A diverse judiciary dispenses better justice and it’s time we took radical steps to create one.
In April, shadow justice secretary Sadiq Khan invited Karon Monaghan QC and me to suggest what a Labour government could do to ensure our judges better reflect wider society. Last week we handed him our report.
The balance between men and women among senior judges compares poorly with other countries. In 2012, we ranked fourth worst in Europe. More shamefully still, there is no black, Asian or minority ethnic judge in either the Court of Appeal or Supreme Court. In the Supreme Court, 11 of 12 judges are white men. Only seven of 38 judges in the Court of Appeal are women.
In the US and Canadian supreme courts, three of nine judges are women. In Australia, there are three women among seven; in New Zealand, two out of five. Can we claim to have the best possible judiciary when it is drawn from such a narrow sub-section of society?
Judicial diversity is a concern for three main reasons. A judiciary composed almost exclusively of a small class cannot command broad community respect. It lacks democratic legitimacy. The impediments to a judicial career faced by apparently qualified women and minorities create unfairness and inequality in the pursuit of a valued career. And a diverse judiciary dispenses better justice.
Until the Constitutional Reform Act 2005, the appointment of judges was in the sole discretion of the lord chancellor, whose decisions were based on secret soundings, followed by the ‘tap on the shoulder’.
The act created the Judicial Appointments Commission (JAC) to bring greater transparency to the system. It is responsible for recommending candidates for appointment, but the Supreme Court is excluded from its remit.
The statute provides that ‘selection must be solely on merit’ and that the JAC ‘must have regard to the need to encourage diversity in the range of persons available for selection’. ‘Merit’ is not defined. Ironically, Lord Falconer told the Lords Constitution Committee that ‘merit is regarded as coterminous with having been a junior and a QC at the bar for 30 years’.
The JAC has formulated six ‘qualities and abilities’ used to assess merit, but they do not include the contribution a candidate may make to diversity. It is not entirely clear the statute allows them to do so. However, as Lady Hale has said: ‘What a person can “bring to the mix” is an important component of [their] merit.’
Contribution to diversity is itself a factor to be taken into account in assessing the merit of candidates.
The JAC is hampered not only by being too cautious in some respects but also by factors beyond its control. There are conditions of judicial employment which can deter potential candidates from under-represented groups from applying, especially those with family responsibilities. In the report, we examine the circuit system, which can require long absences from home, and recommend its replacement by regional appointments. Restrictions on part-time work and short-time appointments can be a barrier, as can restrictions on returning to private practice after leaving a judicial post. These restrictions are unnecessary or too wide.
Another impediment is the view that an appointee must already have substantial judicial experience. This approach obviously favours Lord Falconer’s long-serving barristers – a largely white male category.
We recommend improvement in judicial training and a greater willingness from solicitors’ firms to release their aspirant judges for that purpose and for part-time appointments to fit them for permanent posts.
The greatest barrier may be the survival of the traditional stereotype of the judge described by Lord Neuberger. It produces the feeling among many women and ethnic minority lawyers that becoming a judge is joining a club in which one is not welcomed as a member.
A cultural change is needed and only a significant improvement in diversity will achieve it. This may be the strongest argument for a quota system.
Sir Geoffrey Bindman QC (Hon) is senior consultant with Bindmans