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Seeking justice in gender equality

Hong Kong’s top court is still awaiting its first female judge. It is a situation that reflects the city’s slow pace of diversification in the upper echelons of the legal profession, writes Boase Cohen & Collins Partner Usha Casewell.

Hong Kong, 9 August 2017: When the United Kingdom’s most senior female judge, Baroness Hale of Richmond, visited Hong Kong last November for two days, she radiated authority, wisdom and practical common sense in equal measure. Long respected as a pioneering figure in the male-dominated UK legal establishment and an inspiration for female law practitioners everywhere, Lady Hale was the perfect choice to be guest of honour for the Hong Kong Family Law Association’s 30th anniversary celebrations.

As the then Chair of the FLA, I was fortunate to spend time with Lady Hale as we marked our landmark year with a cocktail gathering at the Helena May, a black tie gala dinner at the Hong Kong Club the following evening, where she delivered the keynote address to a riveted audience, and an informal lunch the next day.

Hopefully, Lady Hale’s ties to Hong Kong will not end there. Last month, she was elevated from Deputy President to President of the UK’s Supreme Court. It means that when she is sworn in this October, she will be just the third President since the court’s inception in 2009 and the first woman to hold the position.

This also leaves her in prime position to claim another piece of history as the first female judge in Hong Kong’s top court. Both of Lady Hale’s predecessors as President – Lord Phillips followed by Lord Neuberger – serve as non-permanent judges at our Court of Final Appeal. While it is not set in stone that she will follow in their footsteps and be invited to preside by our Chief Justice Geoffrey Ma, it is a distinct possibility.

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Lady Hale addresses the Hong Kong Family Law Association's 30th Anniversary Gala Dinner.

Such a development would be both welcome and overdue. An examination of the gender make-up of Hong Kong’s various legal bodies shows that the higher up the ladder you go, the fewer women you will find.

At the end of 2016, some 4,356 of the 9,076 solicitors registered with the Law Society of Hong Kong were female – a healthy 48%. But after that, our legal profession’s figures become somewhat depressing. According to the Hong Kong Bar Association, 31% of Junior Counsel are female, and that shrinks dramatically to just 12.5% of Senior Counsel.

It does not get much better in our Judiciary. At the lower level, that is the Lands Tribunal, Magistrates’ Courts and other Tribunals, 42% of those presiding are female. But then just 19% of District Court judges are female and, while the High Court slightly bucks the trend with 33%, we have already seen that the figure for the Court of Final Appeal stands at 0%. All 19 judges of that court are male.

An examination of overseas jurisdictions shows similar stories: isolated success for women at an elite level in a male-populated legal hierarchy. Last November, there was an overwhelmingly positive reaction when Susan Kiefel was named Australia's first female High Court Chief Justice, ending 113 years of men leading the nation's highest court. Prime Minister Malcolm Turnbull called her story “an inspiration" and indeed it is. Chief Justice Kiefel left school at 15 and began her working life as a legal secretary before studying law part-time.

Yet, just a year earlier, West Australian Chief Justice Wayne Martin was describing the number of female appointments to the judiciary as “tragically” low, highlighting that over the previous decade only one of the 18 judges appointed to the state’s Supreme Court was a woman. He said his court had the lowest percentage of women judges of any court at any level in Australia and – crucially – that the number of women among its judges was decreasing. His verdict? “We’re heading in the wrong direction.”

According to the Australian Bureau of Statistics, there were 100 male and 56 female Commonwealth judges and justices (that is, in the High Court, Federal Court, Family Court and Federal Circuit Court) last year. The proportion of females was at least rising, from 24% to 36% over the last 10 years. However, bearing out Chief Justice Martin’s comments, women were less prominent in the state courts, where they represented just 23% of justices and judges.

In England and Wales, the Courts and Tribunals Judiciary acknowledges the work that needs to be carried out. It has a Judicial Diversity Committee, formed in 2013 and chaired by Lady Justice Hallett, which pursues more initiatives to explore what could be done to accelerate progress. The committee wrestles not only with the issue of opportunities for women, but also for the so-called BAME (black, Asian, minority ethnic) demographic. With a transparency that is to be commended, the Judiciary publishes an annual diversity report.

