The judiciary – still too pale, male and stale?

There was a time, in those unreconstructed days before the Judicial Appointments Commission (JAC), when a woman would be turned down for judicial appointment simply because her skirt was deemed too short.

Or she looked bookish or spinsterish or headmistressy.

Or wore too much make-up.

Yes, those were the days, not so long ago, when being pale, male and stale was a positive advantage when trying to get your rump on the bench.

That’s a white-skinned man who’s past his best-buy date for those of you who don’t like rhymes.

It also helped if you had been to public school and then Oxbridge, spoke posh, played golf, belonged to the right clubs and had the letters QC after your moniker.

You needed to be ‘straight’, too, of course, as well as pale, male and stale.

After all, it would be entirely inappropriate to have gay men disporting themselves in a judge’s sober ermine and silk.

Thankfully, that’s all behind us now and the JAC is busily creating a diverse judiciary that reflects the make up of the country upon which it sits in judgment.

Or is it?

Some 70% of lesbian, gay, bisexual and transgender (LGBT) lawyers believe that the judicial selection process still discriminates against them.

And the same proportion says they would be likely to apply for a judicial role themselves if there were more existing judges as role models who were openly gay.

This all comes from a report prepared by LGBT network the InterLaw Diversity Forum based on a survey of more than 150 practising LGBT lawyers.

Some 85-90% of respondents said that the creation of the JAC was a ‘positive development’ towards countering perceived prejudice in the selection process.

But there is a still a long way to go, although the JAC is now monitoring the sexual orientation of applicants to ensure that the judiciary reflects and serves the whole of society.

InterLaw founder Daniel Winterfeldt, partner at City firm CMS Cameron McKenna, said: ‘It is vital that the judiciary is seen to reflect the society it serves because confidence in the judiciary is so central to the functioning of a fair society.’

The diversity of the judiciary is clearly a hot topic at the moment because no less august a body than the House of Lords is also getting in on the act.

Last week saw the first evidence session of a House of Lords constitution committee inquiry into the fairness and effectiveness of the present judicial appointments system.

Cheryl Thomas, professor of judicial studies at University College London, told the committee that political leadership was required to achieve diversity.

That’s an audacious statement in a country where the independence of the judiciary is the jewel in the crown of our legal system!

‘President Clinton said that he wanted a judiciary that looked like America and that is what began to happen,’ Thomas said.

‘If we want diversity, we need political leadership.'

The argument convinced me.

Professor Alan Paterson, director of the University of Strathclyde’s centre for professional legal studies, also supported political involvement, saying that it was not feasible to expect the present JAC to ‘break the log jam’ and make the judiciary genuinely diverse.

He said: ‘This is only possible for politicians.

'The appointments system was transformed in Canada because politicians said they wanted to see women and people from ethnic minorities who can do the job on every shortlist.’

Dr Erika Rackley, Durham University senior lecturer in law, said that there was no tension between merit and diversity if it was accepted that a diverse judiciary did a better job than a non-diverse one.’

The inquiry is expected to continue until the end of the year.

So there you have it - progress on all fronts, albeit slow.

Let me close with perhaps my favourite - if that’s the right word - anecdote about discrimination against women applying for the judiciary before the JAC came into existence.

Praise was heaped upon a male barrister for arguing with ‘passionate conviction’ in court.

A woman barrister, in contrast, was criticised for lacking emotional detachment.

She was turned down for the judiciary: far too hysterical to become one of us, don’t you know, old boy….