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diversityOn 6 November 2014, Sir Geoffrey Bindman QC and Karon Monaghan QC published a report Judicial Diversity: Accelerating Change, which could become part of a future Labour Government policy following the May 2015 general election. The report serves to emphasise the lack of women and Black, Asian and ethnic minority (BAME) judges in the senior judiciary and the resulting absent democratic legitimacy to the judicial system. Bindman and Monaghan detail how the reputation of our judges as a ‘vital national asset’ is ‘under threat'[1]. The report was commissioned in April by the Shadow Secretary of State for Justice – Sadiq Khan – as a guide for what a future Labour Government could do to redress the imbalance.

As it stands, according to the report, senior judges are ‘almost exclusively of members of a small class – white, male, heterosexual and with a socially and economically advantaged background'[2] and the ‘near absence’ of women and BAME judges is ‘no longer tolerable'[3]. Although the statistics are slightly better in the lower levels of the judiciary, there is only one (the only ever)female justice on the Supreme Court – Lady Hale, and only eight[4] of the 38 judges in the Court of Appeal are women. Countries in the Council of Europe have judiciaries with an average of 52% men and 48% women – evidence that the UK is behind. There is not one BAME judge on either the Supreme Court of the Court of Appeal. As stated in the report ‘this is embarrassing and impossible to justify'[5] – as supported by quotes from Lady Hale that ‘diverse courts are better courts’ and Lord Neuberger stating that as a result of the imbalance ‘we do not have the best people'[6].

The report looks at practical steps to achieving a more diverse judiciary, taking into account what does and does not work in the current system, how the recruitment process could be better managed and what role, if any, there is for professional bodies in the path to diversification in the judiciary.

One of the key recommendations, and the most controversial, is the introduction of quotas in relation to gender and ethnicity. The proposal has been unpopular, even amongst those who seek to benefit from it, for fear of being perceived as getting a role to meet a quota, as opposed to on their merits. However, these concerns have been quashed by Lady Hale who believes that ‘no-one should apply for any job unless they think they are worth it’ and that people ‘should be happy to get it'[7]. The quota could call for at least a third of all senior judges to be women, mirroring the policy in the Belgium Constitutional Court. For BAME judges, other criteria may be applied to ensure the quota reflects the proportion of BAME adults in society. Quotas are already accepted in the UK under the Equality Act 2010, for example in relation to selecting candidates for political parties, and the system would follow the quota in the Supreme Court that there must be one judge from Northern Ireland, and one from Scotland, in the total of 12. The hope is that a quota will bring about faster change than encouragement with lack of requirement.

Another recommendation encourages more solicitors to seek a place on the High Court bench, as currently, only one High Court judge is a solicitor. His working hours are not a ‘helpful’ precedent for those considering the role, as he worked ’13 day fortnights'[8] to maintain his position as a judge and his role at his law firm – not an encouragement to those with responsibilities at home or those wanting to maintain some work/life balance. The report also wants to broaden the perception of those solicitors who would be suitable for the judiciary, and emphasise that it is not only equity partners in magic circle law firms who should consider it.

Also in consideration of those with families, the report recommends abolishing the circuit system, which requires High Court judges to ‘leave their home for weeks on end'[9], and instead having regional appointments. This comes alongside making judicial posts available part-time or under a job share (and if not the Lord Chancellor should have to publish reasons why), as-well as addressing career breaks, in order to promote flexibility for those with caring and parenting responsibilities.

Overall, the report brings to light some shocking statistics about the higher ranks of the UK judiciary. The 20 recommendations seek to provide guidance and suggestions to the Labour Government to address this concern, and ensure that the judiciary more closely reflects the society we live in and banishes the stereotype which acts as an off-put to suitable applicants. As stated in the first recommendation: the ability of a candidate to contribute to a diverse judiciary should be included in consideration of a candidate’s merits on application for judicial appointment.

 

[1] Judicial Diversity: Accelerating Change, page 7
[2] ibid., page 7
[3] ibid., page 5
[4] As of 1 October 2014. At the time the report was written, this was seven and is quoted as such.
[5] Judicial Diversity: Accelerating Change, page 10
[6] ibid., page 9
[7] ibid., page 51
[8] ibid., page 62
[9] ibid., page 44