Prisons and Courts Bill

Written evidence submitted by Professors Erika Rackley, Rosemary Hunter and Kate Malleson (PCB 15)

Judiciary aspects of the Prison and Courts Bill 2017

1. The authors are law professors working at the University of Birmingham and Queen Mary, University of London. They have written extensively on the judiciary, judicial diversity and judicial appointments. The authors are also members of the executive committee of the Judicial Diversity Initiative which serves as a forum for bringing together academics, practitioners, judges and policy-makers to work towards greater diversity on the bench.

Summary

2. The Prison and Courts Bill includes a number of measures introducing changes to judicial leadership roles, the deployment of judges and the operation of the Judicial Appointments Commission (JAC). This evidence focuses on Part 4 and Schedule 15 of the Bill.

3. The Bill provides an important opportunity to introduce a number of additional statutory changes specifically targeted at securing greater judicial diversity. To this end, we suggest the inclusion of the following amendments.

3.1 Impose a responsibility on the Judicial Appointments Commission for diversity outcomes.

3.2 Strengthen the judicial responsibility for improving diversity.

3.3 Amend ss. 63 and 64 of the Constitutional Reform Act to make clear that the ability to contribute to the overall diversity of the judiciary may be an important element of an individual’s merit.

3.4 Remove qualification restrictions preventing eminent legal academics from being appointed to the senior judiciary.

3.5 Reduce the number of judicial consultees required by statute to be consulted about applicants for senior judicial appointments.

4. Why judicial diversity is important

4.1 A diverse judiciary is essential to effective democratic governance. It is vital that the judiciary reflect those whom it serves across all relevant diversity characteristics, not only for reasons of fairness and legitimacy but primarily because a diverse judiciary is a better judiciary, one better placed to do its job – to deliver justice. Presently just 28 per cent of court judges are women, and just 6 per cent of court judges have declared a BAME background. In the senior judiciary, this decreases to 19 per cent and 1.2 per cent respectively. [1]

4.2 In November 2016 the Lord Chancellor announced a number of new measures aimed at encouraging women and BAME solicitors and barristers to become judges including ‘fast-track’ appointments processes. While there is much that can be achieved by way of administrative procedures, our research and experience suggests that there are also significant statutory barriers to facilitating greater judicial diversity. [2]

Suggested Amendments

5. Impose a responsibility on the Judicial Appointments Commission for diversity outcomes

5.1 An important factor that hampers the JAC’s effectiveness at securing greater diversity is the fact that the statutory framework in the Constitutional Reform Act 2005 does not identify judicial diversity as one of the JAC’s overriding goals.

5.2 The imposition of a statutory responsibility for diversity outcomes would not only encourage the JAC to adopt mechanisms within its own processes to ensure this, but would provide them with greater authority (and motivation) to challenge broader contextual and cultural attitudes which unnecessarily work to limit the pool of potential judicial candidates.

6. Strengthen the judicial responsibility for improving diversity

6.1 At the same time, the achievement of a more diverse judiciary should not be seen as the responsibility of the JAC alone. Experience both in the UK and overseas demonstrates that clear and decisive judicial leadership is essential to altering the make-up of the judiciary.

6.2 While a number of incumbents of official judicial leadership roles have demonstrated, and are demonstrating, effective and committed leadership on judicial diversity, initiatives and strategies in this area are largely dependent on the personal priorities of the post holders. This means that diversity initiatives can quickly fall down and off the agenda when post holders change.

6.3 Under s. 137A of the Constitutional Reform Act 2005 the Lord Chief Justice ‘must take such steps as he considers appropriate for the purpose of encouraging judicial diversity.’ We believe this is a positive first step, but would wish to see this responsibility extended to all formal judicial leadership posts and for the Lord Chief Justice to be placed under a specific obligation to include an account of the steps taken under this provision in the annual report which the Lord Chief Justice provides to Parliament.

6.4 A statutory responsibility on all judicial leadership posts for improving the diversity of the judiciary makes it more likely that the senior judges will adopt a range of strategies pursuant to this responsibility, including encouraging diversity in applications for appointments, mentoring junior judges, managing judicial workloads so as to ensure opportunities to undertake the kind of work necessary for promotion is available to judges from a range of backgrounds, and adopting policies to make judicial office attractive to a wider range of candidates. Reporting to and by the Lord Chief Justice on the measures adopted to discharge these responsibilities would ensure transparency and provide important encouragement to future appointees.

