SHAKESPEARE togged Portia up in an advocate’s gown in the late 1590s. Shylock thought the disguised dottoressa a rightful, wise and learned judge.
At least until she pettifogged the lender out of the bloody forfeit of his bond, pitching him into penury and his enforced conversion to Christianity. Some 60 years before Portia could demonstrate her forensic eloquence in The Merchant Of Venice, King James V of Scotland was laying the foundation of what would become Scotland’s Supreme Courts, of Session and of Justiciary. Since then, the court has been presided over by countless lords president, the most recent of which – Lord Hamilton – will be retiring this summer.
During Hamilton’s tenure, the office has evolved substantially. In 2008, the Scottish parliament remodelled the Scottish judiciary along partly English-inspired lines. The president is now head of the whole body of judges in the realm responsible for securing the efficient disposal of business in Scots courts, the welfare and training of judges and publicly representing the views of the judiciary. For these labours, the president receives an annual salary of some £214,165.
Now the Scottish government is seeking Hamilton’s replacement. So who will it be? While a large number of candidates satisfy the minimum qualifications, given recent practice, we might expect the president to be selected from within the current membership of the Court of Session. Since nobody can be a judge in their own cause, we can handily rule out Lady Dorrian’s and Lord Hardie’s candidacies, as both sit on the selection board. Similarly, Lord Reed may be discounted, lately having been appointed a Justice of the UK Supreme Court. Excluding these three, the pool of potentially eligible Court of Session judges decreases to just 30. Might the appointment panel look elsewhere in the legal world? Certainly, there are precedents. Take Lord Hope, for example. Now vice-president of the Supreme Court, Hope was simultaneously appointed judge and lord president of the court in 1989, direct from the Bar.
What about Portia and Scotland’s learned and upright female judges? There has never been a lady president of the Court of Session, and for many, conscious of the image of the Scottish legal establishment as a bastion of antediluvian masculinity, a female appointment could be seen as symbolically pleasing and rhetorically useful. So what are the chances of a female appointment this time around? Statistically, slender. Of the 34 senators of the College of Justice, only five are women: Ladies Paton, Dorrian, Smith, Clark and Stacey, and only four potentially eligible for appointment. That’s only 14.7 per cent of Scotland’s senior bench. Of Scotland’s six sheriffdoms, Mhairi Stephen of the Lothian and Borders is the sole female sheriff principal, but appointed only in May last year. More generally, of the 142 permanent sheriffs presiding over courts across the country, only 30 are women – 21 per cent of Scotland’s shrieval bench.
This stark gender imbalance, and tiny pool of potential female candidates, is partly a legacy bequeathed by the profile of the profession during the 70s and 80s. A total of 323 years would intervene between Portia’s first performance and the elimination of the legal disabilities which prevented women from joining the Scottish legal professions in 1919. The first woman, Margaret Kidd, was admitted to the Faculty of Advocates in 1923. Crowds of emancipated women with jurisprudential ambitions did not immediately invest in wigs and gowns and follow her. By 1985, 62 years after Kidd’s pioneering admission, only 31 women had ever been called to the Scottish Bar.
Today, while far greater numbers of women pursue the profession of advocate, the Faculty remains dominated by men, who in turn dominate the Scottish judicial branch from top to toe. Of the 116 currently practising advocates who have “taken silk” as QCs, just 21 are women, or 18 per cent of Scottish senior counsel. Nor, at the younger end of the profession, do we see consistently greater gender balance. Of the 12 fresh-faced advocates called to the Bar in 2011, three are women. Of the 10 in 2010, four are women.
At this stately pace, Scotland seems likely to retain only lords president and an overwhelmingly male bench of Lords of Council and Session for a great many years to come. Even if the first lady president is appointed, our critical eye mustn’t be blinded. There’s a long way to go in securing women’s equal participation in the third branch of our government yet.
• Andrew Tickell is doctoral researcher at the University of Oxford’s Centre for Socio-Legal Studies, and blogs as Lallands Peat Worrier