House of Lords - Judicial Appointments

Judicial Appointments - Constitution Committee Contents

Chapter 3: Diversity

68. We take it as a given that no-one should be prevented from becoming a judge merely by reason of their sex, race, religion or other protected characteristic as defined in the Equality Act 2010.[115] Freedom from discrimination is a basic principle of fairness and equality which is enshrined in law. The concept of diversity goes much wider than this, however. The judge inhabiting a court room in England and Wales is stereotypically a white male from a narrow social background. Despite concerns raised over the last few decades, the proportion of women judges, black, Asian and minority ethnic (BAME) judges and others from under-represented groups has increased too slowly.[116] Many of the causes for this appear to stem from the structures of the legal professions (barristers and solicitors) and the pool of available mid-career legal professionals eligible and interested in putting themselves forward for selection. However, other barriers arise as a result of the appointments process itself or of the structures of the courts and tribunals in which judges work.

69. The slow rate of change is not only a problem for those whose careers are affected; it is a problem for society as a whole. We examine in this Chapter why diversity is important and what changes to the constitutional and legal framework might help to bring about a truly diverse judiciary. Although considerations of judicial diversity tend to focus on women and BAME candidates for judicial appointment, and certain aspects of this report are focused on the particular needs of women, we stress that diversity incorporates a number of different elements including disability, sexual orientation, legal profession and social background. The arguments in favour of a diverse judiciary are even stronger if diversity is approached in its widest sense.

TABLE 1

Progress towards improving diversity—women and BAME judges[117]

Year	Judges in post	% Women	%BAME
1998	3174	10.3%	1.6%
1999	3312	11.2%	1.7%
2000	3441	12.7%	2.1%
2001	3535	14.1%	1.9%
2002	3545	14.5%	2.0%
2003	3656	14.9%	2.2%
2004	3675	15.8%	2.5%
2005	3794	16.9%	2.9%
2006	3774	18.0%	3.8%
2007	3545	18.7%	3.5%
2008	3820	19.0%	4.1%
2009	3602	19.4%	4.5%
2010	3598	20.6%	4.8%
2011	3694	22.3%	5.1%

The constitutional significance of a diverse judiciary

70. We do not consider that the concept of merit should be narrowly focused on intellectual rigour.[118] Although the simple fact of being a member of an under-represented group will not in itself make someone a more meritorious candidate, our witnesses pointed to "limited empirical evidence that diverse judges can improve the decision-making process."[119] Judging is a complex activity: it is necessary for judges to understand the wide array of concerns and experiences of those appearing before them.[120] A more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself.[121]

71. None of our witnesses argued that increasing diversity risks reducing the quality of the current judiciary. However, Lord McNally drew our attention to the comments of "a very senior judge" who asked:

"whether I could guarantee that in 20 years' time, under the kind of reforms that the Lord Chancellor would have carried through, we would have greater diversity, and whether the senior judiciary would still have the same intellectual integrity, respect and international reputation that it does today. What he was basically saying was, 'If we have all these women in there, will all these things fall away?' I do not believe that they will."[122]

72. We consider it our responsibility to refute any notion that those from under-represented groups make less worthy candidates than the stereotypical white male. Indeed, we believe that increasing the pool of talent available will lead to an increased number of meritorious candidates from which to select. As Lord Neuberger MR argued:

"if ... women are not less good judges than men, why are 80% or 90% of judges male? It suggests, purely on a statistical basis, that we do not have the best people because there must be some women out there who are better than the less good men who are judges."[123]

73. Justice, fairness and equality are central values in the law which should be reflected in the composition of the judiciary itself.[124] Judges are independent of Parliament and the executive, but they should not stand apart from the society in which they adjudicate: the public must have confidence in the judges who make the decisions which affect their day to day lives.[125] This is less likely to be the case "if you have tribunal after tribunal with three members, all of whom are white men, particularly if that does not reflect the applicants coming through."[126] People appearing before a court must trust the judges to make decisions based on fairness: levels of trust will be greater if the judiciary itself is seen to have been fairly appointed.[127] As Lady Justice Arden argued: "People may well have more confidence that their concerns have been taken into account if the judiciary reflects more of a cross-section of society."[128]

74. A more diverse judiciary would not undermine the quality of our judges and would increase public trust and confidence in the judiciary.

