Judicial Appointments: follow-up Contents

Chapter 4: Diversity

Diversity in the judiciary

117.In our 2012 report we recognised that “diverse courts are better equipped to carry out the role of adjudicating than courts that are not diverse and that the public will have greater trust and confidence in a more diverse judiciary.”180 Five years later Robin Allen QC, chairman of the Equality and Diversity and Social Mobility Committee at the Bar Council of England and Wales, told us he was “appalled at the lack of progress we have made towards a really diverse judiciary.”181 There was “a potential crisis of legitimacy of the judiciary unless this is addressed. We cannot go forward in a diverse Britain without a diverse judiciary. We really cannot. It is noticed. It is significant. It is increasingly important. We really have to address it.”182

118.Indeed, a JUSTICE working party on judicial diversity recently concluded “a senior judiciary that so markedly does not reflect the ethnic, gender or social composition of the nation is a serious constitutional issue. Much more must be done to strengthen diversity for reasons of legitimacy, quality and fairness.”183

Ethnicity

119.Figures published by the judiciary show that between 1 April 2014 and 1 April 2017 there was almost no change in the percentage of BAME court judges, tribunal judges and non-legal members of tribunals.184 Figures from the 2016 Judicial Attitudes Survey suggest that 39% of BAME judges who were not due to reach compulsory retirement age in the next five years were nonetheless considering leaving the judiciary in the next five years. This compared to 35% of white judges.185

Figure 3: BAME representation among court and tribunal judges and non-legal members 2014 to 2017

clustered bar chart showing percentage of BAME representation among court and tribunal judges and non-legal members from 2014-2017

Source: Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Statistics 2017, July 2017

120.Figure 4 sets out the percentage of court judges that identify as BAME as of 1 April 2017. At the higher ranks of the judiciary there were very few BAME judges (and in some cases, none at all). Robin Allen QC told us:

“we have no or very few obvious role models of successful BAME judges. There are none in the Court of Appeal, none in the Supreme Court and a very limited number now—depending on how you assess it, about two—in the High Court. There are some chilling factors at work here.”186

121.Since our evidence session, Mr Justice Singh has become the first BAME Lord Justice of Appeal.187 Figures published in July 2017 showed that there were four BAME High Court judges.188

Figure 4: BAME representation among court judges, 1 April 2017

bar chart showing BAME representation among different types of court judges, 1 April 2017

Source: Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Statistics 2017, July 2017

Gender

122.In the period from 1 April 2014 to 1 April 2017 the percentage of female judges increased from 18% to 24% in the Court of Appeal; from 18% to 22% in the High Court and from 24% to 28% in the courts as a whole.189 However, as Figure 5 illustrates, progress from 2014 to 2017 has been limited.

Figure 5: Female representation among court and tribunal judges and non-legal members, 1 April 2014 to 1 April 2017

clustered bar chart showing percentage of female representation among court and tribunal judges and non-legal members from 2014-2017

Source: Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Statistics 2017, July 2017

123.Figure 6 shows the representation of women across the judiciary and, in particular, their under-representation at the higher ranks of the judiciary.

Figure 6: Female representation at each court judge role, 1 April 2017

bar chart showing female representation among different types of court judges, 1 April 2017

Source: Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Statistics 2017, July 2017

124.Since these figures were released, the former Deputy President of the Supreme Court, Baroness Hale of Richmond, was appointed President of the Supreme Court190 and Lady Justice Black was appointed the second woman to sit on the Supreme Court.191

125.Despite these recent appointments, women remain underrepresented in judicial positions, particularly at higher levels. Robin Allen QC said “there is an underlying really profound problem about the difficulties that women face having a career in the law generally.”192 He told us that, as chair of the Bar Council Equality and Diversity and Social Mobility Committee, he commissioned a “momentum measures report to see when, within the Bar, we could expect an equal profession of men and women. I regret to say, on current trends, the answer is never.”193 He added:

“At the moment, at pupillage, starting in practice, we have probably more than 50% of women getting through pupillage and into chambers. Starting out in practice women do really well at the moment and we have probably got equality. However, somewhere between late 30s and early 40s women leave the Bar or go into part-time positions. Their careers are stalling around about then. It is directly associated—and we know this, because we analyse people who change their status at the Bar—with caring responsibilities.”194

