Is the judiciary diverse enough?

This is a critical discussion about recruitment of judges, namely diversity within the appointment and selection of the judiciary. Judges have the responsibility of interpreting laws enacted by Parliament,[1] and although they strive to be impartial, they are human and are prone to prejudice and errors.[2] It does not really matter how appealing some people find “the fiction of the formalistic judge with superhuman powers of impartiality and objectivity”; the reality is that this is a fiction; it is not just untenable but also self-defeating.[3] This essay will focus on how we can make reforms to ensure the judiciary in England and Wales it creates an equal balance between diversity versus meritocracy.

In the context of the workplace, diversity is primarily concerned with the Equality Act 2010 and protected characteristics such as “age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation”.[4] Eventually, the emphasis will shift from equality to one of equity as society comes to understand that treating everyone equally ignores the reality that some people are more disadvantaged than others. In order to achieve equality of opportunity, equity recognises that underprivileged or underrepresented groups may need extra resources and opportunities.[5] Under the 2005 reforms priority has always be given to merit when choosing candidates for the courts.[6] This paper will argue the application of the merit principle that has been at odds with the selection of a diverse judiciary in our highest courts that is more representative of the society that it serves.

In their study titled "Increasing judicial diversity," the JUSTICE's Working Party offered three potential reasons for the ongoing lack of diversity in the judiciary. First, there is the argument that there are not enough women, people of colour, and persons from less privileged backgrounds who are qualified for appointment as a result of the historical admission into the profession.[7] According to this theory, the legal profession lacks competent candidates. Although groups are underrepresented at the most senior levels of the independent bar and as partners in legal firms, this cannot be used as the only explanation for the lack of diversity in the highest positions in the judiciary.

The second reason given for the absence of diverse judges was that women and BAME candidates do not apply for these positions.[8] The "supply" of diverse candidates is frequently held to be responsible. To apply for a legally qualified positions within the judiciary; there is a need for at least 5 or 7 years of post-qualification experience (PQE). The applicants are usually barristers. Solicitors can also apply but the uptake has been significantly lower. Because solicitors come from more varied [socioeconomic] backgrounds compared to barristers, this is a concern. When mostly BAME and solicitors—apply for judicial positions, their chances of being chosen are much lower than those of white applicants or barristers.[9] According to research, underrepresented groups may not apply because of certain features of the application procedure or because it may be off putting to underrepresented groups.[10]

The last cited justification is that merit is the main guiding criterion in the selection of candidates for judgeship.[11] While the Constitution Committee - Twenty-Fifth Report Judicial Appointments argues that both merit and diversity are not inconsistent principles, this paper argues the contrary.[12] We need a clear definition for "merit," if it to be implied that obtaining merit and diversity are harmonious. While it is right that the best people are appointed to the bench and advanced within it, but it is concerning that "merit" might very quickly turn into a vehicle for unconscious prejudice and a predisposition to repeat the traits in the current judiciary.[13] This study therefore concludes that, correctly designed, increasing the number of women, people of colour, and socioeconomic diversity is necessary to achieve the greatest quality judiciary.

JAG Griffith, the author of The Politics of the Judiciary argued that social background and the socioeconomic profile of the Judiciary in England lacks any diversity, with judges being employed from the cohort of barristers. It is key to note that the bar is often referred to as an ‘old boys network’ which consist of members attending Harrow, Winchester or Eton prior to leaving for Oxford and Cambridge.[14] Griffith opines that senior judges of the judiciary have, through their schooling developed similar types of attitudes and mentality. They are conservative in nature, white, middle aged and their ideals align with public interest.[15] It is argued that the very structure of the Bar allows positions to be given out based on an antiquated schooling model and connections, and that these posts have traditionally been reserved for the old boys club. Nevertheless, it is disheartening to see that virtually little has been published on the topic, despite the fact that it merits an in-depth investigation. Therefore in order to get some answers a non-practicing barrister was interviewed as part of this study and he gave his view about how the tradition values attached to private educated Oxbridge model should be abandoned. He said:

