Lord Neuberger of Abbotsbury, the country’s second most senior judge, said in an interview with the Times that more needs to be done to improve gender and race equality within the judiciary.
The Master of the Rolls explained that he would have no problem with female or ethnic minority candidates for top positions being favoured over white men when the two applicants are otherwise equal, although he added that he was happy for men to be picked if they were the best candidate.
This section of the act, which came into force in April, allows positive action to be taken in relation to recruitment and promotion in England, Wales and Scotland, but does not permit positive discrimination, such as quotas.
“The proportion of women and ethnic minorities among the senior judiciary is worryingly small,” Lord Neuberger told the newspaper.
“It is clear that we are moving in the right direction, but very slowly. If you’ve got two equal candidates, you go for women and ethnic minorities – I have no difficulty with (that).”
However, he advised against going any further than section 159, saying that it would be “unfair” and “patronising” to give the role to someone who was not the best candidate.
Baroness Hale of Richmond is currently the only female justice on the 11-member Supreme Court.
In recent comments made to the Guardian, she called for more to be done to increase the presence of women in the judiciary, such as recruiting from alternative sources.
“Women have been joining the legal profession in as great if not greater numbers than men for 25 or more years … [But] sometimes women go into less visible forms of practice. My answer would be … let’s think of the very able people that are doing … less visible forms of practice, rather than just thinking about the top QCs,” she said.