126.Millicent Grant said that women might be put off a judicial career by the underrepresentation of women in the judiciary and stated that “They may feel that they are not welcome. They may not have the flexibility in the profession that they need for their life circumstances.”195

Social mobility

127.When discussing judicial diversity with the then Lord Chancellor, Liz Truss said she “would add to your list social mobility, because we also see very few state school-educated judges get through to a senior level.”196 She explained:

“One of the things I am working on with the Law Society and organisations such as the City of London Law Society is a working group that looks at social mobility and the solicitors’ profession. I am also talking about this with the Bar Council because we need to look systematically at every point in the process and what is potentially holding people back from progressing.”197

128.Research published by the Sutton Trust in February 2016 found that nearly three quarters (74%) of the top judiciary were educated at independent schools and the same proportion (74%) studied at Oxford or Cambridge universities. The Sutton Trust concluded that “barristers and solicitors disproportionately herald from the same schools and universities.”198

Improving diversity

129.A number of legal measures and other initiatives have been introduced to improve diversity in the judiciary. We consider them below.

Judicial Diversity Forum and Judicial Diversity Committee

130.In 2010 the Judicial Diversity Taskforce was established to oversee implementation of the recommendations in the report of the Advisory Panel on Judicial Diversity.199 In June 2015 the Taskforce published its final annual progress report, outlining the progress it had made in completing the advisory panel’s recommendations. It concluded:

“significant progress has been made over the last five years towards increasing judicial diversity. This progress has been driven by a fundamental shift in our approach to improving diversity, and supported by new ways of working collaboratively across the judiciary, government, the legal professions and the Judicial Appointments Commission. We have refined the selection and recommendation process for judicial appointments. We are continuing to improve data collection and management, and to develop systems to monitor and evaluate progress. We are also continuing our work to encourage new entrants to the judiciary, develop mentoring and appraisal schemes, modernise judicial culture and update terms and conditions of appointment.”200

The oversight function of the Taskforce was subsequently transferred to the Judicial Diversity Forum, which comprises most of the parties who were in the Taskforce.201

131.The JAC chairs the Diversity Forum, which brings together organisations to identify ways of improving judicial diversity.202 Lord Kakkar told us that the Diversity Forum “represents an important opportunity for the different bodies, many of whom have a much more influential locus in driving the opportunity for increasing the diversity of the pool of potential applicants to come together.”203

132.The Judicial Diversity Committee was set up in 2013 to support the Lord Chief Justice by bringing together all the different aspects of diversity work in the judiciary.204 The committee consists of representatives from all jurisdictions in the courts and tribunals who are responsible for and committed to increasing diversity and who are active in diversity work.205

Statutory duty

133.In our 2012 report we recommended that the duty in section 64 of the Constitutional Reform Act 2005 to encourage diversity in the range of persons available for selection for appointments should be extended to the Lord Chancellor and the Lord Chief Justice.206 This was brought about by the Crime and Courts Act 2013: the Lord Chancellor and Lord Chief Justice are now required to take such steps as they consider appropriate for the purpose of encouraging judicial diversity.207

Selection panels

134.In our 2012 report we said it was “important that selection panels include a mixture of judicial and lay representation” and that selection panels “should themselves be gender, and wherever possible, ethnically diverse.”208 We recommended that “lay persons must sit on every selection panel so that the judiciary are not solely responsible for the appointments made.”209

135.We are pleased that the Crime and Courts Act 2013 now requires that there must be an odd number of members for selection panels for senior judicial roles and those making nominations to the panels must have regard to the desirability of more diversity among panel members. There must be a lay chair for the most senior appointments—President of the Supreme Court and Lord Chief Justice—and a better balance of lay and judicial influence in these decisions.210

136.Lord Kakkar told us that the JAC now had “65 lay panel members, of whom 62% are female; 6% are BAME; 3% are disabled; and we also have two Welsh-speaking panellists … We have 108 judges in the pool, and, of them, 35% are female, 8% are BAME and 42% are solicitors.”211

Equal merit provision

137.In our 2012 report we recommended that the “tipping provision” in section 159 of the Equality Act 2010 should be used as part of the appointments process.212 We are pleased that the Crime and Courts Act 2013 clarifies that where two persons are of equal merit, a candidate may be selected on the basis of improving diversity.213

138.Lord Justice Burnett explained:

“Both Lord Kakkar and I have sat on selection committees that have applied [the equal merit provision] … its application does not cause us very much difficulty, because once one has come to the conclusion that two or three candidates are in truth of equal merit, in the sense that there is no easy way to choose between them—each of them would be as well able to do the job as the other—then we are told the ethnicity and gender of the candidates, and if one of the candidates is from the underrepresented group that is the recommendation we make.”214

139.He added that the equal merit provision “has been applied now, I think, 21 times. It has been applied in a large number of competitions, even though the numbers of judges who have been appointed using the provision remain relatively small.”215 Since our evidence session with the JAC, new figures show that between 1 April 2016 and 31 March 2017, 12 recommendations were made following application of the equal merit provision; 10 of these were women and two were BAME candidates. There were also 12 occasions when the policy was considered but not applied, due to equal diversity characteristics of the candidates.216

Diversity training and outreach

140.In our 2012 report we encouraged the use of diversity training, recommending that “all those involved in the appointments process must be required to undertake diversity training.”217 Lord Kakkar told us that efforts were being taken to ensure all “lay panel members receive diversity training”218 and that judges had “their own particular diversity training as part of judicial appointment.”219

141.We heard about the outreach work undertaken by members of the judiciary. Lord Neuberger said:

“we have a duty to go out and encourage people to apply, and we have been doing so. For instance, in relation to the recent competition, Lady Hale and I agreed that she would take steps to go out and talk to likely possible applicants, and to make herself available to be talked to.”220

142.Liz Truss MP said that she “was very pleased recently that, on the launch of the Supreme Court competition, Lord Neuberger came out and talked in public.”221

Flexible working and deployment

143.Another recommendation we made in 2012 to assist judicial diversity was “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.”222

144.Robert Bourns said: “There may be a need for the courts to be managed in a way that feels more contemporary in terms of the listing and when people sit.”223 Robin Allen QC said:

“unquestionably, the pressure within the system makes it very difficult to manage caring responsibilities at the same time as keeping on with full-time practice. That is causing people to change the way their practice runs, partly to leave the Bar and to go into part-time practice and so on. They are not seeing the next step of going into the judiciary as a real option. We are trying to encourage better opportunities for part-time working, because we think that will help, and more understanding from the judicial system that people have lives outside court and accommodating that at the same time.”224

145.We are pleased to note that, since our 2012 report, the Crime and Courts Act 2013 has made flexible working available in the High Court and above, and that opportunities to work flexibly are now clearly highlighted in each JAC selection process.225 Lord Neuberger told us: “Legislation that was initiated in this House, with our support, now enables us to have part-time members of the court. That is made clear in the material that we put out in relation to the [Supreme Court] competition. Indeed, we issued some guidance on part-time working in the job information pack.”226

146.In our 2012 report we said that “there should be a greater emphasis within the judiciary on judicial careers, making it easier to move between different courts and tribunals and to seek promotions.”227 We are therefore pleased that the Crime and Courts Act 2013 introduced flexible deployment so judges can more easily move between working in the courts and tribunals.228 As we noted in paragraph 32, the forthcoming Courts Bill, mentioned in the 2017 Queen’s Speech, is due to contain a provision to enable “judges to be deployed more flexibly to improve the opportunities for career progression.”229

Conclusion

147.Robin Allen QC told us that diversity “will not be remedied without real positive action by all the players involved” and that “we cannot go forward in a diverse Britain without a diverse judiciary.”230 While there has been some improvement in the diversity of the judiciary since our last report, it has been limited.

148.We welcome the changes made to address diversity since our 2012 report. These should make high-level judicial posts a viable option for a wider pool of potential applicants and encourage diversity within the wider judiciary.

149.We applaud the increased emphasis on diversity training for the judiciary and professional development opportunities for potential applicants. We encourage greater emphasis on pre-application education and mentoring for applicants, especially those who belong to groups that are underrepresented in the judiciary. We also welcome the efforts being made by professional bodies to encourage applicants from a wider range of professional backgrounds for judicial roles.

150.We recognise that it may take more time for recent legal changes and initiatives by the sector to deliver greater diversity. We therefore encourage the Lord Chancellor and Lord Chief Justice, the Judicial Appointments Commission and the legal professions to monitor progress closely and to continue to look for new ways to improve and encourage diversity on the bench.