Barriers to a more diverse judiciary

75. Traditionally judges came primarily from the Bar, a profession itself dominated by white men from privileged social backgrounds. That few judges from under-represented groups were appointed thirty or forty years ago could be explained largely by reasons which were not specific to the judicial appointments process, such as lack of educational opportunities, discriminatory work practices and formal barriers to entering the legal profession.[129] We have not attempted to extend our inquiry to such wider historic social issues. But we note that other professions, for example the senior Civil Service,[130] have made much greater and faster improvements in diversity over the last few decades. We also note that women have been studying law and entering the solicitors profession in equal or greater numbers than men for over twenty years.[131] Yet the so-called trickle-up effect whereby greater diversity amongst young lawyers should lead to a more diverse judiciary[132] has failed to materialise to any significant degree.[133]

76. There are four points at which diversity fails to trickle-up. The first is at the junior ranks of the legal profession. There is a significant attrition rate for women in particular which means that many do not reach the level of applying to become a judge. We have not examined the reasons for this in any depth in this report, but we stress that it is the role of the professions and, in particular, the Bar Council and the Law Society, to ensure that the brightest and the best lawyers from all backgrounds are able to progress to a point where appointment to the judiciary becomes possible.

77. The second point is when potential candidates are considering whether to apply. Under the old model of a "tap on the shoulder" from a senior judge, certain types of lawyers (typically barristers known to senior judges through appearances in court) were encouraged into the judiciary whilst others (such as solicitors) would not have been given an opportunity. The more open application system created by the CRA has gone some way to alleviate this. However, under the former system it would have been possible to promote candidates from under-represented groups by suggesting that someone apply who would then be less likely to be rejected. Arguably, this means of encouraging applications has been lost.[134]

78. Under s 64 of the CRA, the JAC is subject to a specific duty to encourage diversity in the range of persons available for selection for appointment. Our witnesses welcomed the way the JAC has approached this duty. As Professor Dame Hazel Genn, a JAC commissioner, explained: "In terms of widening the pool, it is about outreach work; it is about myth busting; it is about improving confidence; and it is about educating people about our processes so that they know what they have to do."[135] It should equally be possible for senior members of the judiciary to recognise and promote talent by encouraging applications from under-represented groups. Lord Neuberger MR told us that:

"going out to encourage women and ethnic minorities ... to apply to become a judge is something that the senior judiciary have a positive obligation to do. We are not doing it enough and I include myself in that criticism."[136]

79. We agree that the senior judiciary have an important role to play in encouraging applications from under-represented groups. Whilst individual judges cannot, and should not, determine the outcome of a specific application, senior judges should be sufficiently well-informed about the process to be able to advise candidates and encourage them to apply.

80. The third point is the applications process itself whilst the fourth constitutes the working terms and conditions of the judiciary. There should be no impediments, structural or otherwise, contained within either the appointments process or the job description that cause lawyers from under-represented groups either not to apply or to fail in their applications despite having the potential to become effective judges. We focus in this Chapter on the reduction of such impediments.

81. In 2010 the Report of the Advisory Panel on Judicial Diversity, chaired by Baroness Neuberger, was published.[137] Whilst concluding that there is no "quick fix",[138] the Report contained 53 recommendations to improve judicial diversity and argued that these had to be implemented as a package.[139] The Government have committed to implementing all 53 recommendations "and will work together with the Lord Chief Justice, the JAC, the Bar Council, the Law Society and the Institute of Legal Executives" to do so.[140] However, Baroness Neuberger informed us that the Panel believed: "that considerably greater progress could have been made on most of what we said [i.e., implementing the Panel's recommendations] and that it did not require huge amounts of money, which has been the excuse for why some of it has not happened."[141]

82. We examine a small number of the Advisory Panel's more significant recommendations below, in particular those which relate specifically to the appointments process and which would require legislative change. We have not considered it necessary to go over every one of the Panel's recommendations: some fall outside the remit of this Committee whilst others require no further reasoning or evidence for their value to be seen. We support all the recommendations of the Advisory Panel on Judicial Diversity and urge all those responsible to implement the recommendations more rapidly than hitherto. Lack of specific comment in this report on a particular recommendation should not be read as an indication that we regard it as unimportant.

Appointment on merit

83. It is axiomatic that judges must be appointed on merit. How this is to be applied in practice was the subject of much debate during the course of our inquiry.

THE CHARACTERISTICS OF MERIT

84. The concept of merit incorporates a range of different skills and qualities, in addition to the intellectual capacity necessary to become a judge. A number of our witnesses drew attention to the fact that merit is still regarded by many in the legal profession as equating to high quality advocacy;[142] this naturally favours QCs, and it is QCs who are most likely to fit the white male stereotype.[143] We consider that it is the capacity to be a good judge, not the capacity to be a good barrister, which is essential to merit. The two may overlap, but not necessarily. There are a number of lawyers with limited experience of advocacy who would make excellent judges.