“The lack of education diversity within the judiciary also cannot be ignored. Education diversity means the inclusion of people with an extensive range of academic attainment, and this attainment is measured through one’s type, and highest level of education obtained; its purpose and aims to determine one’s proficiency, ability, and expertness."[16] 

It was tradition that a judge would be given a “tap on the shoulder” by the Lord Chancellor when being appointed to their position.[17] The Judicial Advisory Commission (“JAC”) was established in 2006,[18] and at that time it was said that this would support a change of process, which then would prompt a change in which judges were chosen.[19] Despite the JAC’s supervising more open applications and the selection process for judicial appointments there is evidence which demonstrates that over the past 10 years that more transparency in the process of selection has not made any significant efforts to increase diversity and inclusiveness.[20] There are continued worries about the amount of openness and subjective decision making. The JAC's procedures have grown too bureaucratic, its operation is reactive rather than proactive, and their concentration is disproportionately on the process while their focus is inadequate on the outcomes.[21]  When it comes to organising recruitment processes in a manner that makes it easier to appoint people from varied backgrounds, there is a lot that can be learned by looking at how similar processes are organised in other industries.  Although England and Wales do not have a formally established route to high judicial positions, we do have a de facto professional path to get there. The non-practicing barrister was questioned as part of this study was asked what reforms are needed? He said:

“The problem with diversity in the judiciary is grass roots. If you want a diverse judiciary you need to have a diverse bar. More barristers coming in need to be from diverse backgrounds, more women, more people that have disabilities, more BAME etc.

Being poor is not a protected characteristic and there is a huge social divide amongst people that come into the profession as barrister and solicitors…

Not only does the status quo fundamentally outline a domination of elitism within the bar and judiciary, but also the presence of disparity in a social class configuration. If you want to change who becomes a judge you have to change who gets accepted into the bar.”[22]

But it can be argued that merit of achievement appears reasonable since the profession is seen as elitist and over-subscribed. The non-practicing barrister was asked: “Do you know any pupil that was chosen not on merit but rather because of a personal connection, such as the fact that they attended the same college, university or because they were related, or because of a financial incentive?”

“Absolutely, there was. There was a pupil who was studying with me at the time on the BTPC. Both of us attended the same university, thus our education and outcomes are comparable. On the bar exam, both of us received a rating of 'Very Competent.' His uncle was the owner of a High Street firm of solicitors. My learned friend was successful in obtaining a pupillage and is now practising as a criminal barrister. He informed me that his uncle had spoken to the chambers in question (where he would regularly send work).  His uncle had given the Chambers the assurance that his law practise would give the Chambers all of the criminal briefs they had going forward. Therefore, they came to an agreement to employ and train his nephew.”[23]

Being admitted to the Bar in the United Kingdom is a highly competitive endeavour that is mostly determined by an individual's academic performance as well as the institution at which they were educated.[24] Zimdars contends that success at the Bar[25] takes more than simply academic credentials. In point of fact, one also requires charisma, the ability to advocate for oneself, self-assurance, and the "X-factor." [26] But these things do not come naturally and to get there and go on to become a judge is largely determined by schooling, social standing and an individual’s starting position in life.

According to the BSB, their analysis of the recruiting regulations for barristers was a quantitative inquiry aimed at identifying specific fundamental themes. This provides a small understanding of decisions which are subjectively made through the recruitment process. The results of the investigation fail to address questions for example, what weight is given to candidates an education or experience or if the non-law student whether and how any business experience is assessed or the significance of any experience gained through mooting and mini-pupillages.[27] This is also recognised by the BSB stating:

“However, further quantitative analysis on how the selection criteria used influences the characteristics of those shortlisted, invited for interview, and offered pupillage could be very informative if the BSB had access to the data to be able to do so.” [28]

The absence of information and/or regulations in this area may provide room for misuse. The non-practicing barrister went on to say:

“There is a set of regulations in place to help make sure that the selection of a student is done in a fair manner. The regulations, as far as I can tell, were developed and implemented by the Bar Standard Board. They insist that all available jobs should be published, and that the most qualified applicants should be selected for open positions. It has always been based on the concept of merit.

