Opportunity knocks for UK’s Supreme Court to become more diverse
16 Thursday Feb 2017
Stephen Clear, Bangor University Features
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The UK judiciary has a long history of fairness, integrity and soundness of judgement – but not diversity.
In theory, the balance of judges’ ethnicity, gender and background should reflect society. Although there have been moves to improve diversity in the profession, the vast majority are still white, middle-class, private-schooled, Oxbridge-educated men.
However, a rare opportunity for change has arisen in the Supreme Court.
Established in 2009, the Supreme Court is the final court of appeal in the UK. As the highest court, it considers final appeals on both civil and criminal issues referred to it. The rulings, typically heard by five judges, not only finalise the case at hand but also help shape the country’s laws going forward. Judges are given life tenure when appointed to the Supreme Court, and usually retire at 70 years old.
In 2016, Lord Toulson retired from the Supreme Court. Lord Neuberger, Supreme Court president, also announced that both he and Lord Clarke will retire in 2017. In addition, Lords Mance, Hughes and Sumption will all reach retirement age in 2018. In the space of two years, at least half of the Supreme Court Justices will need replacing.
Few would now dispute the importance of a diverse judiciary – but the question is should the Supreme Court now be trying to accelerate developments?
Diversity matters
The role of the judiciary is different to that of parliament or government: MPs who make the law represent society as elected officials. Judges, appointed on merit, are there to apply the law impartially. Personal characteristics should not matter, but in reality a mixture of backgrounds, ethnicities and genders are necessary to better equip the judiciary with the skills to adjudicate.
Of the 12 current Supreme Court justices, all are white, one is female, and only two were state schooled. None of them would be considered as having “disadvantaged backgrounds”.
If we accept that judicial talent is widely distributed among the population, then the under-representation of well-qualified women, black and minority ethnic (BAME), LGBT and disabled judges suggests that we are missing out on the best talent.
More widely across the judiciary, while there has been an increase in female and BAME numbers overall, progress has been marginal, and largely within the lower courts. Only one in 20 judges are non-white, and fewer than one in four are female. In the Court of Appeal, there is not one BAME judge, and only 4.5% within the High Court.
Positive discrimination
In the future, the judiciary should be able to draw upon applicants with more varied backgrounds. The historic elitism of the legal profession has changed: in 1964 there were only 2,500 barristers and 32,000 solicitors, compared to over 15,000 and 122,000 today.
Nevertheless commentators have argued we now need to proceed urgently with positive discrimination appointments, aiming for a minimum 40:60 gender ratio across the judiciary, similar to the European Court of Human Rights.
Former Lord Chancellor Jack Straw also believed that the best way to diversify was to have positive discrimination, suggesting that underrepresented groups could be supported by, for example, having all-women shortlists, in a similar way to the House of Commons. His successor, Liz Truss, has expressed similar views. However, this presumes that all genders and ethnicities are given equal opportunities to succeed before they become eligible for judicial appointment. The Judicial Appointments Commission – which Straw himself established – was also introduced for the very reason of limiting prejudice on the basis of the individual’s sex, ethnicity or background. On this basis, gender specific shortlists could be counter-intuitive.
Positive discrimination has been met with mixed reviews from current Supreme Court justices. Lord Sumption branded it patronising and called for an honest public debate. To him, introducing criteria other than merit would result in a bench with fewer outstanding judges, and could put off talented candidates from applying.
Nonetheless, Lord Neuberger and Lady Hale have stated that the Supreme Court must now “lead the way” in diversifying the judiciary, and should not simply rely on lower courts to make changes. Consequently they have announced proposals for half-day “insight sessions” where a wider variety of potential candidates are given the opportunity to sit in the Supreme Court with the current justices. Other suggestions include appointing someone part-time, and more widely advertising opportunities beyond just the Bar Council and Law Society.
Accelerating diversity
So what actually needs to change? Rather than looking at accelerating individuals to the Supreme Court earlier, it would be better to look at what mentoring and promotion opportunities exist for underrepresented groups to first progress to the High Court. This will allow these individuals to develop the qualities to be appointed based on merit alone, without the need for any positive discrimination or accelerated promotion strategies. But this would also need to extend beyond the legal profession, for example, into diversity of Oxbridge admissions.
One must also remember that matters which reach the Supreme Court relate to highly complex points of law. Their interpretations establish precedents for all lower courts to follow. Such responsibility should only fall on the most qualified and experienced.
However, when Lord Neuberger talks of the need to attract diverse candidates to the Supreme Court, he limits scope to draw upon those with senior judicial experience. The statistics show the legal profession is slowly changing. But it will take time for a more diverse group to reach the pinnacle of a distinguished legal career and have sufficient experience for Supreme Court appointment.
It is not that the Supreme Court shouldn’t be concerned with diversity, but rather that the current wider composition of the judiciary is not yet ready to service an accelerated recruitment objective.
Stephen Clear, Lecturer in Law, Bangor University
This article was originally published on The Conversation. Read the original article.
3 comments
Malcolm Davies said:
16/02/2017 at 22:03
Frankly this piece should be called out for what it is-nonsense.