85. We note the JAC's definition of merit which is contained in Box 2 below, in particular the recently amended criterion which requires candidates for judicial posts to have: "An awareness of the diversity of the communities which the courts and tribunals serve and an understanding of differing needs." The inclusion of this requirement followed a recommendation of the Advisory Panel[144] and was warmly welcomed by our witnesses, including Baroness Neuberger.[145] We likewise welcome the inclusion of this criterion which should help to improve the way in which those appearing before courts and tribunals are dealt with.

BOX 2

The JAC merit criteria

(1) Intellectual capacity

· High level of expertise in your chosen area or profession

· Ability quickly to absorb and analyse information

· Appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary.

(2) Personal qualities

· Integrity and independence of mind

· Sound judgement

· Decisiveness

· Objectivity

· Ability and willingness to learn and develop professionally

· Ability to work constructively with others.

(3) An ability to understand and deal fairly

· An awareness of the diversity of the communities which the courts and tribunals serve and an understanding of differing needs

· Commitment to justice, independence, public service and fair treatment

· Willingness to listen with patience and courtesy.

(4) Authority and communication skills

· Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved

· Ability to inspire respect and confidence

· Ability to maintain authority when challenged.

(5) Efficiency

· Ability to work at speed and under pressure

· Ability to organise time effectively and produce clear reasoned judgments expeditiously (including leadership and managerial skills where appropriate).

86. Determining merit is not a wholly objective exercise; the various criteria will be weighed up differently according to the importance attached to each one by the individual selector.[146] The perception that serving judges appoint in their own image is a persistent one which concerned many of our witnesses. Lord McNally drew attention to the danger of appointers looking to appoint "chaps like us"[147] whilst Baroness Neuberger stressed the wide-scale nature of this problem:

"we all have an inclination to appoint people who are like us. I certainly found as Chief Executive of the King's Fund that an astonishingly large number of middle-class, white, rather bossy women were being appointed—I cannot think why that should be."[148]

87. Different means of ensuring that the most meritorious candidates (in that term's fullest sense) are selected have been identified. The Advisory Panel on Judicial Diversity recommended that all selection panels should be gender and, wherever possible, ethnically diverse.[149] Diversity training for all those involved in the appointments process can help individuals to overcome any tendency to appoint in their own self-image.[150] As we stated above, it is also important for selection panels to include a mixture of lay and judicial representation.[151]

88. It is important that all the different elements of the JAC's merit criteria are properly taken into consideration and applied during the appointments process. In order to ensure that merit is not assessed on a narrow basis, all selection panels should themselves be gender and, wherever possible, ethnically diverse, all those involved in the appointments process must be required to undertake diversity training and lay persons must sit on every selection panel so that the judiciary are not solely responsible for the appointments made.

DIVERSITY AS AN ASPECT OF MERIT

89. The simple fact that an individual is from an under-represented group does not make him or her a more meritorious candidate than someone who is not. Diversity is not, in that simplistic sense, a part of merit. However, a suggestion made by some of our witnesses was that merit and diversity, whilst not identical, are related. Lord Justice Etherton argued that the courts must be sufficiently diverse in their expertise to be able to deal, as a body, with the work that comes before them; a candidate who can "bring to bear on a difficult subject ... some additional qualities" may therefore be considered more meritorious.[152]

90. This understanding of diversity as contributing to the overall effectiveness of a court may be particularly important in relation to appointments to the Supreme Court and Court of Appeal which sit in panels and where different perspectives are brought to bear by those hearing an appeal. Baroness Hale argued that:

"in disputed points you need a variety of perspectives and life experiences to get the best possible results. You will not get the best possible results if everybody comes at the same problem from exactly the same point of view. You need a variety of dimensions of diversity. I am talking not only about gender and ethnicity but about professional background, areas of expertise and every dimension that adds to the richer collective mix and makes it easier to have genuine debates."[153]

91. Lord Phillips suggested, though did not endorse, the following formula for Supreme Court appointments: "The commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and to the current composition of the Court."[154]

92. We note that the requirement to appoint "solely" on merit does not apply in the same way to the Supreme Court. UK Supreme Court selection commissions must "ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom."[155] There is therefore a practice that two serving justices will come from Scotland and one from Northern Ireland and, accordingly, a search for the best candidate for a vacancy sometimes focuses on one jurisdiction even though the Court serves the whole of the United Kingdom.[156] In this limited circumstance, based on the vital importance of representation of the different legal systems within the United Kingdom, the concept of merit is nuanced to reflect the needs of the court as well as the capabilities of the individual. This is not, however, comparable to the appointment of an individual from an under-represented group.

