1. Lady Hale, written evidence to the House of Lords Select Committee on the Constitution. ‘Judicial appointments’ (HL Paper 272, 28 March 2012) para 90.

2. Judicial appointments are governed by Pt 4 of the Constitutional Reform Act 2005 and Sch 13 of the Crime and Courts Act 2013. Malleson, K ‘Justifying gender equality on the bench: why difference won't do’ (2003) 11 Feminist Legal Stud 1;CrossRefGoogle Scholar Stevens, R ‘Reform in haste and repent at leisure: Iolanthe, the Lord High Executioner and Brave New World’ (2004) 24 Legal Stud 33;CrossRefGoogle Scholar Moran, L ‘Judicial diversity and the challenge of sexuality: some preliminary findings’ (2006) 28 Sydney L Rev 565;Google Scholar Malleson, K ‘Rethinking the merit principle in judicial selection’ (2006) 33 J L Soc'y 126;CrossRefGoogle Scholar Feenan, D ‘Women judges: gendering judging, justifying diversity’ (2008) 35 J L Soc'y 490;CrossRefGoogle Scholar Malleson, K ‘Diversity in the judiciary: the case for positive action’ (2009) 36 J L Soc'y 376;CrossRefGoogle Scholar Paterson, A and Paterson, C Guarding the Guardians (2012), available at http://www.centreforum.org/assets/pubs/guarding-the-guardians.pdf Google Scholar (accessed 9 January 2015); Rackley, E Women, Judging and the Judiciary: From Difference to Diversity (London: Routledge, 2013)Google Scholar.

3. These data include Lord Hodge. At the time of writing, nine SCJs attended Oxford and nine SCJs attended Cambridge. Lord Kerr attended Queens University, Belfast and Lord Hughes, who joined the bench in April 2013, attended Durham University.

4. Lords Judge and Scott heard four cases on the Supreme Court bench. Lords Clarke and Hamilton heard two and Sir Anthony Hughes and Lord Carloway each heard one case. Of these, Lords Clarke and Hamilton both went to non-fee-paying schools. Lords Hamilton and Carloway attended the University of Glasgow and Sir Anthony Hughes attended Durham University.

5. Ball, S., Bowe, R. and Gewirtz, S. ‘School choice, social class and distinction: the realization of social advantage in education’ (1996) 11 J Educt'l Pol'y 89;CrossRefGoogle Scholar Reay, D ‘The zombie stalking English schools: social class and education inequality’ (2006) 54 Br J Educt'l Stud 288. In the absence of specific data on social class, this paper uses education as both an independent factor and an indicator of class.CrossRefGoogle Scholar

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7. Malleson, K. and Russell, P Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (Toronto: University of Toronto Press, 2006). In 2013, the US Supreme Court had three female Justices on a bench of nine, the High Court of Australia had three females on a bench of seven and the Supreme Court of New Zealand had two female Justices on a bench of five.Google Scholar

8. Rackley, above n 8; Malleson ‘Diversity in the judiciary’, above n 8. Indeed, Malleson's argument is supported by the statistics in App 2 in the Judicial Diversity Taskforce Report Improving Judicial Diversity (London: Judicial Diversity Taskforce, 2012) pp 53–56.

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14. Rackley, above n 8. Indeed, central to Rackley's discussion of judicial diversity is the distinction between ‘representation’ and reflection. Rackley argues that representation carries with it the sense of speaking or acting for someone, which has a significant impact on judicial impartiality, and that the judiciary should not represent but ‘reflect’ society in a way that includes individuals from different classes, and of different educational backgrounds, gender and race.

15. Baroness Jay, Chairman of the House of Lords Constitution Committee, commenting on the Judicial Appointments Report (2012), available at http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/news/jap-report-publication (accessed 1 July 2013).

16. Malleson, above n 8.

17. It is accepted that only 32% of the Bar, traditionally a source of the judiciary, is female, with only 10% female QCs. Rackley suggests that this percentage is due to a low application rate: Rackley, above n 8, pp 38–39.

