On 1 June, the Judicial Appointments Commission released its annual official statistics. These statistics provide some breakdown of the diversity of those who apply and are recommended for judicial appointment.
Background
JUSTICE’s new Working Party report, Increasing judicial diversity, was launched on 25 April 2017. Our Working Party offered practical recommendations for change to improve the gender, ethnic and social diversity of our senior judiciary.
This year, for only the second time, the JAC ran a section 9(4) Deputy High Court Judge competition, open to those without prior judicial experience. It is particularly encouraging, as the JAC’s 2017 Statistics Bulletin notes (p13), that the eligible pool for the section 9(4) competition is 43% women and 13% BAME people – close to the general population. Our Report suggested that selectors should be tapping into a far wider pool of talent than just the Bar. JUSTICE therefore particularly welcomes the appointment of a full-time academic and Government lawyer in the section 9(4) competition.
JUSTICE was also pleased to see, in recent months, announcements of women and BAME people being appointed to some high-profile judicial positions, such as Resident Judge in Southwark Crown Court, Senior District Judge and Deputy Senior District Judge.
We also commend the JAC for its apparent success in appointing salaried judges to sit as Deputy High Court Judges in the section 9(1) competition; 50% of those appointed fell within this category. Chapter 5 of our Report speaks to the creation of a genuine “upward” career path – including recruiting senior judges from the more diverse Tribunals system.
The Official Statistics (2017)
Key points of concern to JUSTICE from this year’s Official Statistics are:
- “Among legal exercises overall, women represented 42% (741) of applicants, but only 35% (49) of recommendations for appointment, 7 percentage points lower than at the application stage.” (Bulletin, p10)
- “[I]n legal exercises, although 20% (347) applicants were BAME, just 6% (9) of recommended candidates for legal exercises were BAME, 14 percentage points lower than at the application stage.” (Bulletin, p10)
- “[S]olicitors represented 43% (746) of applicants to legal exercises, but just 10% (14) of recommended candidates, 33 percentage points lower than at the application stage.” (Bulletin, p10) This disparity worsens for senior exercises. In the Deputy High Court Judge (section 9(4)) round, for example, barrister-applicants were five times more likely to be recommended than solicitor-applicants.
- Women were less than a third of appointees in the Circuit judge competition. Just 5% of those recommended were BAME.*
- Women comprised only 35% of recommendations for both section 9(1) and section 9(4) Deputy High Court Judges – the key feeder into the High Court bench.
- Only one woman was appointed in the highly constitutionally significant positions of Court of Appeal judge, Chancellor of the High Court and Master of the Rolls. No one applied, or was appointed, from a BAME background.
“There is not much to celebrate in these figures. Women, BAME people and solicitors continue to be appointed in far fewer numbers than white, male barristers, and no mention is made of the social mobility data now collected by the Judicial Appointments Commission,” said JUSTICE Director Andrea Coomber.
“The JAC’s Official Statistics highlight why JUSTICE’s recommendations for increasing accountability for judicial diversity and exploring new routes to the bench are so important. At the same time we welcome the Judicial Diversity Committee’s 2017 High Court Support Programme – now extended to candidates without litigation experience – which provides the mentoring and support to strengthen the applications of women, BAME and candidates from less advantaged backgrounds to the bench.”
JUSTICE’s new Working Party report, Increasing judicial diversity, encouraged the JAC to provide more transparency in its published data – and to engage in frank, rigorous analysis. The Official Statistics this year are not as transparent as we would like. In particular:
- The JAC provides diversity statistics for applications, shortlisted applicants, and those recommended for appointment. Unfortunately, “shortlisted applicants” covers a variety of stages – from paper sift right through to interview. It is impossible to tell where (and why) certain groups – notably BAME people – fell out.
- The category of “salaried judicial office-holder” could usefully be broken down between salaried Tribunals and court judges, to enable analysis of any movement between the two.
- The JAC has stated publicly that it has been collecting data on the educational background of applicants since October 2015, in order to monitor social mobility. This is a very welcome step. However, neither that 18 months of data, nor any analysis, can be found in this year’s Official Statistics. Some insight can be gleaned from JUSTICE’s own internal analysis of the 21 people recently appointed as section 9(4) Deputy High Court Judges, of whom nearly 80% had an Oxbridge degree and 19/21 (90%) were Queen’s Counsel.
- Diversity statistics on the 2016 High Court round are subsumed into a general category of “Small Grouped Court Exercises” (SGCE), alongside very different posts such as Deputy Senior District Judge. A number of competitions that attracted only a tiny number of applicants were in this group – e.g. Senior District Judge and Senior Circuit Judge (designated Civil Judge), which each attracted two applications.
Looking at these SGCE as a whole, the JAC states that “women were more than twice as likely to be successful as men to be recommended”. This is the JAC’s “key finding” for these grouped exercises. (Bulletin, p6) They do not say whether this could simply be down to chance (the numbers involved are small), or most importantly tell us whether that holds true for the High Court, the single largest competition in the SGCE.
JUSTICE notes that only 9 women were appointed (compared to 20 men) in the SGCE. This fact may escape the casual reader. It is not mentioned alongside the “key finding” about women’s success rate in the SGCE. The reason is that relatively few women applied. Indeed, men outnumbered women as applicants five to one.
A key finding for SGCE could equally have been, but was not, that twice as many men were appointed as women. We are concerned that selectors sometimes focus on the positive at the expense of forthrightly analysing areas of improvement. As a crude hypothetical example, if only 2 women apply for a senior judicial post, and 1 is appointed, that is a 50% success rate for women. If, in the same competition, 100 men apply but 25 are appointed, then women are twice as successful as men (50% to 25%). But the end result is one female judge and 25 male judges.
JUSTICE’s report urges selectors to take some responsibility when far too few women or BAME people apply in any given competition. We are particularly concerned that male applicants outnumbered female applicants four-to-one for the most senior judicial posts (Court of Appeal, Chancellor and MR).
Our Working Party also focused on accountability for change, through such mechanisms as “targets with teeth” and a genuine responsibility on selectors and the judiciary to encourage many more applications from underrepresented group. The JAC’s news, while containing some welcome developments, only reminds us that our Working Party’s recommendations should be implemented as a matter of urgency.
Please direct any questions to: Rachel Jones, Civil Justice Lawyer at JUSTICE on rjones@justice.org.uk and 0207 7626414
* Correction: this sentence originally read “Women were slightly less successful than men in the Circuit judge competition”. In fact, the success rate of female applicants (24%) was marginally higher than male applicants (23%) in the Circuit judge competition. Male applicants greatly outnumbered female applicants (116 and 51, respectively). The percentages exclude those who did not declare their gender.