180 Constitution Committee, Judicial Appointments, para 17

181 Q 34 (Robin Allen QC)

182 Ibid.

184 Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Statistics 2017, July 2017, p 7: https://www.judiciary.gov.uk/wp-content/uploads/2017/07/judicial-diversity-statistics-2017-1.pdf [accessed 26 October 2017]

185 UCL Judicial Institute, 2016 UK Judicial Attitude Survey, p 78

186 Q 34 (Robin Allen QC)

187 Law Society, ‘Law Society hails first woman to preside over Supreme Court’, 21 July 2017: https://www.lawsociety.org.uk/news/press-releases/law-society-hails-first-woman-to-preside-over-supreme-court/ [accessed 26 October 2017]

188 Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Statistics 2017, July 2017, p 5

189 Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Statistics 2017

190 The Supreme Court, ‘Lady Hale appointed next President of Supreme Court, alongside three new Justices’, July 2017: https://www.supremecourt.uk/news/lady-hale-appointed-next-president-of-supreme-court-alongside-three-new-justices.html [accessed 26 October 2017]

191 Ibid.

192 Q 33 (Robin Allen QC)

193 Ibid.

194 Ibid.

195 Q 33 (Millicent Grant)

196 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 9 (Elizabeth Truss MP)

197 Ibid.

198 The Sutton Trust, Leading People 2016: The educational backgrounds of the UK professional elite, February 2016, p 2: http://www.suttontrust.com/wp-content/uploads/2016/02/Leading-People_Feb16.pdf [accessed 26 October 2017]

199 Judicial Diversity Taskforce, Improving Judicial Diversity: Progress towards delivery of the ‘Report of the Advisory Panel on Judicial Diversity 2010’, June 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438207/judicial-diversity-taskforce-annual-report-2014.pdf [accessed 26 October 2017]

200 Ibid., p 5

201 Ibid.

202 Judicial Appointments Commission, ‘Judicial Diversity Forum’: https://jac.judiciary.gov.uk/judicial-diversity-forum [accessed 26 October 2017]

203 Q 7 (Lord Kakkar)

204 Lord Chief Justice of England and Wales and Senior President of Tribunals, Judicial Diversity Committee of the Judges’ Council, April 2017: https://www.judiciary.gov.uk/wp-content/uploads/2017/04/judicial-diversity-committee-progress-report-16-17-1.pdf [accessed 26 October 2017]

205 Ibid.

206 Constitution Committee, Judicial Appointments, para 111

207 Judicial Appointments Commission, ‘Changes under the Crime and Courts Act 2013 start to take effect’, October 2013: https://jac.judiciary.gov.uk/news/changes-under-crime-and-courts-act-2013-start-take-effect [accessed 26 October 2017]

208 Constitution Committee, Judicial Appointments, para 67

209 Ibid.

210 Judicial Appointments Commission, ‘Changes under the Crime and Courts Act 2013 start to take effect’

211 Q 9 (Lord Kakkar)

212 Constitution Committee, Judicial Appointments, para 101

213 Judicial Appointments Commission, ‘Changes under the Crime and Courts Act 2013 start to take effect’

214 Q 10 (Lord Justice Burnett)

215 Ibid.

216 Judicial Appointments Commission, Judicial Selection and Recommendations for Appointment: Official Statistics, 1 April 2016 to 31 March 2017, p 6

217 Constitution Committee, Judicial Appointments, para 88

218 Q 9 (Lord Kakkar)

219 Q 10 (Lord Kakkar)

220 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 9 (Lord Neuberger of Abbotsbury)

221 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 3 (Elizabeth Truss MP)

222 Constitution Committee, Judicial Appointments, para 117

223 Q 33 (Robert Bourns)

224 Q 33 (Robin Allen QC)

225 Judicial Appointments Commission, ‘Changes under the Crime and Courts Act 2013 start to take effect’

226 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 9 (Lord Neuberger of Abbotsbury)

227 Constitution Committee, Judicial Appointments, para 180

228 Judicial Appointments Commission, ‘Changes under the Crime and Courts Act 2013 start to take effect’

229 Prime Minister’s Office, ‘The Queen’s speech and associated background briefing, on the occasion of the opening of Parliament on 21 June 2017’, p 40

230 Q 34 (Robin Allen QC)




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