Judicial Diversity: A Gradual Process

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– Michael Keightley (LLB Law, Newcastle University) m.keightley@hotmail.co.uk

First of all, it makes sense to start with some important statistics regarding judicial diversity in the last twelve years. Starting from April 2001 the percentage of women in the judiciary has increased from 14.1% to 24.3% by April 2013, with those of an ethnic minority in the judiciary increased from 1.9% in April 2001 to 4.8% in April 2013. This is a gradual increase over the past twelve years, but that is only a general average. Baroness Hale raises some more specific, and less positive, statistics: “only 26.6% of the upper tribunal judiciary are woman, though 11% are BME” and no BME or women are sitting as Court of Appeal judges, Heads of Division and there only one woman in the Supreme Court, which is Baroness Hale herself.

All of which begs the question: why is there such a lack of diversity in the judiciary? And does diversity even matter?

The lack of diversity is, obviously, a poor representation of the general population. Considering the judiciary are empowered to adjudicate upon and enforce constitutional principles, then they should both represent and uphold constitutional principles of diversity and equality. The duality between the representation of values and the upholding of values is crucial to the question of whether or not diversity in the judiciary really matters.

It is mere common sense that the judiciary should represent the constitutional principles they aim to enforce, or face the label of hypocrisy, with principles of equality and diversity being at the forefront when you consider the secular and diverse nature of the United Kingdom. However, what is more important than the face-value representation of equality and diversity is the enforcement of equality and diversity. For example, if there was a candidate for the position of a judge then merit would be the obvious primary influence upon the choice over gender or ethnicity. This is reflected in s.63 of the Constitutional Reform Act 2005, which states that selection must be based on merit and ‘good character’. However, considering the current lack of diversity in the judiciary, if two candidates were of equally ‘good character’ and one was a female of an ethnic minority and the other was a white male, it would be the constitutional duty of the selecting body to enforce the principles of diversity and give priority to the first candidate to promote judicial diversity. Sadly, the lines are not that clear-cut and the situation is simple in theory alone. But generally it is easy to conclude that even though both the representation and enforcement of equality and diversity are important, they are not of equal importance.

Although, this view is quite basic as it fails to consider further implications of a lack of judicial diversity and merely assumes that judicial diversity has no implications beyond that of the face-value representation in the courts. Keith Vaz, MP, argues the important point that “a more diverse judiciary would bring different perspectives to bear on the development of the law and to the concept of justice itself.” It would be nonsensical to ignore the fact that somebody’s social background can influence the development of the law; and that a diverse set of backgrounds is likely influence the development of the law in a more positive manner. It is important to recognise that generations of females and people from ethnic minorities may have “broken the glass ceiling, but to make this achievement worthwhile others have to follow and do better.” Both democracy and justice are perpetually evolving concepts, yet they will fail to develop at a satisfying rate if the judiciary that interprets and enforces the law does not do that to a standard that runs parallel to the standards the public expects. Thereby leading only to a serious risk of undermining public confidence in the courts if the judiciary is not diverse.

The problem itself needs to be traced back further than just to the selection process of the judiciary. There is a much more representative amount of both women and ethnic minorities graduating with degrees, with women often outweighing men in most universities. Not to mention, for law students, there are schemes offered by The Law Society offering various scholarships, the most relevant of which is the Diversity Access Scheme. This scheme helps provide financial assistance to those who have faced exceptional obstacles in the course of gaining a professional qualification and are wanting to fund their year doing the LPC or Bar. On the surface it appears that there is encouragement of diversity and the promotion of equality at a basic level. But somewhere in between university graduates and the judiciary members there is a significant dip in representation.

This leads to the conclusion of two broad theories. The first being that there is a lack of diversity within the judiciary because there are still structures such as the Old Boy’s Network that exist and consequently encourage the white, middle-class male figure to dominate the judiciary. The second, being the more positive theory, which is that the diverse nature of the judiciary is simply yet to fully develop as there have been developments in diversity; with 1.9% of the judiciary from an ethnic minority and 14.1% female in 2001, which has gradually increased to 4.2% and 22.6% respectively. There may be a simple answer for the lack of diversity and it is impossible to force such diversity to happen overnight.

This, by no means, an attempt to promote positive discrimination in order to improve the situation – which has actually been suggested as a strategy by Police Minister Damian Green to remedy the unrepresentative percentages in the police force (27.3% of police offices being female and 5% being from an ethnic minority) – such a consideration would undermine both the ideals of meritocracy and the genuine skill that the current members of the judiciary hold.

But when “an analysis of almost 13,000 case files found that the CPS was more likely to object to bail for male African Caribbeans (13.2%), compared with white men (9%)” then there is a genuine concern in the public over equal treatment; and this concern would likely see improvement if the judiciary that attempts to enforces such equality was more representative.

It is unclear whether there is a direct link with the enforcement of justice and the diversity of the judiciary, but what is and has always been clear, is that to not have (or not attempt to develop) a diverse and representative judiciary not only undermines public confidence, but undermines the equal justice that is being enforced. It is logically and obviously a constitutional issue when the public are not represented by the judicial bodies that are meant to assist them.