You published an article by Sir Geoffrey Bindman which gave a summary of his report to the shadow justice secretary on the topic of judicial diversity. By his conclusions Sir Geoffrey joined the illustrious ranks of predecessors who include Baroness Hale of Richmond, Lord Neuberger and the previous lord chief justice.
This group also constitutes a list of great legal minds who are seriously out of touch with life at the judicial coal face.
I would suggest that before they comment further about lack of diversity, they spend time at one of the numerous courts around the country where staff and judges struggle daily with litigants. I have in mind the possession lists at London courts such as Lambeth, Bow or Willesden, or in the North Midlands/South Yorkshire courts where there is a large population from the Indian sub-continent and eastern Europe.
They could do worse, too, than speak to members of that unacknowledged and undervalued army of volunteer helpers at court, whether from a local duty solicitor scheme or Citizens Advice, or occasionally a charity such as Shelter. If they spoke to such people as well as to the litigants they might find that different characteristics are valued.
What is valued is the ability to make eye contact and maintain it; to strike up a rapport with the litigant in a very short time despite a language barrier; to show that they listen to both sides and, where necessary, explain the remarks of one side to the other; to interrupt politely and with a clear explanation as to why, when a litigant does not understand what is needed, to focus on what will matter to the judge; and to explain a decision clearly, briefly and where needed sympathetically to a losing litigant.
Almost certainly not of the slightest interest to such litigants are the judge’s skin colour, gender, sexual identity if disclosed, religion, the social status of the judge’s parents, when the judge was born, and whether or not the judge has a disability. Indeed, in this judge’s experience, the only time a comment of a personal nature was made (to a colleague) was to wonder if the judge was not too young to be making these life-affecting decisions.
There was also a story which, if apocryphal, ought to be true, concerning a hearing at Lambeth some years ago. A deputy hearing a long and depressing housing list allowed a warrant to be suspended on terms. At the end of the case he said to the successful applicant: ‘If you pay then you can stay, but if you don’t pay you’re on your way.’ The usher subsequently reported that never in a month of Sundays had the applicant or indeed anyone else expected the judge to give his decision as a rap.
The effect of reaching out in an unexpected and unorthodox way was not to demean the bench but to show how a member of it could be fair and human at the same time.
I would also be curious to know how Sir Geoffrey dealt with his clients when in practice. Did he, for example, tell the worried and desperate that what really mattered was that they were being served by a solicitor who ticked all Sir Geoffrey’s diversity boxes? Or rather did he tell them that the person acting for them was the best qualified to do so? Of course, in many cases the best person may also tick some of these diversity boxes, but were not their experience and expertise of greater importance?
If excellence as a legal adviser was paramount, then what is the conceivable justification for the idea that to improve diversity, judges should be drawn from the ranks of those who are diverse and trained for the job? If Sir Geoffrey did not treat his clients this way then why should he inflict these ideas on them via the court system?
And if he is to proceed along the lines of picking the diverse rather than the most talented, then what is the batting order when deciding diversity choices? Does religion count higher than colour? If so, why? Why should disability outrank or be lower than gender?
Sir Geoffrey is quite correct with his comments about the selection requirements used by the Judicial Appointments Commission. The Constitutional Reform Act that established the commission does not define ‘merit’, which is clearly stated to be the only ground for selection. The act also goes on to say that all appointees must be of good character and then adds that diversity is to be encouraged.
The first chairman of the commission, Baroness Usha Prashar, seemed at times to get the priorities the wrong way round. At an early stage in its history the commission published a newsletter where a recent appointee said what a great passion she had for diversity. It would have been more reassuring if she had said her greatest passion was for justice, speedily and sympathetically delivered.
What Sir Geoffrey omits is one of the great scandals of the present system. After a candidate has gone through and passed all the sifts and selection exercises, the commission is then bound to consult the lord chief justice. Now, even if Lord Thomas were to hide behind a newspaper and observe each candidate as they came and went, I would bet that he would know none of them.
So he does what he and his predecessors have done: pass the request down the line to the respective presiding judges for each circuit. Now, they may possibly know applicants from the bar (thus giving such applicants an inherently unfair advantage over solicitor applicants), but even he or she will probably not know them all, so down the line the enquiry goes again, this time to designated civil or family judges in the various groups within a circuit.
They are more likely to know applicants, especially if they are at the bar, but again the judges with the greatest knowledge are the district judges for whom applicants deputise. The comments of these judges are then fed back up the line to the lord chief justice.
These comments cannot be seen by applicants, which is quite disgraceful (schedule 12 to paragraph 36(3) specifically exempts the commission from the Freedom of Information Act). By all means render the comments of the judges anonymous but surely they should not be secret. In this day and age that is wrong. The applicant should know what has been said, so they at least have an opportunity to correct or explain comments which may otherwise be highly prejudicial or just plain wrong.
No one argues that diversity in the judiciary is not a good thing, but surely in what is without doubt the greatest public service there is, merit should be paramount, uncluttered by notions of diversity. By all means find ways to encourage and assist those from ethnic minorities to apply for judicial roles, but not at the expense of merit. To do otherwise demeans those from diverse backgrounds who have been selected, and it insults the public if less meritorious candidates are appointed over more merit-worthy ones for the sake of diversity.
There is nothing wrong with being pale and (fe)male as long as you are a good judge. It is a lot better than being out of touch and out of date.
Successor to Solon is a deputy district judge who usually sits outside the M25
- See also, letters