“The ways that Judicial Appointments have changed to address problems of diversity and recommendations to ensure greater diversity in the UK Judiciary “- Md’s Law opinion.

I am trying.

In this research essay, I will particularly go through 2 questions which was been set out by my faculty in a mock exam and I am publishing them in my blog. 4/01/2021

  1. Examine the ways that judicial appointments have changed to address problems of diversity.
  2. Was it necessary to change the way in which UK judges were appointed and are further changes still needed to ensure even greater diversity?

Introduction:

Judicial non-diversity “undermines the democratic legitimacy of our legal system; it demonstrates a denial of fair and equal opportunities to members of underrepresented groups, and the diversity deficit weakens the quality of justice”. [1]

 These words motivate the Judicial Appointment Committee report. Commissioned in 2014 in the wake of The Peach Report 1999, Constitutional Reform Act (CRA) 2005 and subsequent Acts in 2007 and 2013, it recognises the inadequate progress in judicial diversification.

Not till 1962 did the judiciary appoint its first female Judge; Dame Elizabeth Lane, and appointment via “secret soundings” (by which the Lord Chancellor privately canvassed colleagues’ preferences,) was retained until the CRA 2005.

Helena Kennedy’s complaint in 1993 that “the current method of taking soundings among the present incumbents as to who should join their ranks means that the potential for cloning is overwhelming” [2]  explains the stultifying effect that secret soundings had on progressing diversity.

Legislation:

The CRA 2005 replaced secret soundings with the Judicial Appointments Committee (JAC) briefed to enhance diversity but 15 years on, there are only 2 female judges in the Supreme Court and that the gender imbalance remains in the lower echelons.

The Crime and Courts Act (CCA) 2013 amended the CRA 2005 placing a duty upon the Lord Chancellor and the Lord Chief Justice “to take such steps as each considers appropriate for the purpose of encouraging judicial diversity.” The retention of ultimate control over appointments within the office of Lord Chancellor however characterises the timidity of successive governments towards disturbing status quo. 

Underrepresentation:

Statistics in 2009 showed a sorry picture with less than 20% women in the judiciary of whom less than 7% were from the Black Asian and Minority Ethnic (BAME) communities. BAME inclusion amongst men was worse still at under 4%.

By 2019 the improvement was significant but still far short of representing wider society as government statistics below indicate[3]:

  • 32% of judges are women
  • 21% of Court of Appeal and 28% high court are women
  • 47% of tribunal judges are women
  • 8% of court judges were BAME
  • 11% of new judges are BAME
  • 32% judges were not barristers
Artwork for FTWeekend comment – issue dated 28.01.17

Change? :

The following headline reflected optimism –

The Supreme Court will witness an historic case in October 2018. Historic, not because of its content or judgement, but because of who is making the judgement. Historic, because of what it means for diversity in the English Legal System. For the first time in the Supreme Court’s history, a case will be heard by a female majority.”[4]

However, by 2020 one of the woman judges on the Supreme court had retired to be replaced by a man making a repeat of this ‘historic’ circumstance presently unrepeatable.

Appointment qualifications tied to type and longevity of experience create an ever more exclusive pool of acceptable candidates for the more senior positions being filled. This acts as a break on diversification. Essentially the problem is that the requirements for ‘merit’ and ‘diversity’ are in conflict.

Stagnation:

In oral evidence to the House of Lords’ Select Committee on the Constitution on 7th May 2015, responses of the Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd are revealing:

“When the next round of appointments to the Supreme Court is made, I hope you will see a significant change. Between 2016 and 2020 all the English members of the Supreme Court will retire, so nine will have to be replaced.”[5] By 2020 women numbered 2 (recently reduced from 3) graphically illustrating the systemic stagnation.

Further- “I am very concerned that our traditional recruiting ground is not moving forward. There is not a lot I can do about that.”5 – displays resignation if not complacency.

Merit v Diversity? :

Significantly, agreement greeted Lord Irvine of Lairg’s “I yield to no one in my desire to promote diversity, but there is an underlying question of principle, is there not? Do you believe that the desire to promote diversity could ever be allowed to trump the merit principle?”5 The echoing negative around the chamber shows the dept of the problem; merit and diversity are seen as competing rather than complimentary ideals.

But surely diversity is intrinsically meritorious -most obviously in the democratic legitimacy it provides. The report of the JAC ‘Judicial Diversity: Accelerating Change’ of 2014 makes the point: “The near absence of women and Black, Asian and minority ethnic judges in the senior judiciary, is no longer tolerable. It undermines the democratic legitimacy of our legal system; it demonstrates a denial of fair and equal opportunities to members of underrepresented groups, and the diversity deficit weakens the quality of justice”1

Evidence shows diversity affects verdicts- especially where race/gender discrimination is a factor. Brenda Hale examined this in the US in the wake of President Obamas Judicial diversity initiative- “a trial judge’s sex and race have very large effects on his or her decision making.”[6]

The CCA 2013 laid the ground for the Judges’ Council to set up the Judicial Diversity Committee (JDC) which reports annually on progress and makes recommendations.

Implementation of JDC initiatives such as removal of jurisdictional knowledge from lower tier appointments has broadened the pool of applicants (Action 13, 2018.)[7] The Judicial Work Shadowing Scheme (JWSS) also helps by offering applicants experience of being a judge.

Progress clearly is sluggish. Entrenched conservatism and risk-aversion hamper the process combined with a widespread fear that accelerating diversification would threaten the ‘merit principle.’