93. Lord Phillips described treating diversity as a part of merit as fudging the issue.[157] Lord Carswell further distinguished between the two concepts:

"to call diversity an element of merit is incorrect in principle, but diversity has an important role to play in two ways. One, you need the skills, knowledge and experience that diverse members of society can contribute; ... The other is the public perception. ... if the public confidence requires an element of people other than the traditional type of person, then you have to look at that. But I do not think you call it merit. ... you might have A, B and C: you cannot call them equal, but they are all very appointable, though they have different qualities, but one fills a need for a particular skill. I did see that happen at one appointment because we had exactly this situation; we appointed A, because A filled a need that we had. So do take it into account, but do not call it merit."[158]

94. We agree that diversity and merit are distinct concepts.

THE THRESHOLD DEFINITION OF MERIT

95. Under the CRA, appointments to the courts and tribunals of England and Wales must be made "solely on merit".[159] One issue which strongly divided our witnesses was that of whether merit should continue to remain the sole criterion for appointments or whether it should be treated as a threshold (or plateau) beyond which considerations of diversity could be taken into account. Professor Cheryl Thomas set out the argument in favour of having a merit threshold:

"What we are usually talking about is a number of individuals who are perfectly qualified and capable ... we are not talking about diversity allowing someone who actually is not capable of doing the job to be chosen because they would somehow create a more diverse judiciary, it is a question of saying that you need to consider a whole range of factors. ... there is a choice to be made. What impact will that choice have on the overall composition of the judiciary as an institution of the state?"[160]

Lord Falconer, the Lord Chancellor at the time of the introduction of the CRA, Roger Smith, Director of JUSTICE, and Nwabueze Nwokolo, Chair of the Black Solicitors Network, were all similarly in favour of a merit threshold.[161]

96. The weight of the evidence we received was, however, against the use of a merit threshold, primarily on the ground that it would undermine the core meaning of the merit principle.[162] The Lord Chancellor was particularly emphatic in his defence of this principle:

"The approach that I take is that one absolutely immovable thing is that we should appoint on merit. That has to be a fixed point because, if you appear before any kind of judicial tribunal, you trust that the person who is handling your case has been appointed as the best-quality applicant when the vacancy arose."[163]

97. We believe that merit should continue to remain the sole criterion for appointments. We have a highly acclaimed judiciary in terms of quality. This high quality must not be undermined, whether in fact or perception. Where one individual is the most meritorious, taking into account all the different aspects of merit as defined by the JAC,[164] that candidate must be appointed. We have no doubt that candidates from under-represented groups are equally capable of being appointed on this basis.

SECTION 159 OF THE EQUALITY ACT 2010

98. Section 159 of the Equality Act 2010 provides that where a person is choosing between two equally qualified individuals for a recruitment or promotion exercise, the individual with a protected characteristic may be chosen over the individual without that characteristic (in cases where participation in the relevant activity by those with the protected characteristic is disproportionately low). This has become known as the "tipping" or "tie-break" provision. Under s 159(6), the positive action provisions in s 159 cannot be used to do anything that is prohibited by or under another enactment. Section 63(2) of the CRA states that, for judicial appointments, selection must be solely on merit. This effectively prohibits the use of non-merit factors in the making of selections under the CRA, and so s159 does not apply.

99. Both the Advisory Panel and the Government's consultation paper recommend that where two candidates are essentially indistinguishable, this tipping provision should be applied.[165] None of our witnesses disagreed with this proposal outright, though there was significant disagreement as to its potential impact. Baroness Neuberger, Lord Phillips, Lord Judge CJ and Christopher Stephens were amongst those who doubted whether two candidates are ever truly equal.[166] However, the Lord Chancellor and a number of the senior judiciary[167] considered that the subjective nature of appointments meant that it was not "as rare as people think that you have candidates who are equally qualified"[168] and therefore the use of s 159 could, in some cases, prove critical. At the lower levels of the judiciary, the JAC may be seeking to fill 100 vacancies or more in the same selection exercise.[169] It seems likely that in large assessment exercises it will not always be possible to rank every candidate in strict order of merit and that a number of candidates may be considered to be of equal merit.

100. Until the applicability of s 159 is explicitly permitted, it will not be possible to determine how often it could be used. Following a change in the law, it would be necessary for the JAC to maintain proper records of its use and to make available anonymised data showing how often, if at all, it had been applied in individual cases. The publication of such data should be in a form designed to ensure that no individual appointment became known to have been made on the basis of the provision as this could undermine the position of the individual concerned.

