Women in the Judiciary: What solutions to advance gender-responsive and gender-diverse justice systems?

Towards Gender Equality Before the Law. Agenda

Kate Brooks, OECD Directorate for Public Governance and Territorial Development (GOV)

In recent decades, the number of women in the judiciary has significantly increased worldwide. In many countries around half of law students are women, and 2014 data shows that women in OECD countries make up more than 54% of professional judges. But women are still vastly underrepresented in top-ranking judicial positions including on High Court benches and other senior roles in the legal profession. What are the obstacles to women’s legal leadership? How can we overcome them?

In 2015 the UK’s only female Supreme Court judge, Baroness Hale, criticised all-male appointments. Hale has been a strong advocate of improving diversity, questioning whether an element of positive discrimination may eventually be needed to redress gender imbalance. Increasing gender balance on high court benches helps to preserve the legitimacy of the courts as representative of the societies that they serve and enables courts to understand the real-world implications of their rulings. Enhancing gender diversity in the justice system helps maintain public confidence, reduces barriers to women’s access to justice, such as stigma associated with reporting violence and abuse, and ensures a more balanced approach to enforcing the law. A higher presence of women jurists is vital to ensuring the implementation and safeguarding of equality rights. Courts that operate free of gender bias and other forms of discriminatory practices can be powerful drivers of social change.

The under-representation of women in high-level courts partly relates to horizontal gender segregation in the judiciary in OECD countries. Usually, women tend to be better represented in family and other first-instance courts, resulting in fewer women being promoted into upper courts. On average, women hold 45.9% of Presidencies in Courts of First Instance, 28% in Courts of Second Instance, and 18.6% in Supreme Courts (CEPEJ 2016).

The barriers faced by women in the judiciary are similar to those encountered in other areas of public life. In addition to challenges in balancing work/life commitments, persisting gender stereotypes, lack of development opportunities and gender bias in promotions; stringent requirements for judicial appointments and selection methods tend to impede women from becoming top judges.

Since women are often successful at gaining entry into the legal profession but progress slowly into senior posts, re-visiting the corporate culture and working conditions, and introducing mentorship schemes are necessary considerations. Regardless of government policies, leadership and independent monitoring of outcomes are essential components to ensure a more diverse judiciary.

Note: Data not available for Australia, Canada, Chile, Japan, Korea, Mexico, New Zealand, the United Kingdom and the United States‌
Source: European judicial systems Efficiency and quality of justice, CEPEJ STUDIES No. 23 (Edition 2016, 2014 data)

The 2015 OECD Recommendation on Gender Equality in Public Life provides a range of options to enable equal access to leadership opportunities- including in the judiciary. It includes measures to strengthen institutional capacities for effective governance and the mainstreaming of gender equality across all policy areas. The OECD continues to work to support countries in addressing the remaining barriers to gender equality in public life. A toolkit to guide both members and non-members is currently in development.

On March 10 high-level government officials and non-governmental experts will share their experiences and views on how countries can better respond to the needs of women and girls by linking gender equality perspectives with improved access to justice. The event is open to the public.

Useful links

OECD Event on Gender Equality before the Law

 Women in government

OECD (2016), 2015 OECD Recommendation of the Council on Gender Equality in Public Life, OECD Publishing, Paris.

OECD (2014), Women, Government and Policy Making in OECD Countries: Fostering Diversity for Inclusive Growth, OECD Publishing, Paris.

Women in Public Life; Gender, Law and Policy in the Middle East and North Africa

The lost decade: in search of “Social Europe”

EU social jsutice reportToday’s post was written by Craig J. Willy for the Bertelsmann Foundation which will also be publishing it.

The Bertelsmann Stiftung’s new EU Social Justice Index is unequivocal: social conditions, notably in terms of poverty and unemployment, have worsened in most EU countries since 2009, often significantly so. This reflects the financial and economic crisis, but also the eurozone’s response to it, as “the rigid austerity policies pursued during the crisis and the structural reforms aimed at economic and budgetary stabilization have had, in most countries, negative effects with regard to social justice.” The Index adds: “the cuts induced by the crisis are not administered in a balanced way throughout the population.” Only three countries – Luxembourg, Germany and Poland – have seen significant improvement in recent years.

Much of Europe appears to be settling into a “lost decade” characterized by high long-term unemployment and underemployment, and weak or no economic growth (indeed the eurozone experienced zero percent growth in the second quarter of 2014, while Italy and Germany shrank 0.2 percent). The poverty rate has risen 1.7 points to 25.4 percent, including 28 percent of children in the EU. Unemployment has reached notoriously high levels in many countries.