Lateral Thinking:

Looking abroad for answers could be instructive, notably e.g. Career Judiciary and Recognition Judiciary. The former involves appointment in junior posts or assisting senior judges, with promotions throughout a career. The latter typically selects from legal professionals who may be attached to a specific court. US courts commonly follow this method occasionally via direct election.[8]

Scope exists for redressing imbalance by either method above although Career Judiciary outscores recognition on protecting judicial independence. Abundantly clear, is that even with the best offices of the JDC, JAC and others, and a genuine wish across the judiciary for improvement, the situation remains unsatisfactory. The three Acts which have addressed this issue over the last 15 years have all been tentative in relation to the roles of the Lord Chancellor and the Lord Chief Justice. If the residual powers of these offices are hampering progress it may be that future legislation is required to complete reforms.

Thanks for reading my little research. I am grateful to my course Tutors in Northumbria University, My friend Simon C, My beloved late Mom and everyone. Please pass me your comment if you have read it.

Bibliography

Primary sources

  • Legislation

Constitutional Reform Act (CRA), 2005

The Crime and Courts Act (CCA), 2013

Secondary Sources

  • Websites & Journal Articles (Online)
  1. Judicial diversity committee of the judges’ council, ‘Judicial Diversity: Accelerating Change’, (Judicial Diversity Committee of the Judges’ Council Annual Report 2014, 01/12/2013) <https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Statements/diversity-statement-lcj-spt-dec13.pdf> accessed 3 December 2020
  2. Ministry of justice, ‘Diversity of the judiciary: Legal professions, new appointments and current post-holders 2020 statistics’ (Https://assetspublishingservicegovuk/government/uploads/system/uploads/attachment_data/file/918529/diversity-of-the-judiciary-2020-statistics-webpdf, 17/09/2020 ) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918529/diversity-of-the-judiciary-2020-statistics-web.pdf> accessed 6 December 2020
  3. Matt Carter, ‘Diversity in the English Legal System’ (The Student Lawyer, 27/09/2018 ) <https://thestudentlawyer.com/2018/09/27/diversity-english-legal-system/> accessed 4 December 2020
  4. House of lords, ‘ANNUAL ORAL EVIDENCE SESSION WITH RT HON LORD THOMAS OF CWMGIEDD, LORD CHIEF JUSTICE OF ENGLAND AND WALES’ (Uk Parliament , 7/05/2014) <https://www.parliament.uk/globalassets/documents/lords-committees/constitution/annual-oral-evidence-sessions-2013-2014/CONST070514EV1.pdf> accessed 4 December 2020
  5.  B. Hale, “Equality and the Judiciary: why should we want more women judges?” [2001] P.L. 489, 502.
  6. Judicial diversity committee of the judges’ council, ‘Report on Progress’ (Judicial Diversity Committee of the Judges’ Council Annual Report 2018, 01/06/2018) <https://www.judiciary.uk/wp-content/uploads/2018/06/judicial-diversity-committee-of-the-judges-council-annual-report-2018.pdf> accessed 3 December 2020, P.10

Books

  1. Helena Kennedy, Eve was Framed: Women and British Justice (Vintage, 1993), p. 267.

Journal Articles

  1. Nuno Garoupa, Tom Ginsburg, Hybrid Judicial Career Structures: Reputation Versus Legal Tradition, Journal of Legal Analysis, Volume 3, Issue 2, Winter 2011, Pages 411–448, https://doi.org/10.1093/jla/lar004

[1] (JAC report: ‘Judicial Diversity: Accelerating Change’, 2014).

[2] Helena Kennedy, Eve was Framed: Women and British Justice (Vintage, 1993), p. 267.

[3] Ministry of justice, ‘Diversity of the judiciary: Legal professions, new appointments and current post-holders 2020

statistics’ (Https://assetspublishingservicegovuk/government/uploads/system/uploads/attachment_data/file/918529/diversity-of-the-judiciary-2020-statistics-webpdf, 17/09/2020 ) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918529/diversity-of-the-judiciary-2020-statistics-web.pdf> accessed 6 December 2020

[4] Matt Carter, ‘Diversity in the English Legal System’ (The Student Lawyer, 27/09/2018 ) <https://thestudentlawyer.com/2018/09/27/diversity-english-legal-system/> accessed 4 December 2020

[5] House of lords, ‘ANNUAL ORAL EVIDENCE SESSION WITH RT HON LORD THOMAS OF CWMGIEDD, LORD CHIEF JUSTICE OF ENGLAND AND WALES’ (Uk Parliament , 7/05/2014) <https://www.parliament.uk/globalassets/documents/lords-committees/constitution/annual-oral-evidence-sessions-2013-2014/CONST070514EV1.pdf> accessed 4 December 2020

[6]  B. Hale, “Equality and the Judiciary: why should we want more women judges?” [2001] P.L. 489, 502.

[7] Judicial diversity committee of the judges’ council, ‘Report on Progress’ (Judicial Diversity Committee of the Judges’ Council Annual Report 2018, 01/06/2018) <https://www.judiciary.uk/wp-content/uploads/2018/06/judicial-diversity-committee-of-the-judges-council-annual-report-2018.pdf> accessed 3 December 2020, P.10.

[8] Nuno Garoupa, Tom Ginsburg, Hybrid Judicial Career Structures: Reputation Versus Legal Tradition, Journal of Legal Analysis, Volume 3, Issue 2, Winter 2011, Pages 411–448, https://doi.org/10.1093/jla/lar004

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