In Reforming the Supreme Court, Professor Wyatt and Professor Ekins have produced a thoughtful contribution to the ongoing scholarly debate on the correct limits to judicial power; a debate which is, and always has been, driven by political rather than legal priorities. From the 1970s to the 1990s claims of judicial overreach in the UK were made primarily by those on the left such as JAG Griffith, Conor Gearty and Keith Ewing. Their objections to judicial power were underpinned by their views of the judiciary as an instrument of the establishment blocking workers’ rights and undermining civil liberties. After the enactment of the Human Rights Act in 1998, which Ekins rightly identifies as a key moment in changing judicial culture, these critical voices were more muted and concerns about the improper exercise of judicial power were increasingly raised by those on the right. Most recently they have been taken up by the Judicial Power Project.
My academic contribution to this debate is equally grounded in a political worldview. It is underpinned by a commitment to the democratic value of widening participation in public life and the goal of increasing diversity on the Supreme Court. Therefore my primary concern in response to the proposals set out in this paper is their likely effect on the composition of the Court; a question which Ekins does not address and which Wyatt considers only in passing, because this is not their political priority.
For nearly 30 years I have conducted research on possible institutional and procedural reforms which might accelerate judicial diversity, particularly in the senior judiciary. In 2006 I supported the creation of the judicial appointment commission for the Supreme Court in the belief that it would promote judicial diversity. That belief has proved to be misplaced. The empirical evidence is now clear, both from the UK and from judiciaries around the world, that reforms to the structure or processes of the courts or the judicial appointments process have very little effect on judicial diversity. The only structural change which makes a significant difference to the composition of courts is the introduction of quotas, which are currently off the political agenda in the UK.
Whether or not it continues to be acceptable for the quality of the UK Supreme Court to be undermined by the over-representation of white, male, privately educated barristers is ultimately a political question. Whether the Supreme Court is renamed or reconstructed will make little difference to the diversity of the judges sitting in it. Change will happen only if and when politicians and senior judges believe that it is necessary. In the UK at present, judicial diversity is a low political priority and it is looking likely that Lord Sumption will be proved right when he predicted in 2012 that it would be 50 years before gender equality in the judiciary is achieved. If anything, he may have been overly optimistic. On the basis of the current trends it could take significantly longer than half a century before we have a merit-based selection process for the Supreme Court, whatever name it goes by in the decades ahead.
Kate Malleson is Professor of Law, Queen Mary, University of London