The Social Justice Index notes that even where there is low unemployment “the emergence of a dual labour market has been increasingly evident, with poor vertical permeability from ‘atypical’ employment relationships (enlarged low-wage sector, temporary employment) to ‘normal working conditions’.” Just as Western Europe’s unionized working class has shrunk enormously, its postwar middle class appears to also be declining.

The challenges of a multinational union

The EU has been attempting to address these problems and has had some success in stabilizing the eurozone, but European officials are painfully aware of the challenges in creating a genuine “social Europe” and addressing the flaws of the common currency.

The first problem is the difficulty in managing a multinational union: it is far easier to have public support for solidarity (risk-sharing, wealth transfers) and shared government (respect for common rules) within a country than between them. As European Central Bank (ECB) President Mario Draghi laconically noted: “The Dutch have a problem with paying for the Greeks, but not with paying for other Dutch.”

The second problem is institutional: the EU and eurozone are not a federal state or a genuine government which might decisively tackle issues one way or the other. Instead, one has to work with rules laid out in the European Treaties, with any necessary changes to account for new problems requiring unanimity among national governments and legal creativity. This leads to a lot of procrastination on the road to consensus and brinkmanship as each government extracts maximum concessions for its agreement.

Putting aside the eurozone, the social challenges of the EU as such are probably manageable. Broadly speaking, inequality in EU countries is low by global standards, certainly much lower than in the United States or the BRICS, and Europeans are attached to social models which are diverse in implementation but similar in their concern for social equity and balance between solidarity and liberty.

True, low-wage competition from Central-Eastern Europe, either in the form of delocalization or immigration, may put downward pressure on wages in certain areas and sectors. This pressure will diminish as these nations develop, and indeed some Central-Eastern European countries – notably the Czech Republic, Slovenia, and Estonia – already score higher than many Western European countries on the Social Justice Index. There is also evidence that EU migration is a net positive for national coffers of the recipient country. The gradual increase in EU-wide social standards through legislation, already seen in the Social Charter and the Working Time Directive, is plausible.

“The Delors Paradox”

Things are more challenging for the eurozone. European Commissioner for Social Affairs László Andor has argued that any effect of the EU’s social standards legislation have tended to be counteracted by the existing deficiencies of the common currency, terming this “the Delors Paradox”: “On the one hand, we introduce social legislation to improve labour standards and create fair competition in the EU. On the other hand, we settle with a monetary union which, in the long run, deepens asymmetries in the community and erodes the fiscal base for national welfare states.”

The eurozone then needs reform and policy coherence. But the currency union’s management is notoriously complex – monetary policy run by the ECB, bailouts by national ministers by unanimity, the bulk of government spending at national level, but with deficit limits enforced by the European Commission and national judges – becoming confusing even for European political leaders. French President François Hollande for example, after the EU parliamentary elections in May, seemed to confess even he was at a loss with the euro-regime: “Europe has become unreadable, I’m aware of this, distant and to be frank incomprehensible, even for the States.”

There is consensus that significant reform is necessary. Europe’s Socialist and Social-Democratic parties have said that the elitist management of the eurozone’s “Troika” bailout/reform programs – headed by the European Commission, the ECB and the International Monetary Fund – should be replaced by something more democratically accountable. The new president of the European Commission, Jean-Claude Juncker, said in his political priorities: “We have to re-balance the relationship between elected politicians and the European Central Bank in the daily management of the Eurozone,” including a permanent president of the Euro Group of eurozone finance ministers.

In the long-term, many seem to want something like a fully-fledged government for the currency area. French economist Thomas Piketty, who has attracted global attention for his work on inequality, has taken the view that at least a “Eurozone Parliament” is necessary, collectively keeping the government accountable and deciding deficit levels and the amount of common debt issued by a European Treasury. And Jörg Asmussen, state secretary in the German Ministry of Labor and Social Affairs recently wrote: “And in my view the core of integration is the Eurozone with its own parliament and its own budget provided from its own revenue sources – with Germany and France in a position of special responsibility for integration.”

The Bertelsmann Stiftung has further studied the possibility of a substantial eurozone budget through an EU unemployment benefits scheme, which would both stabilize the currency area during economic shocks and help to address social concerns.

No conceptually cohesive strategy targeting social justice across the EU

Unfortunately, agreeing that reform is needed is not the same as agreeing what those reforms should be. In many countries there is little appetite for the laborious process of Treaty change, which would entail a major continent-wide debate and unanimous ratification by the 28 member nations, including possible referenda. With eurosceptic sentiment at an all-time high in many countries, transferring even more power to European institutions may be difficult to justify to voters.