The problem with this kind of arrangement for self-governance is that the rules can be and are ignored because something like recruitment is subjective, and there may be a motivating factor such as money or a personal connection which is the real and operative cause of a candidate getting a pupillage. Because it is in the best interest of all parties involved to keep this agreement secret, the true reason someone was chosen over another will never be brought to light.”[29]

Based on the findings of the BSB Diversity at the Bar 2021 report, a summary of the most recent diversity data that was available for the Bar in January 2022.[30] After eliminating those who had not submitted any information, the results showed that among people who come from ethnic minority backgrounds, there are some noticeable variances. When compared to the population of the UK that is of working age, there is a somewhat larger number of Asian/Asian British practitioners at the Bar (7.8% vs. 6.4%), and the same can be stated for those who come from Mixed/Multiple ethnic origins (3.6% vs. 1.7%). In contrast, the percentage of people at the Bar who are of Black or Black British origin is slightly lower than the percentage of people in the UK working age population who are Black or Black British origin (3.3% vs. 3.6%), and there is a greater relative underrepresentation for people who are of other ethnic groups (1.2% vs. 3.2%).

Since public schools are attended by more than three-quarters of the judges and a comparable percentage attended Oxford or Cambridge universities, it may be concluded that the judges are mostly from the upper middle class.[31] It is not very hopeful to think that the practise of selecting diverse senior judges will continue in the near future. Only the attitudes of succeeding generations have the power to alter the status quo. In conclusion, it is difficult not to observe that the current judicial selections procedure does not fully fulfil the independence and diversity. This is something that should not be overlooked.

“We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented”.[32]

Perhaps we should start to appreciate the importance of a diverse judiciary bceause of Lord Burnett of Maldon, the Lord Chief Justice, discussed about the recent controversy in which several members of Parliament were referred to the Parliamentary Commissioner for Standards after writing (on House of Commons writing paper) to judges in advance of a decision on whether or not to publish character references supporting a former Parliamentary colleague who had since been imprisoned. In a December 2020 press conference, the Lord Chief Justice explained:

“There needs to be sensitivity displayed by all branches of the constitution, so that is the legislature, the executive and the judiciary as to the proper sphere of the others. I am pretty confident that judges understand where the boundaries lie but I am less confident at the moment that all parliamentarians have an instinctive understanding of where those boundaries lie, and one of the things that I am concerned to think about at the moment is how we, the Judiciary, can help to ensure that the understanding is deeper”.

Even while the 2005 Act introduced some much-needed reforms to an otherwise antiquated and outmoded method of selecting judges, the law still needs to be updated in order to be adequate for the challenges that lie ahead. This may prevent appointments of candidates who come from the privileged backgrounds but, the subjective decision making may prevent appointments of candidates who come from diverse backgrounds. The concept of “merit” should be modernised in selection of candidates to the bar and thus the judiciary. Because of this, diversity is an essential component of the recruiting process for the judiciary.

Footnotes

[1] Courts and Tribunals Judiciary, Who are the Judiciary? (2022) <https://www.judiciary.uk> accessed 28 November 2022; Courts and Tribunals Judiciary, Judges and Parliament (2022) <https://www.judiciary.uk/about-the-judiciary/our-justice-system/jud-acc-ind/judges-and-parliament/> accessed 4 December 2022.

[2] K Warner and others, ‘Are Judges out of touch?’ (2014) 25 Curr. Issues Crim. 729 <http://ecite.utas.edu.au/91400#:~:text=Most%20jurors%20in%20the%20quantitative%20phase%20did%20not,not%20apply%20to%20the%20judge%20in%20their%20trial.> accessed 6 December 2022

[3] R. Jones, ‘Increasing Judicial Diversity – A Constitutional Imperative?’, U.K. Const. L. Blog (27th Apr 2017) (available at https://ukconstitutionallaw.org/)

[4] s.4 Equality Act 2010

[5] G Alam and A Forhad, ‘What makes a difference for further advancement of engineers: socioeconomic background or education program?’ (2021) 83 High Educ. 1260 <https://link.springer.com/article/10.1007/s10734-021-00741-4#citeas> accessed 4 December 2022; and M Diemer and others, ‘Best Practices in Conceptualizing and Measuring Social Class in Psychological Research’ (2013) 13 ANAL SOC ISS PUB POL 79. <https://spssi.onlinelibrary.wiley.com/doi/epdf/10.1111/asap.12001> accessed 4 December 2022.

