The lack of diversity in our senior judiciary is not acceptable. There are very few women in our senior judiciary and even fewer BAME (Black, Asian and minority ethnic) people. We believe that increased diversity in the judiciary will positively shape the development of the law, and that it is important that justice is not only done by, but can be seen to be done by, a judiciary which is more reflective of society today.
The Judicial Appointments Commission, the senior judiciary, and the legal professions have all expressed their commitment to a diverse judiciary, but despite this commitment, little has changed. While women, and to a lesser degree BAME people, are becoming District Judges and Tribunal Judges in higher numbers, in the more senior judiciary change has been slow to non-existent.
JUSTICE has long worked on the effective operation of the judiciary, with key reports in 1972 and 1992, the latter of which proposed a body very similar to what became the Judicial Appointments Commission. It is timely for us again to turn our gaze to the role of judges, how they are recruited and promoted, and how their composition relates to the society they serve.
In the next three years, 9 out of 12 judges currently serving on the Supreme Court will retire and be replaced. Many of these appointments will be made from the Court of Appeal – itself increasingly elderly, mostly male and completely white – which will result in more vacancies for applicants from the High Court, with cascading vacancies down the judiciary.
In parallel, the Judicial Appointments Commission has just celebrated its tenth anniversary and has just recruited a new Chair, Lord Kakkar, who is taking up the post in October 2016. The Judicial Appointments Commission has a limited, but critical role in recruitment to the judiciary and in promotion through the ranks in England and Wales. The Commission has had some impact in the lower judiciary, though much less success in the more senior judiciary.
The senior judiciary itself is concerned by the lack of diversity within its ranks with Lord Neuberger, the President of the Supreme Court, pointing out that a combination of recruitment from the Bar and a lack of strategy has resulted in a judiciary that is ‘male, white, educated at public school, and from the upper middle and middle classes’.
JUSTICE has decided to take up the challenge of reimagining the appointment and promotion of judges, with a view to a more inclusive, diverse judiciary.
The Working Party
For many years, JUSTICE has engaged its membership in law reform activities through Working Parties which draw upon our members’ range of knowledge and experience, as well as on best international and comparative practice. These Working Parties have been responsible for some of our most influential and significant reports, starting with recommending the establishment of an Ombudsman back in 1961. More recently, our report, Delivering Justice in an Age of Austerity has reimagined the civil justice system, with recommendations that have formed the basis for the current HMCTS Reform Programme and civil justice reform proposed by the senior judiciary.
Chaired by leading public law silk, Nathalie Lieven QC, the Judicial Diversity Working Party brought together leading legal authorities in this field – from academia, the civil service, the retired senior judiciary and the legal professions – while also drawing from similar experiences of other sectors. The members of the Working Party were:
- Sir John Goldring
- Sir Paul Jenkins
- George Lubega
- Professor Rosemary Hunter
- Diane Burleigh OBE
- Sa’ad Hossain QC
- Karamjit Singh
- Kate Cheetham
- Ruchi Parekh
- Stephen Frost
- Geoffrey Robertson QC
- Tim Smith
- Andrea Coomber (Director of JUSTICE)
The Working Party considered appointments to the Circuit Bench, High Court and Court of Appeal in England & Wales, and to the UK Supreme Court. We focussed on gender and ethnic diversity, recognising their relationship to social mobility, though mindful of maximising inclusion for people with other protected characteristics such as LGBT people, and people with disabilities.
We considered how other jurisdictions, industries and professions have addressed the need for greater diversity. Throughout this work, JUSTICE engaged with relevant stakeholders including senior judges interested in judicial diversity and the Judicial Appointments Commission.
The Working Party report, Increasing Judicial Diversity was published on 25 April 2017 at at Berwin Leighton Paisner LLP in London. It gives practical recommendations, exploring the structural barriers faced by women, people from visible ethnic minorities and those from less advantaged socio-economic backgrounds in reaching the bench. It also explains why diversity is a vital constitutional issue, calls for systemic changes to increase accountability and improve recruitment processes, and proposes more inclusive routes to the senior bench.
The report sets out a series of measures to encourage underrepresented groups to embark upon a judicial career and to give them a fair chance of appointment to the bench. The report’s recommendations include:
- Introducing targets “with teeth”, i.e. targets for selection bodies, with the “teeth” being obligations to comply and/or explain, reporting on progress to the Justice Select Committee.
- Creating a permanent “Senior Selections Committee” dedicated to appointments to the Court of Appeal, Heads of Division and UK Supreme Court. This Committee would, alongside the JAC, set targets for diversity for each level of the judiciary, reporting on its progress to a Parliamentary committee.
- Increasing accountability for diversity, through a general responsibility on selectors and the judiciary to encourage a much more diverse field of people to apply for senior judicial office.
- Introducing “appointable pools”, i.e. talent pools of suitable judges for each court. This requires a rolling, proactive programme of recruitment consisting of two stages: the first focussed on the qualities of the individuals applying, the second focussed on the needs – including diversity – of the court in question.
- An external review of selection processes.
- Creating an upward judicial career path, where junior lawyers can take up an “entry-level” position in the Tribunal system or on the District bench and stand a meaningful chance of promotion to the senior judiciary.
- A “Talent Management Programme” to enable talented judges to progress their career.
- Ensuring more attractive, inclusive career paths and working conditions, including making flexible working the default.
Berwin Leighton Paisner LLP provided generous support to the Working Party. JUSTICE is immensely grateful to have BLP on board.