101. We agree that s 159 of the Equality Act 2010 should be used as part of the judicial appointments process. Though we cannot be certain how often it would be used, its application could be the deciding factor in the appointment of a number of candidates from under-represented groups. Moreover, permitting its use would send out a strong signal that diversity in judicial appointments is important, without undermining the merit principle.

QUOTAS, TARGETS AND BENCHMARKING

102. "Quotas" refers to the requirement to appoint individuals to the judiciary according to certain proportions: for example that 50% of all new appointments should be female. We received no evidence calling for the use of mandatory quotas in the appointments process.[170] Quotas were described as "insulting"[171] and "patronising"[172]; they would send out the message that candidates had only been appointed because of their sex, race etc.;[173] they would dilute the quality of the judiciary[174] and undermine the merit principle.[175] We see no case for the introduction of quotas.

103. Our witnesses were, however, divided on the use of targets. By this we mean the setting of goals towards which the JAC would aim (for example that 30% of the full-time judiciary should be female[176] by 2020). Unlike quotas, targets would not be mandatory: appointments would continue to be made on merit. The main argument for targets is that they would focus the mind:[177] "there would be much more of an imperative to work harder at widening that pool and making sure that you are going into the non-traditional places and seeking out the best candidates."[178] In addition, it was argued that targets would "be an indication of clear and determined political commitment to a more diverse judiciary"[179] and would assist in the creation of "a critical mass" of women judges, encouraging other women to apply and ensuring that women judges were taken seriously as individuals.[180] Those in favour of targets included those representing under-represented groups, notably the Association of Women Solicitors[181] and the UK Association of Women Judges[182] (who were both against the use of quotas).

104. The arguments raised against the use of targets were largely similar to those against the use of quotas.[183] Lord Judge CJ was concerned that, "however you create the formula, you [could] end up with what in truth is a quota system."[184] Some witnesses also argued that although change would not happen overnight, steps were being taken which would "start moving the logjam".[185] Targets were therefore viewed as both unnecessary and potentially damaging to the merit principle.

105. We note that the Advisory Panel on Judicial Diversity was against the use of targets[186] and that the Government are also currently opposed to their use. However, the Lord Chancellor accepted that they should be tried next if the Government's proposals for reform do not work well.[187] We share the widespread impatience to see early progress made on improving diversity. We agree that it would not be appropriate to set targets at the present time. However, we believe that this should be kept under review. If there has been no significant increase in the numbers of women and BAME judicial appointments in five years' time, the Government should consider setting non-mandatory targets for the JAC to follow.

106. Lord McNally stressed that:

"something better than targets is good baseline figures that would give us a proper idea of the direction of travel. Targets are meaningless if the relevant statistics are not sound, valid and up to date. One of the things that we are trying to do at all levels of appointment is to make sure that we have the baseline statistics that allow us to make judgments about whether the policy declarations on greater diversity are matched by the facts."

107. There is clearly a need for better and more meaningful statistics to be published, against which progress can be measured. We received evidence that the data which is currently available is inadequate, for example failing to distinguish between salaried and fee-paid appointments.[188] The failure to make this data available obscures failures to improve judicial diversity, whilst a lack of clear evidence of improvements having been made can discourage further applications from under-represented groups. The Advisory Panel called for better capturing and handling of judicial data to set a baseline against which future progress can be measured.[189] The JAC described this as benchmarking:

"looking at the proportion of people who apply to us as compared with those who would be eligible. Among those who apply, we look at progression rates to see, for example, whether women are progressing through our selection processes at the same rate as men, on the assumption that there will be a similar proportion of talented women among those who apply, as compared with men."[190]

108. Benchmarking will not succeed unless the proportions of under-represented groups working in the legal professions are published in an equally accessible format. This is the responsibility of the Bar Council, the Law Society and the Chartered Institute of Legal Executives (ILEX). Plenty of statistics are currently available, but not always in a form which assists in determining how under-represented groups perform in the appointments process. The Government, the JAC and the legal professions must work together to ensure that data is collated and made openly available in such a way as to make the progression of under-represented groups through the appointments process as transparent as possible.