[6] Section 64 of the Constitutional Reform Act 2005 Act

[7] JUSTICE’s Working Party report, Increasing judicial diversity, (2020) at <https://files.justice.org.uk/wp-content/uploads/2017/04/06170655/JUSTICE-Increasing-judicial-diversity-report-2017-web.pdf accessed 24 December 2022> paragraph 1.17 accessed 24 December 2022

[8] JUSTICE’s Working Party report (Note 7) paragraph 1.19

[9] Judicial Appointments Commission annual statistics on applications and recommendations for

appointment show diversity data on gender, ethnicity and professional background at <https://jac.judiciary.gov.uk/>

[10] Judicial Appointments Commission, Barriers to Application for Judicial Appointment Research,

June 2009, at <https://jac.judiciary.gov.uk/sites/default/files/sync/about_the_jac/

research-barriers-to-application-report-2009.pdf>

[11] JUSTICE’s Working Party report (Note 7) paragraph 1.20

[12] Constitution Committee - Twenty-Fifth Report Judicial Appointments at https://publications.parliament.uk/pa/ld201012/ldselect/ldconst/272/27202.htm 27 December 2022

[13] JUSTICE’s Working Party report (Note 7) paragraph 1.20

[14] J. A. G. Griffith, The Politics of the Judiciary, 5th edn (Fontana, 1997), p.18

[15] J. A. G. Griffith, (Note 14) p. 295

[16] See appendix. Answer 11.

[17] JUSTICE’s Working Party report (Note 7) paragraph 1.27

[18] s.61 Constitutional Reform Act 2005

[19] Section 64 of the 2005 Act, headed ‘Encouragement of diversity’, states “[T]he Commission, in performing its functions under this part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments”. 

[20] Rosemary Hunter, More than Just a Different Face? Judicial Diversity and Decision-making, Current Legal Problems, (2015) 68(1) 119–141, https://doi.org/10.1093/clp/cuv001

[21] JUSTICE’s Working Party report (Note 7) paragraph 1.27

[22] See appendix. Answer 11.

[23] See appendix. Answer 5.

[24] Philip Kirby, Leading People 2016: The educational backgrounds of the UK professional elite (The Sutton Trust 2016).

[25] Anna Zimdars, ‘The Profile of Pupil Barristers at the Bar of England and Wales 2004–2008’ (2010) 17(2) International Journal of the Legal Profession, 117

[26] M Jackson, ‘Non-Meritocratic Job Requirements and the Reproduction of Class Inequality: An

Investigation, (2001) 3(15) Work, Employment and Society, 619

[27] BSB, ‘Review of Pupillage Advertising and Selection Criteria, Research conducted by the Bar

Standards Board Research, Policy and Authorisations Teams’, January 2019 <https://crimeline.co.uk/wp-

Content/uploads/2019/01/review_of_pupillage_advertising_and_selection_criteria_draft_v1.pdf>    

[28] BSB, ‘Training Requirements’, (2019) <https://www.barstandardsboard.org.uk/qualifying-as-a-barrister/bar-training-requirements/bar-qualification-manual-index/>

[29] See appendix. Answer 8.

[30] Bar Standards Board, Diversity at the Bar 2021 A summary of the latest available diversity data for the Bar, Published January 2022 at <https://www.barstandardsboard.org.uk/uploads/assets/be522642-160b-433b-af03a910a5636233/BSB-Report-on-Diversity-at-the-Bar-2021.pdf> accessed on 24 December 2002

[31] Harding E, ‘Three quarters of top judges went to private school, study shows amid calls for greater social mobility in the legal sector’ The Daily Mail (London, 24 November 2015) <https://www.dailymail.co.uk/news/article-3331339/Three-quarters-judges-went-private-school-study-shows-amid-calls-greater-social-mobility-legal-sector.html> accessed 5 December 2022

[32] Elie Wiesel, Nobel Prize acceptance speech, December 10, 1986.