Who is to judge?

17 Mar 2017

Ahead of the firm hosting the LSLA/Justice Panel Debate on the topic of improving diversity in the judiciary on 20 March, Litigation partner and president of the London Solicitors Litigation Association(LSLA) Ed Crosse shares his views on diversity with the New Law Journal.

“Once we accept that who the judge is matters, then it matters who our judges are” (Erica Rackley, Women, Judging and the Judiciary (2013), p 164).

Hopefully few, if any, would argue with this sentiment, or that a quality candidate should be prevented from becoming a judge because of their gender, race, religion, sexual orientation or social background. Why then does the judicial composition of our courts so poorly reflect the diverse society they serve? Not, it seems, because of any complacency or adverse bias by those responsible for selecting judges; the senior judiciary and Judicial Appointments Committee (JAC) have repeatedly said the proportion of women judges, black, Asian and minority ethnic (BAME) judges and others from underrepresented groups is far too low. Speaking last November, Lord Neuberger, President of the Supreme Court, expressed concern that in the Supreme Court, there is only one woman and the rest are 10 white males, only two of whom were not privately educated.

Where does the problem lie?
The problem pervades other levels of our courts. Magistrates are responsible for sitting on 95% of criminal trials, yet the majority are within 10 years of the retirement age of 70 creating an uncomfortable generational gap with the predominantly younger class of defendants over whom they administer justice. Similarly, only 20-22% of High Court and Court of Appeal judges are women—an improvement on 10% (from 20 years ago) but still far lower than it should be. At the current rate of change (a 0.5% increase of women each year) it could take decades to reach an acceptable balance.

Why has the pace of change been so slow?
Some point to the limited pool of candidates from which senior judiciary have been selected, namely the Bar, a profession itself traditionally dominated by white men from advantaged social and educational backgrounds. This is changing thankfully; women have been joining the legal profession in equal or greater numbers than men, but the so-called “trickle up effect” has failed to materialise to any significant degree in the higher courts. There has been an improvement at the District Judge level; in 2015/16, women accounted for 49% (93) applications and 60% (32) of the recommendations for immediate appointment.
The judicial appointments process has also changed. Gone are the days where a “tap on the shoulder” resulted in elevation to the bench. The JAC is required to apply statutory merits-based selection criteria, including the equal merit provision reintroduced by the Crime and Courts Act 2013. This states that where two or more candidates are assessed as being of equal merit, the JAC can prefer one candidate over another on the basis of race or gender to address a clear under-representation.

How to solve the problem
Some question whether such “tipping” provisions can be effective—how often do you have two truly equal candidates? Others advocate the introduction of “quotas”.

Opinions are divided here: some regard quotas as “insulting” as they may suggest a candidate has only been appointed because When advertising positions, the JAC has encouraged candidates from a wider pool than the Bar to apply, noting that the solicitors’ profession is more diverse at all levels than the judiciary. However, it doesn’t follow that solicitors will see part-time judicial appointment as compatible with managing a busy practice or financially viable. In the last year, of the 308 judicial appointments recommended by the JAC, only 4% were solicitors.

The route to achieving a full-time judicial appointment is not straightforward, and appeared even less so when the Ministry of Justice proposed limiting part-time fee-paid positions to a non-renewable term of six to eight years, after which you could only apply for a full-time position. The idea was to create “career progression” and to reduce the large pool of white men in their late 50s and 60s who have been recorders or DJs for 20 plus years. In reality, the proposal was likely to discourage younger, potentially more diverse candidates from applying; lawyers in their 30s or even 40s may be unwilling to commit to become a full-time judge at that stage of their careers, particularly given the present prohibition on re-entering private practice.

We now have a unique opportunity to improve diversity at the highest level. By the end of 2017 three Supreme Court judges will have retired; three more reach retirement age by 2018. The JAC is looking for candidates with “truly exceptional legal understanding, stature and expertise”, and “who will increase the diversity of the court” and it has pursued several initiatives to encourage a broader base of people to apply, including tours of the court, emails to law firms, insight sessions and even private one-to-one meetings with existing justices.

The date for applications concluded last week. It remains to be seen whether these initiatives will achieve their stated objective.

This article first appeared in New Law Journal on 17 March 2017.

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