Leadership and the promotion of diversity

109. As noted above,[191] the JAC is required by s 64 of the CRA to encourage diversity in the range of persons available for selection for appointment. Whilst it is undoubtedly important for the JAC to seek more applications for under-represented groups, this duty should not be the preserve of the JAC alone. Improvements in diversity will not come about without decisive and persistent leadership:

"a real political commitment to widening the judicial recruitment pool and seeking out talented candidates from non-traditional backgrounds can lead to greater diversity in a relatively short space of time, without any adverse impact on the quality of the judiciary. Conversely, without such a commitment, meaningful change rarely occurs."[192]

110. Leadership must come from both the Lord Chancellor who is responsible to Parliament for the appointments process and the Lord Chief Justice as head of the judiciary.[193] Both individuals, along with the JAC, can make it clear to all those involved in the appointments process, whether as applicants or selectors, that improving diversity is taken seriously as an aim within government and the judiciary. The message that all those who meet the merit criterion are capable of becoming judges is one which should not be left to the JAC alone to make. Although a statutory duty is not necessary for this leadership to be given, it will help to ensure that all Lord Chancellors and Lord Chief Justices properly recognise and fulfil their roles in this regard.

111. The duty contained in s 64 of the CRA should be extended to the Lord Chancellor and the Lord Chief Justice.

Flexible working

112. One significant reason why certain professions have become much more diverse in recent years, particularly with respect to increased numbers of women,[194] is the increased use of flexible working.[195] This may constitute part-time work (reduced hours or days), the ability to work non-standard hours or the right to adjust working patterns from time to time as needed. Flexible working can benefit everyone, but is especially valuable to those with caring responsibilities who are disproportionately female.

113. Part-time fee-paid judicial work is the usual first step towards obtaining a salaried full-time position;[196] however, this tends to entail working from time to time as required, rather than working to a set number of reduced hours. At present, part-time salaried working is possible at all levels of the judiciary up to, but not including, the High Court. Our witnesses did not consider that, in practice, opportunities for flexible working were always widely available.[197] The Chairman of the JAC reflected the views of many witnesses when he told us that: "This is the first profession that I have touched in my working life where there is not easy access to flexible working arrangements for senior positions. Having salaried part-time working in the High Court would be transformational."[198]

114. The widespread support for the principle of flexible working has been met with some resistance within the judiciary.[199] Lord McNally informed us that: "I hear judges say, 'Ah, but you can't have flexible judges, as that would totally disrupt the processes of the court.'"[200] Lord Woolf and Lord Carswell, former Law Lords, both cautioned that part-time working would be difficult to accommodate within the senior judiciary: if some judges are unable to undertake prolonged trials that causes difficulties for the rest.[201] We were, however, reassured by the Lord Chief Justice that:

"we should be able to organise the sitting patterns for female High Court judges or male High Court judges who have caring responsibilities, so that during, for example, half term they can be at home ... I think those sorts of very small changes, if we can broadcast it sufficiently to the women of quality, will help."[202]

115. The Senior Courts Act 1981 currently places limits on the number of individuals able to serve as High Court and Court of Appeal judges at any given time (whether those individuals work full- or part-time).[203] This provision in effect prevents the making of part-time appointments since to do so would result in a reduced number of full-time equivalent judges overall. The Government's consultation paper asked whether the Act should be amended in order to enable some appointments to be made on a part-time basis.[204] This proposal is reflected in the recommendation of the Advisory Panel that "It should be assumed that all posts are capable of being delivered through some form of flexible working arrangement, with exceptions needing to be justified."[205]

116. A related recommendation made by some of our witnesses was that the taking of career breaks, especially for those with young children, should be better accommodated both within the legal professions and the judiciary.[206] There are no structural barriers to prevent this, nor were any of our witnesses opposed to it in principle, but it requires a degree of commitment and understanding on the part of all those involved in both appointments and deployment.

117. We agree that the Senior Courts Act 1981 should be amended to remove the limits on the number of individuals able to serve as High Court and Court of Appeal judges at any given time, to enable some appointments to be made on a part-time basis. We regard this as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking. This applies to both the judiciary and the legal professions. It is the responsibility of all those with a role in deployment and the appointments process to demonstrate that commitment.

Increasing the pool of potential candidates

118. As we noted earlier, judges have traditionally come from the senior Bar which is itself lacking in diversity. The solicitors' profession is more diverse at all levels,[207] and the Chartered Institute of Legal Executives (ILEX) even more so.[208] Employed lawyers, are also much more diverse.[209] Whilst the Bar must take its own steps towards increasing diversity amongst its members,[210] if more judicial appointments were to be made from amongst these other groups, it is highly likely that the judiciary would become more diverse as a result. Lord Falconer stressed that:

"We have been incredibly timid about going to government lawyers, prosecution lawyers, in-house counsel, academics, people who work in law centres—there is a whole group of places you could reach. We tell these people that they can apply, but you are never going to convince people that they will be appointed unless you start making appointments from this diverse group. By and large, most people would assume that they would not get through the process, and they are right."[211]

119. The JAC, the Lord Chancellor and the Lord Chief Justice must encourage applications from lawyers other than barristers. There should be no sense that not having been a member of the Bar makes an individual unworthy of appointment or less meritorious. There are, however, specific barriers to appointment which exist within the solicitors' profession (legal executives face similar barriers[212]) and the Government Legal Service which we consider need to be properly addressed.