18. Moran, above n 8; Moran, L and Winterfeldt, D ‘Barriers to application for judicial appointment research: lesbian, gay, bisexual and transgender experiences’, Project Report. Interlaw Diversity Forum for LGBT Networks (London: Birkbeck College, 2011);Google Scholar Judicial Appointments Commission Barriers to Application for Judicial Appointment Research (2009), available at http://jac.judiciary.gov.uk/static/documents/Barriers_to_Application_Research_report_1.pdf (accessed 1 July 2013).

19. Malleson, above n 8.

20. Ibid.

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24. Ibid.

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32. Ibid.

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34. Boyd et al, above n 37. Of note, the authors used a matching system to standardise the comparison between genders. They defined a female panel as one that had a female judge. There was insufficient data to examine the presence of two or more female judges independently.

35. Ibid, p 406 (italics added by authors).

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39. The statistics released on 11 July 2013 revealed that 24.3% of judges in the UK were female, of which only five sit in the higher courts where cases are heard by a panel.

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71. R Cahill-O'Callaghan, above n 61.

72. Majority statement in Radmacher v Granatino [2010] UKSC 42 at 114. Values expressed in majority statements could not be attributed to any individual Supreme Court Justice.

73. Lord Hope in HM Treasury v Al-Ghabra [2010] UKSC 2 at 15.

74. Lord Hope in Jones v Kaney [2011] UKSC 13 at 173.

75. Lord Rodger in R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another [2010] UKSC 29 at 118.

76. Of these cases, the Supreme Court Justice's heard on average 45 cases, of which 22% divided judicial opinion.

77. The average coding density was 11 value statements per individual judgment.

78. Protection of the vulnerable accounted for one fifth of the coding within Lord Kerr's expressions of universalism.

79. Baker v Quantum Clothing Group Limited and others [2011] UKSC 17 at 142.

80. Social justice and fairness also accounted for one fifth of the coding within Lord Kerr's expressions of universalism.

81. Jones v Kaney [2011] UKSC13 at 94.

82. Baker v Quantum Clothing Group Limited and others [2011] UKSC 17 at 160.

83. Lord Walker in Walumba Lumba (Congo) v Secretary of State for the Home Department/ Kadian Delroy Mighty (Jamaica) v Secretary of State for the Home Department [2011] UKSC 12 at 190.

84. A v Essex County Council [2010] UKSC 33.

85. Lord Phillips in A v Essex County Council [2010] UKSC33 at 80.

86. Lord Phillips in A v Essex County Council [2010] UKSC 33 at 85–86.

87. Lady Hale in A v Essex County Council [2010] UKSC 33 at 142.

88. Lady Hale in A v Essex County Council [2010] UKSC 33 at 102.

89. This figure is different from that identified by Alan Paterson in his seminal book Final Judgment, who identified 34 close call cases (minority cases). This study uses the normal language usage of ‘close call’, where a single vote makes a difference in the final decision. In contrast, due to the high level of volatility and vote switches in such cases, Alan Paterson labels close calls as ones in which at least two Justices have voted against the others. A Paterson Final Judgment: The Last Law Lords and the Supreme Court (Oxford: Hart Publishing, 2013) p 10.Google Scholar

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94. Lord Walker supported conformity in 13 of the 14 cases in which it was opposed to any other value.

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99. It is accepted that this is a small subset of cases with low numbers of cases heard by both Justices. The data does, however, reveal differences in the pattern of agreement.

100. Of note, Lords Rodger and Hope almost always agreed on Scots Appeals. Although the Justices were more likely to disagree on English Appeals, the agreement was still above average. Paterson, above n 96.

101. Brice Dickson identified a pattern of joint dissent between Lords Scott and Mance. Indeed, he identified an agreement between Lords Scott and Mance of 93%, which is similar to the agreement identified in this case. This would suggest that Lord Scott may have shared similar values. The Supreme Court data set selected for this study did not have sufficient data to facilitate this analysis, although this may be addressed in the future using a data set from the House of Lords. Dickson, above n 102.

102. See http://www.judiciary.gov.uk/publications-and-reports/reports/diversity/advisory-panel-recommendations (accessed 9 January 2015).

103. Adams and Funk, above n 69.

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