7. Amend ss. 63 and 64 of the Constitutional Reform Act to make clear that the ability to contribute to the overall diversity of the judiciary may be an important element of an individual’s merit

7.1 As currently set out in the Constitutional Reform Act, the JAC is required by s.63 to select solely on merit, while s.64 states that in performing its functions, it must have regard to the need to encourage diversity in the range of persons available for selection for appointments. Above we suggest that s.64 should be widened so that the JAC (along with leadership judges) is made responsible for the outcome of improving the diversity of the judiciary as a whole. As a discrete point, however, we note that the structure of these two provisions has the unfortunate (and perhaps unintended) consequence of suggesting that ‘merit’ and ‘diversity’ are separate concepts. Clearly this should not be the case, as the ability to contribute to the overall diversity of the judiciary, and hence to improve both the symbolic function of demonstrating representativeness and the quality of decision-making, may be an important element of merit. Accordingly, we would advocate redrafting of ss.63 and/or 64 to avoid this unintended and counterproductive effect.

8. Remove qualification restrictions preventing eminent legal academics from being appointed to the senior judiciary

8.1 One of the ways of achieving a more diverse judiciary is to widen the pool of candidates considered suitable for appointment. We were very pleased, for example, to see the efforts recently made by the Supreme Court to attract a wider range of applicants for the current vacancies on the Court. [3] In the course of encouraging a number of eminent academic colleagues to consider applying for these vacancies, however, it became evident that the current eligibility criteria for senior judicial appointment present a serious obstacle to the appointment of legal academics who would otherwise make an outstanding contribution to the judiciary. To be eligible for appointment to the Court of Appeal, candidates must have at least seven years post-qualification experience; for the Supreme Court the minimum is 15 years. Many legal academics, however, have either never qualified to practice, or have done so after having been academics for a long period of time and so do not have sufficient post-qualification experience to meet the requirement. 

8.2 Although we certainly endorse the need for a significant period gaining experience in law (which may include experience teaching and researching in law), the formal qualification requirement should be removed. Alternatively, it might be broadened to include having gained a PhD in law or equivalent. This would allow access to the appellate judiciary to a new pool of candidates with a different demographic profile, thereby increasing the possibilities for a more diverse judiciary.

9. Reduce the number of judicial consultees required by statute to be consulted about applicants for senior judicial appointments

9.1 Requirements for statutory consultation for most judicial appointments are set out in the Judicial Appointment Regulations 2013. Reg 30 states that for High Court selection exercises, the JAC must consult the Lord Chief Justice and may also consult one other person who has held the office or has relevant experience. This requirement tends to privilege senior barristers who appear regularly before the High Court and Court of Appeal and who will therefore be known by the statutory consultees. Conversely the requirement is likely to disadvantage, and may be off-putting to, qualified candidates from other backgrounds (e.g. senior solicitors, Circuit Judges or Upper Tribunal judges). In the interests of widening the pool of applicants for the High Court, the statutory consultation requirements should be reconsidered.

9.2 In the case of appointments to the Supreme Court, the statutory consultation requirements set out in Reg 18 of the Supreme Court (Judicial Appointment) Regulations 2013 are even more extensive, comprising all judges of the Supreme Court, the Lord Chief Justice, the Master of the Rolls, all Heads of Division, and the leaders of the Scottish and Northern Irish judiciaries, so long as none of these are members of the selection commission or applicants for appointment. All but two of these statutory consultees are male, all are white and all are members of the judiciary. Once again, this works to disadvantage non-traditional candidates – those who have not worked at the self-employed bar or in a more junior judicial role – as those consulted are likely to be unfamiliar with their expertise and experience. In this case, the number of statutory consultees is extraordinary and gives rise to real concerns about self-reproduction. We consider that the only members of this group who could justifiably have a claim to be consulted are the President of the Supreme Court (if for some reason he or she is not a member of the selection commission), the Lord President of the Court of Session in the case of Scottish appointments, and the Lord Chief Justice of Northern Ireland in the case of Northern Irish appointments.

April 2017


[1] Figures from: https://www.judiciary.gov.uk/publications/judicial-statistics-2016/.

[2] For a list of recent research in this area see http://judicialdiversityinitiative.org/research/.

[3] See Speech by Lord Neuberger 21 November 2016: https://www.supremecourt.uk/docs/speech-161121.pdf

 

Prepared 18th April 2017