SOLICITORS

120. In their written submission, the JAC informed us that:

"There has been little difference in the proportion of solicitors applying for most roles over the past ten years—there have been small increases but no dramatic leap forward. For some judicial roles—for example Circuit judge—the number of solicitors applying and being appointed has decreased."[213]

121. There are a number of reasons why solicitors are failing to be appointed as judges in large numbers. Reasons include that for a highly paid City solicitor to become a fee-paid judge would most likely entail a significant drop in salary, that it would require time away from practice at the peak of an individual's career and that some solicitors will not necessarily have considered a judicial career as a major ambition.[214] Whilst these factors no doubt apply in many cases, they will not be universal. Moreover, these reasons, the first in particular, apply equally to senior barristers who still become judges in proportionately much greater numbers. There are clearly other influential factors involved.

122. Some of these factors are outside the control of solicitors. The Law Society drew our attention to the difficulty of ensuring that part-time judicial commitments were kept, given the uncertainties of practice.[215] Lord Collins, the only solicitor to date to have reached the Supreme Court, stressed that the prospect of a Circuit Bench appointment was unattractive to many solicitors and that the best talent amongst solicitors should be given the opportunity to work as deputy High Court judges with a view to appointment as High Court judges.[216] Lord Justice Toulson informed us that the selection process could lead to candidates being informed that they were to be appointed in the next two years, but with no certainty that they would be—this "produces a kind of planning blight" for firms.[217] These impediments should be removed.

123. However, the major reason for the low numbers of solicitor candidates is the attitude of the law firms themselves. To become a part-time fee-paid recorder, for example, requires a commitment of just four weeks per year; but this is often not accommodated within solicitors firms. Reflecting the views of a large number of witnesses, Baroness Prashar told us that: "It was very difficult to get solicitors to apply, because if they applied they were seen by their firms to be disloyal ... That remained a problem, and still remains a problem: changing attitudes."[218] Baroness Neuberger, Baroness Prashar and members of the judiciary described their efforts to engage with the Magic Circle firms without success.[219] In the words of Lady Justice Hallett:

"The trouble is that a number of my friends who are top solicitors will talk the talk but not all of them will walk the walk. They will say the right things. The Judicial Appointments Commission will hold a roadshow and everyone will come out with warm words ... saying that we should encourage our solicitors. However, I am afraid that not all of them do that when they get back to their offices."[220]

124. We heard from the President of the Law Society who stressed the Law Society's encouragement of, and support for, solicitors who wished to apply.[221] However, when questioned, he was uncertain as to whether the Law Society even had a published policy on judicial appointments[222] (it does not[223]) and he stressed that "The Law Society cannot, as it were, instruct people".[224]

125. We are not convinced that either the Law Society or the partners of most of the large firms are sufficiently committed to the encouragement of solicitors applying to become judges. The promotion of judicial diversity will be greatly enhanced if solicitors are able to take time off to hold part-time fee-paid judicial posts whilst continuing to practise. We consider it essential in the public interest that this change be made. This will require a significant cultural change within firms and the solicitors' profession as a whole.

GOVERNMENT LAWYERS AND PROSECUTORS

126. The Government Legal Service (GLS) and Crown Prosecution Service (CPS) contain a proportionately higher number of those from under-represented groups than much of the rest of the legal profession.[225] The appointment of more government lawyers and prosecutors to the bench would be one practical way of improving the diversity of the judiciary.[226]

127. Government lawyers are currently eligible to sit as deputy district judges in magistrates' courts, as civil recorders, and as fee-paid tribunal judges, except in matters which involve their own department.[227] This formal ability to apply to be a fee-paid lawyer is limited by the fact that government lawyers are usually most experienced and skilled in the area(s) of law with which their own department deals. CPS lawyers are eligible for recorder or deputy district judge posts but "the opportunities to sit on criminal cases will be limited, as most prosecutions are brought by the CPS".[228] CPS lawyers therefore find themselves excluded from competing in appointment exercises due to lack of suitable work. If someone is unable to obtain experience as a fee-paid judge, they are much less likely to be appointed to a full-time salaried position.[229]

128. As well as the disadvantages faced by government lawyers and prosecutors in seeking judicial appointment, there is a wider problem for society if talented individuals are discouraged from applying to work in these sectors because of a concern that they would not then be able to apply to join the bench at a later stage in their careers. It is in the public interest that the GLS and CPS continue to recruit highly capable lawyers and that such lawyers do not work solely in the private sector.

