Page 87 - Judicial Diversity Update report

Promoting diversity and appointing on the basis of merit are mutually
reinforcing because the wider the pool the greater the availability of talent, the
greater the competition for places and the greater the quality of appointments.
Lord Burnett of Maldon, Lord Chief Justice of England and
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Wales

5.6. As the Working Party took evidence for this Update, we kept returning to the
fundamental challenges of how merit is defined and how it is assessed.

5.7. The JAC has a statutory duty to appoint judges on ‘merit’. Like the judiciary
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and the JAC, the Working Party is committed to seeing the best possible
candidates appointed to the judiciary and promoted within it. However, without
an agreed description of what ‘merit’ looks like, we are concerned that it is too
often used as unconscious proxy for replicating the characteristics, qualities and
experience of the current cohort of judges.

5.8. The difficulties presented by defining ‘merit’ appear to be recognised by the
JAC, and we welcome their recent efforts to better understand and define
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merit. We are encouraged by the commitment of the JAC to conduct a ‘deep
dive’ analysis on the progression of target groups through the selection
exercises, though it is important that this be independently verified, and the
results are made public regardless of how uncomfortable the conclusions might
be.

Tackling affinity bias

5.9. As explored in our 2017 Report, behavioural science reveals that we are all
inclined towards and feel comfortable with those who bear similarity to us. It
is natural that judges involved in selection exercises bring an affinity bias to the
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task of assessing merit. As Lady Hale has said ‘it would not be impossible to

185 A changing judiciary in a modern age, 11 February 2019, p.1, available online at
https://www.judiciary.uk/wp-content/uploads/2019/02/mt-treasurers-lecture-final-for-publishing.pdf
186 Constitutional Reform Act 2005, section 63.
187 For example, the use of competency frameworks, see para 5.15 below.
188 S. Johnson, D. Heckman & E. Chan, If There’s Only One Woman in Your Candidate Pool, There’s
Statistically No Chance She’ll Be Hired, Harvard Business Review, April 2016, available online at
https://hbr.org/2016/04/if-theres-only-one-woman-in-your-candidate-pool-theres-statistically-no-
chance-shell-be-hired, report of a study by the University of Colorado: “It’s well known that people
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