EU and national leaders will then likely have to “muddle through” in the current framework for the time being and address citizens’ economic and social demands as best they can. Time is of the essence, as the Social Justice Index notes: “Should these social divisions persist for some time, or even worsen further, this will endanger the future viability of the entire European integration project”. But so far “a conceptually cohesive strategy explicitly targeting social justice across the EU has yet to be formulated.”

Useful links

OECD work on inequality

We’re all free to be poor

That's one way to help the poor
That’s one way to help the poor

According to the CIA World Factbook, political parties are prohibited in Bahrain, but don’t despair, freedom lovers, the “constitutional monarchy” formerly known as an emirate is the 13th freest country in the world according to the 2014 Index of Economic Freedom. Economic freedom? According to the Heritage Foundation, co-publisher of the Index with the Wall Street Journal, that’s “… the fundamental right of every human to control his or her own labor and property”, plus aspects such as “the ability of individuals and businesses to enforce contracts”. The CIA, always looking for something to moan about, claims that “Bahrain is a destination country for men and women subjected to forced labor and sex trafficking; […] domestic workers are particularly vulnerable to forced labor and sexual exploitation because they are not protected under labor laws; […] the government has made few discernible efforts to investigate, prosecute, and convict trafficking offenses; […] most victims have not filed lawsuits against employers because of a distrust of the legal system or a fear of reprisals.”

If it’s like that in one of the freest countries in the world, you can imagine what it’s like in hell-holes such as Norway, 20 places down the list from Bahrain. And what about those poor souls living in Italy, the least free OECD country? Italy ranks 70 places lower than Bahrain, just behind Kyrgyzstan (where’s the CIA’s continuing concerns include: “the trajectory of democratization, endemic corruption, poor interethnic relations, and terrorism.”).

Still, the Index’s “two decades of advancement in economic freedom, prosperity, and opportunity” haven’t been wasted on everybody. Oxfam says that 210 people have been lifted out of poverty in the past year, helping bring the world’s total number of billionaires to 1426, with a combined net worth of $5.4 trillion. And as you’d expect, some billionaires have more billions than others: the world’s 85 richest individuals own as much wealth as the poorest 3 billion people.

That’s worrying the World Economic Forum, finishing in Davos today. The WEF’s annual Global Risks Report ranks “severe income disparity” at number 4 in a list of ten global risks of highest concern. (The top three are fiscal crises, unemployment, and water crises.)  The WEF doesn’t go into detail, but it does point out that beyond the immediate impacts, income inequality interacts with and reinforces other socioeconomic and political trends.

Oxfam provides many concrete illustrations of what that means. For instance, their poll of low-wage earners in the US showed that two-thirds of them believe that Congress passes laws that predominately benefit the wealthy. And that was before last week’s news that most members of Congress are now millionaires (and to think, some people accuse the OECD of being a rich man’s club!). In another Oxfam survey in Spain, Brazil, India, South Africa, the UK and the US, a majority of people (8 out of 10 in Spain) believe that laws are skewed in favour of the rich. Similarly, the majority agreed that “The rich have too much influence over where this country is headed”.

You would have to be particularly naïve to imagine that the rich and powerful don’t use their wealth and power to influence governments, whatever the consequences for the rest of us. An IMF working paper  concluded that “prevention of future crises might require weakening political influence of the financial industry and closer monitoring of lobbying activities to understand the incentives better”.  The financial industry spent over $1 billion lobbying against regulation in the US after the crisis, but, please don’t tell anybody. In an OECD survey, only around 5% of lobbyists thought that “overall lobbyist expenditure” should be disclosed.

A crisis can have an immediate, long-lasting impact in terms of people losing their jobs and houses, but income inequality can cause less spectacular, but no less damaging, losses too. Oxfam quote an OECD report on Mexican telecoms on the consequences for the country of the monopoly position of América Móvil, owned by the world’s richest man, Carlos Slim. “Mexico, with the lowest GDP per capita in the OECD, a high inequality of income distribution, and a relatively high rural population, needs the socio-economic boost provided by greater access to more   services, in particular high speed broadband. The welfare loss attributed to the dysfunctional Mexican telecommunication sector is estimated at USD 129.2 billion (2005-2009) or 1.8% GDP per annum.”

What can be done about all this? The OECD’s answer is “inclusive growth”. Have a look at last year’s OECD Forum to find out more about what that is. Or consider this to find out what it isn’t: the richest 1% increased their share of income over 1980-2012 in 24 out of 26 countries for which data are available. Calculations using figures from the Paris School of Economics’ World Top Incomes database suggest that if income shares had stayed the same over this period, the 99% would have an extra $6000 each in the USA today.

Useful links

OECD work on inclusive growth

OECD work on income distribution and poverty in OECD and non-OECD countries

Growing Unequal? Income Distribution and Poverty in OECD Countries