129. Whilst it remains necessary to avoid conflicts of interest, structural impediments to the appointment of government lawyers and prosecutors should be removed. For example, there is an argument in relation to these candidates in favour of relaxing the requirement to have acted as a fee-paid judge and for the JAC to find alternative means of testing their abilities. The provision of mentoring and shadowing opportunities for prospective candidates would be of particular value here. The GLS and CPS must take all possible steps to enable prospective candidates to obtain judicial experience in areas of law where no conflict of interest arises. These solutions may require fuller assessments, but are worthy of serious consideration.

130. In addition, we note the issue raised by Jack Straw MP who told us that:

"There is ... an issue about how they [prosecution lawyers] can be part-time recorders, and there was quite a debate, not least between myself and the senior judiciary, about the difference between somebody who is at the referral Bar and does nothing but prosecution work, who can be a recorder in that area and sit on criminal cases, and someone who is a senior prosecutor, who is a High Court advocate, who does nothing but prosecution work and at the moment cannot. I never got a satisfactory answer to that."[230]

131. Jonathan Sumption QC,[231] while a member of the JAC, argued that "the blanket exclusion of CPS prosecutors from sitting as criminal Recorders is too absolute and is, frankly, totally unjustifiable."[232] He suggested that CPS lawyers could sit as part-time judges away from the geographic area in which they work as prosecutors. This idea should be examined.

132. Those who work for the Government Legal Service and Crown Prosecution Service must not be prevented from becoming judges because of their status as government lawyers. The Government and the JAC must act to overcome any undue impediments to their appointment as both fee-paid and full-time judges. This is important both from the perspective of ensuring equal access to judicial appointment and because it would promote the diversity of the judiciary. Furthermore, it is in the public interest that high quality candidates are not discouraged from applying to join the GLS or CPS because of a potential lack of career progression to the judiciary.

THE TRIBUNALS JUDICIARY

133. We examine in detail in Chapter 7 the need to remove barriers to transfers of judges from one post to another, in particular from the First-tier Tribunal to the courts. This is part of a wider consideration of the career structure within the judiciary and broad questions of eligibility for appointment to certain posts. However, noting in particular that the tribunals judiciary is significantly more diverse at present than the courts judiciary,[233] we draw attention here to the benefits which a more flexible career structure would have upon the diversity of the judiciary as a whole.

Conclusion

134. The recommendations in this Chapter are based on our understanding of merit as a broad concept relating to the many different skills and experiences which different individuals can bring to bear on the work of the judiciary. We highlight here those changes which would have a practical effect upon the diversity of the judiciary: application of s 159 of the Equality Act 2010; extension of the duty contained in s 64 of the CRA to the Lord Chancellor and the Lord Chief Justice; increased use of flexible working within the judiciary; making it easier for solicitors to apply; and greater opportunities for government lawyers to apply.

135. These recommendations, along with those of the Advisory Panel, constitute necessary first steps towards improving the diversity of the judiciary. We hope that they will prove sufficient, but goodwill and leadership will be required to bring about significant change.

115 The eight protected characteristics listed under the Equality Act 2010 are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Back

116 Table 1 provides some relevant statistics to demonstrate the rate of change within the judiciary as a whole. Since its creation, the JAC has made almost 2,500 selections. Over 35% of these were women and at least 9% were BAME candidates (http://jac.judiciary.gov.uk/about-jac/167.htm). Back

117 Source: Appointments and Diversity: A Judiciary for the 21st Century, Ministry of Justice, Consultation Paper CP19/2011, November 2011, p 7. Appendix 4 provides more details of judges in post broken down by gender, ethnicity and profession. Back

118 See further below, paras 84-88. Back

119 Q 26 (Professor Cheryl Thomas). Back

120 See Box 2 below. Back

121 For detailed consideration of the evidence for the impact of diversity on judicial decision-making, see JAC, Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies and Practices, Cheryl Thomas, November 2005, pp 57-60; see also Hunter, McGlynn and Rackley, Feminist Judgments: From Theory to Practice, 2010, Hart Publishing. Back

122 Q 376. Back

124 Q 216 (Baroness Hale), Q 251 (Lord Neuberger MR). Back

125 Q 23 (Professor Alan Paterson), Q 26 (Professor Cheryl Thomas). Back

126 Q 205 (JUSTICE). Back

127 Q 205 (JUSTICE), written evidence by Lady Justice Arden, para 13. Back