The latest of these reports shows that in the three years leading up to 1 April 2017, the proportion of female judges increased from 18% to 24% in the Court of Appeal; 18% to 22% in the High Court and 24% to 28% in the courts judiciary. The percentage of BAME judges increased from 6% to 7%. In presenting the report, the Lord Chief Justice, Lord Thomas admitted: “Despite the leadership that has been demonstrated over the last year, progress is not as fast as we would wish.”

And what about the United States? Since 2008, the National Association of Women Judges has partnered with respected legal information provider Forster-Long to raise awareness of gender representation in American courts. They publish an annual Gender Ratio Summary detailing the distribution of male and female judges throughout the US in both federal and state judiciaries. In a nutshell, it found that women make up just 31% of the nation’s 18,000-plus State Court judges.

Like their UK counterparts, the Americans are aware of not only the disparity in female representation, but also ethnicity. The American Constitution Society constructed a database of state judicial biographies, outlining the gender, racial and ethnic composition of state courts. It highlights that while women comprise half the population, they are less than a third of state judges. Just as pertinently, it says that “people of colour” are 40% of the population, but less than 20% of state judges.

Even at starter level in the US, women find it tough going. Last month the legal publication Law360 released a study paper entitled 2017 Law360 Glass Ceiling Report which stated that women are 50.3% of current law school graduates yet still make up just under 35% of lawyers at law firms. Tellingly, their share of equity partnerships remains at 20%, a figure that has been static for the past few years. “It’s a bleak picture, with a few bright spots,” admitted Law360 Editor-in-Chief Anne Urda. Amid such lack of progress, the report noted a rise in gender bias lawsuits against law firms.

If the global picture is less than encouraging, it is Europe where we can look for inspiration. A report by the Council of Europe published in October last year found the continent-wide average percentage of women among professional judges was 51% – and that’s despite the disparity in England and Wales highlighted by Lord Thomas and even poorer figures for Scotland and Northern Ireland (both 23% female). Take a bow Montenegro, Bosnia and Herzegovina, and Romania, where women judges are in the majority at all three levels of the judicial apparatus, namely first instance courts, second instance courts and the Supreme Courts.

On a personal level, I’m pleased to report that the various organisations in which I’m involved have either an excellent record on diversification or are striving to improve it. At Boase Cohen & Collins, 80% of our Trainees and Associates are female and – in answer to the Law360 report – I’m delighted to confirm that half our Equity Partners are female. At the Hong Kong Family Law Association, where I’m now Deputy Chair, all five office bearers are female and, indeed, women make up the vast majority of the Executive Committee. In fact – and the irony was not lost on us – we had to co-opt two men for the sake of diversity.

Ally Law, the global legal services referral organisation in which Boase Cohen & Collins is Hong Kong’s sole representative, is also making strides. For the past five years, it has organised a gathering of women delegates attending its AGM. These get-togethers were always social until this year’s AGM in New York when we upgraded to a formal business development session, for which I was delighted to be invited to take part in a panel discussion. The session was well received – for the record, we had a few men attend – and the intention is for it to become a significant fixture in future meetings.

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Usha Casewell (right) and her fellow panelists share a light moment at the Ally Law AGM.

So where does all of this leave Hong Kong? Well, the figures clearly show room for improvement and we have no excuses. We can see there is a glass ceiling for women in the legal profession and that it extends to other areas of business. A report entitled Women on Boards: Hong Kong 2017 by Community Business, a non-profit organisation championing corporate governance, found that women make up just 12.4% of directors at the top 50 companies listed on the Hang Seng Index. Of 80 new board appointments in 2016, only nine were females.

And yet, we are educating more females than ever before. Figures from the Census and Statistics Department show that 53.7% of students enrolled in programmes funded by the University Grants Committee are female, which compares with 50.1% some 20 years ago. The proportion of female post-graduate students is even more encouraging – 62.5% now compared with 36.2% in 1996-97. Traditional and cultural barriers are being broken down while the most commonly identified obstacle for career-minded women, starting a family, is less of an issue in Hong Kong where domestic help is accessible and affordable.

Clearly, we need greater commitment to change from leaders at all levels of the legal profession and, ideally, this should start at the top. Hong Kong has recently elected its first female Chief Executive. A first female Court of Final Appeal judge would be a welcome next step. When almost half the registered lawyers in this city are female yet the Court of Final Appeal diversification tally is 19-0 in favour of the men, well, the figures just do not add up.