The stereotype is that judges are Oxbridge-educated white middle-class men – and this is not too far from the truth. Three-quarters of all judges in England and Wales are male and 95% are white, leading Lady Hale to remark that we are ‘out of step with the rest of the world’.
Some are not bothered that our judges do not reflect wider society, but I disagree. To me it is a matter of principle. Confidence in those performing senior roles in society is enhanced if the public believe those taking decisions are representative of the population and have empathy from their life experiences.
This need not lead to a lowering of standards, as some claim would happen. The House of Lords Constitution Committee report on judicial appointments said ‘a more diverse judiciary would not undermine the quality of our judges and would increase public trust and confidence in the judiciary’. Broadening the pool from which the judiciary is drawn brings with it a wider range of backgrounds and experiences, informing and enhancing decision-making.
In too many instances, judges are not reflective of wider society. The UK is fourth-bottom in Europe on judicial gender balance. In the Supreme Court, only one judge from 12 is a woman. In the US Supreme Court it is a third; in Strasbourg 40%. Further, two-thirds of the Supreme Court was educated at Oxford or Cambridge. Less than one-fifth of 108 serving High Court judges are women; one in 20 is black and minority ethnic.
Amid the gloom are some bright spots. Across most of the judiciary, there has been progress in the last decade. Certain branches of the legal profession are remarkably diverse, such as legal aid. Those with practising certificates are broadly gender-balanced and one in eight is BME.
The hope was that grassroots diversity would work its way up through the system, accelerated by some of the changes brought in by the previous Labour government, not least allowing solicitors to become judges for the first time.
Alas, as the House of Lords report noted, ‘the so-called trickle up effect whereby greater diversity among young lawyers should lead to a more diverse judiciary has failed to emerge’. This same report warns that at the current pace, ethnic balance will not be reached until 2035, and gender balance until 2040. I am not prepared to wait this long.
I have asked two leading experts, Sir Geoffrey Bindman QC and Karon Monaghan QC, to come up with radical suggestions on how we can speed up moves to a diverse judiciary. Over the next few months, they will consult widely on ways the next Labour government can ensure the judiciary is more diverse.
This is important because evidence suggests that momentum is waning. Moreover, some of the coalition’s policies risk making the situation even worse. The government’s changes to legal aid will decimate one of the most diverse parts of the profession. If women and BME legal aid lawyers leave the profession today, they cannot be judges tomorrow.
I recognise there are some deep-seated problems in the profession. Judges are still overwhelmingly former barristers and QCs. And Alan Milburn’s social mobility taskforce report said in 2013 that ‘law still remains a socially exclusive profession’. But some evidence suggests it is deteriorating further. Pupillage figures show a rise from one-quarter from Oxbridge in 2009/10, to one-third in 2010/11. It is also increasingly white and less working-class.
There are no quick fixes to this problem. Some solutions may be more unpalatable than others. Disentangling judicial diversity from wider problems with career progression in the legal community is not an option.
However, none of this deflects from my determination that the next Labour government will return judicial diversity to the heart of our work to deliver a fairer, more transparent justice system.
Sadiq Khan MP is shadow justice secretary and shadow lord chancellor