicial panel is more nuanced than simply shifting the outcome of a case. There is, however, evidence that the presence of a woman on a panel influences the decision-making of her male colleagues. Without overstating the point, there is a meaningful difference between how a female judge and a male judge may perceive the same set of facts. Equal representation of both genders on judicial panels is therefore important if outcomes are to be just, fair, and well-rounded.
As Boyd et al. have observed: “We observe consistent and statistically significant individual and panel effects in sex discrimination disputes: not only do males and females bring distinct approaches to these cases, but the presence of a female on a panel actually causes male judges to vote in a way they otherwise would not — in favour of plaintiffs.”
Although the law strives for neutrality, judges are not machines. Their personal backgrounds and life experiences inevitably shape the way they approach a case. This view is supported by Benjamin Cardozo, who wrote: “Everyone of us has in truth an underlying philosophy of life. There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action.”
It follows that a female judge may be better placed to decide cases involving harassment, violence, or gender-based discrimination, not because women are inherently superior decision-makers, but because they are more likely to have encountered such issues in their own experience and to appreciate their gravity. A comment made by a male colleague at the workplace might be dismissed as a joke by a male judge; a female judge may recognise it as part of a pattern that can escalate into serious abuse.
The point, ultimately, is not that one gender is better than the other. It is that the presence of both genders on the Supreme Court will make the decision-making process more just and fair. Reforms such as the Constitutional Reform Act 2005 have been introduced with diversity in mind, but the position of women in the UKSC has changed remarkably little as a result.
BAME Representation in the UKSC
The state of BAME representation in the UKSC can be illustrated by the experience of Alexandra Wilson, a Black barrister and Oxford graduate who was mistaken for a defendant — not once, but three times in a single day. The incident starkly illustrates the assumptions and biases that persist within the legal profession.
The representation of BAME individuals in the judiciary is, in fact, even worse than the representation of women. BAME judges constitute approximately 10% of all judges, but their numbers fall sharply in the higher courts. This is a deeply concerning position for a country that is, by any measure, one of the most culturally diverse in Europe. According to the 2021 Census, 5.5 million Asian and 2.4 million Black people reside in the United Kingdom. For these communities to feel genuinely included in and protected by the justice system, their representation on the bench — particularly at the highest levels — must improve. Without it, public confidence in the judiciary is at risk.
Fix the Bench: Reforms for a More Diverse Supreme Court
The Supreme Court is the highest court in the land, yet it does not reflect the society it serves. Earlier reforms have improved diversity at lower levels of the judiciary, but they have not produced any meaningful change at the very top. Given that the Supreme Court decides many of the country’s most consequential and high-profile cases, a bench that lacks diversity is ill-equipped to reach decisions that are perceived as fair — particularly in cases involving discrimination, harassment, and abuse.
To address this, sustained and targeted reforms are needed. These should include, at minimum, the following measures. First, structured programmes should be established to create a genuine pipeline of BAME and women candidates into the senior judiciary, including mentorship schemes and targeted outreach at the early stages of a legal career. Second, the working conditions within the judiciary should be reviewed: flexible working arrangements and the ability to take career breaks should be made genuinely available to women, rather than existing only in principle. Third, myths and misconceptions about discrimination within the legal profession should be actively challenged, so that talented individuals from under-represented backgrounds are not deterred from pursuing a judicial career. Finally, the Judicial Appointments Commission should be required to report transparently and regularly on the diversity of its candidate pools and appointment outcomes.
Conclusion
Judicial diversity is essential to the proper functioning of the justice system. Judges in England and Wales lack democratic legitimacy; their authority rests on public confidence. For that confidence to be sustained, the judiciary must reflect the society it serves. On that measure, the UKSC falls short. The United Kingdom is a multicultural state, but its highest court remains overwhelmingly composed of white male barristers from privileged backgrounds. Both women and BAME individuals are substantially under-represented, and the pace of change has been painfully slow.
The argument is not that women or BAME judges are inherently better than their white male counterparts. It is that all three groups should be represented on the bench in roughly equal measure. A diverse court is not merely a fairer court in the abstract — it is a court in which each judge brings a distinct perspective, challenges assumptions, and influences the reasoning of colleagues. That is what makes the decision-making process genuinely just, fair, and reasonable. Until the UKSC reflects the diversity of the nation it serves, that goal will remain incomplete.
Reference(S):
Aharon Barak, Judicial Discretion (Yale University Press, 1987)
Boyd, D., Collins, P. et al., “Gender, Race, and the Composition of Judicial Panels” (source to be confirmed by author)
Benjamin Cardozo, The Nature of the Judicial Process (Yale University Press, 1921)
Brian Tamanaha, Beyond the Formalist–Instrumentalist Debate (source to be confirmed by author)
Constitutional Reform Act 2005
Council of Europe Report on Female Judicial Representation (source to be confirmed by author)
Office for National Statistics, Census 2021 — Ethnic Group Distribution
Lord Taylor, Lord Chief Justice, remarks (1992) (source to be confirmed by author)