Judges are required to swear an oath to do justice without fear or favour.Suggestions that the judiciary are not diverse are simply coded arguments that the judges collectively are breaching their judicial oaths.What evidence is there for that?None.
The requirements for judicial office are:-
(a) lengthy experience as an advocate
(b) temperament(ie that the judge will not be tempted to intervene as an advocate)
The justice system is protected from elitism by ensuring the availability of jury trials.
Chris Ashton said:
29/03/2017 at 18:26
Having read the above piece, I feel obliged to highlight the ‘nonsense’ in the above comment. Particularly your point that being concerned with diversity is somehow ‘coded argument’. That is not even logical.
The author actually makes the point that positive discrimination appointments are not the solution…as for trial by jury, such is a fundamentally confused point to make (I thought we were discussing the appointment of Supreme Court Justices here and commenting on Lord Neuberger and Lady Hales’ shared objectives).
Stephen Clear said:
18/04/2017 at 12:32
Many thanks both for your thoughts and comments.
This piece was originally written for arguably a different audience (via the Conversation) under the original title “New Horizons for the Supreme Court: Is Accelerating Diversity the Answer?” The Conversation does have tighter word limits, hence the use of hyperlinks to add context to the discussions. However I thought it helpful to highlight the following:
From my perspective, I certainly never intended any ‘coded-arguments’ as per Davies’ suggestions.
As Ashton recognises, this piece is a response to Lord Neuberger’s Bar Council Law Reform Lecture 2016. The link can be found here: https://www.supremecourt.uk/docs/speech-161121.pdf
Within the lecture, Lord Neuberger stated that whilst ‘the higher echelons of the judiciary…suffer from a marked lack of diversity, there are improvements on the past.’ Nonetheless both he and Lady Hale are ‘keenly aware that the profession and wider society are looking to the Supreme Court to lead the way on diversity, rather than simply waiting for a ‘trickle up’ effect from natural developments made lower down.’
I do not adopt the ‘coded’ alternative meaning Davies highlights above, but would be interested to hear whether he feels the same still applies to Lord Neuberger’s words?
The arguments in favour of diversity are threefold (and certainly not reflective of the suggestion that our current judges are in breach of their obligations):
1) If judges are to exercise democratic power, we need a judiciary that ‘looks’ like the people it serves
2) A diverse court can address a greater range of perspectives, life experiences and backgrounds, thereby making it better equipped to carry out the role of adjudicating
3) If we accept that talent is widely distributed amongst the population, then the under-representation of well-qualified women, Black, Asian and Minority Ethnic (BAME); Lesbian, Bisexual, Transexual (LGBT); and disabled judges suggests we are missing out on the best talent.
The benefits of diversity were also highlighted by Neuberger and Hale as part of the BBC’s Law in Action series, where there were identifiable gender differences in the way decisions and judgments were read. (See further here: http://www.bbc.co.uk/programmes/b02x7t3w)
I do not support former Chancellor Jack Straw’s proposals that we can have positive discrimination in “appointing a woman over an equally meritorious man, or a black candidate over an equally meritorious white candidate.” The merit tests for judicial appointment will invariably not be as tangible and as strictly comparable as his illustration suggests. I also do not feel it would be possible to have all-women shortlists for judicial appointments, in adopting the same logic of the House of Commons. Jack Straw justified such analogies as ‘reasonable’ by referring to MPs as law makers. However such doesn’t recognise the different constitutional role and nature of judges (who apply and interpret the law) compared to MPs (who make the law). The role of the judiciary is different when compared to Parliament or Government. Society’s views have already been accounted for within the system, insofar as it is our MPs, for whom we vote, who make the law.
Others have referred to the fact that two Supreme Court judges must come from Scotland and one form Northern Ireland as evidence that positive discrimination can exist within the boundaries of merit tests.
I actually personally subscribe to somewhere between Lord Neuberger and Lord Sumptions views.
Lord Sumption did call for an honest public debate about positive discrimination in judicial appointments, but branded such as ‘patronising’ on two grounds:
1) If you dilute the principle of selecting only the most talented candidates, by introducing criteria other than merit, the result will be a bench with fewer outstanding judges.
2) It might lead to an adverse effect on the talented, well qualified individuals who would be inclined to initially make applications (as they do not fall in to one of the characteristics that are believed to need improved representation).
I can see the merits in both lines of thought. This is why I concluded that rather than pushing for ‘positive discrimination appointments’, we should instead holistically review what opportunities are available for under-represented groups to progress within the profession (from University admissions, to training contracts/pupillages, to lower level judicial appointments).
The question at Supreme Court level is very different. We should not fast track unsuitable, inexperienced, or unqualified candidates to the Supreme Court (indeed, contrary to Davies’ comment above, I do not believe this is what Lord Neuberger intended). Judicial appointments to the Supreme Court should always be on merit. However that should not stop us from being concerned with the figures as to how diverse our senior courts are, and what opportunities and support there is out there for under represented groups to progress.
With regards to Ashton’s comments about ‘trial by jury’, I believe Davies was adopting a wider definition of the justice system, which, whilst an important consideration, was beyond the focus of my discussions (i.e. the Court of Appeal and Supreme Court).
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For those looking for more up to date judicial diversity figures, they may be interested in reviewing: https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/