Archive

Legal Topics

Putting Youth Rehabilitation at the Heart of our Attention

By
5 March, 2014
Ashleigh Hamidzadeh, Criminal Law, Human Rights Law, Law & Practice, North East Law Review Blog Competition
Leave a Comment

475px-Hinged_Handcuffs_Rear_Back_To_Back

-Ashleigh Hamidzadeh (LLB Law, Newcastle University) a.t.hamidzadeh@newcastle.ac.uk

Prison – population in the UK is around 83,151 (Ministry of Justice 2013) – has evolved since the 19th century into the most arduous form of punishment in the United Kingdom. The number of detained young offenders is 1,350 (Transforming Youth Custody – government response to the consultation, transforming-youth-custody-consultation-response 2014). What is the role of punishment? Deterrence? Incapacitation? Or rehabilitation? The Coalition Government is “Putting Education at the Heart of Detention.” So, this blog is putting youth rehabilitation at the heart of our attention.

Punishment today is a strategy of crime: Durkheim believed the role of punishment was to enforce the collective conscience as well as instil the importance of social solidarity. The method of doing so is, punishment as a deterrence. The punishment faced by an offender for committing a wrong doing discourages future offending. Deterrence in action: The Conservative Party Manifesto 1979 promised a “Short, Sharp, Shock” programme to youth offenders. Another approach is incapacitation, the policy of punishment to remove the offender from the capacity to offend once more.

How to control in a detention centre: Foucault, would argue that disciplinary power is the most dominant, this is when power can be held over both the body, and increasing the mind, predominantly through the use of surveillance. Foucault describes this, by using concept of the “Panopticon” (Foucault, 1995). The Panopticon was a style of watchtower in prisons, in which prison guards were able to view all prison cells, however, the prisoners were not aware of when this would occur. Resulting in the conformity of prisoner’s behaviour. Foucault describes this as “Self Surveillance”, which subsequently results in “Self Discipline”.

Punishment as an opportunity for rehabilitation? The enactment of the Crime and Disorder Act 1998, under section 41, established the Youth Justice Board (YJB). This body operates to reduce reoffending and provide support of the victims of crime, as well as assisting the Youth Justice System. Section 41 (5) (b) (iv) provides that the Youth Justice Board must take “the steps that might be taken to prevent offending by children and young persons” (Crime and Disorder Act 1998, s.41 (5) (b) (iv)). The then Home Secretary, Jack Straw MP, described the department as necessary in the operation of the “fractured and immature youth justice system” (Travis 2011).  The Youth Justice Board is still in operation today, with between “10 to 12 members, which are appointed by the Secretary of State.” (Crime and Disorder Act 1998, s.41 (3)). As of 2012 and 2013 the net expenditure of the Youth Justice Board was £336.9 million (Grimwood, Strickland, 2013).

In the United Kingdom today we have seven Young Offender Institutions, aimed at rehabilitating young offenders, aged between 18 – 21. However, with currently, 71% young offenders reoffending within 12 months of being released, there is substantial need for reform. ‘Her Majesty’s Inspectorate of Prisons’ (HMIP) in an annual report in 2011, stressed the need for all youth offenders to “be involved in activities that give them the habits, experience and training they need to get and hold down a job when they leave custody” (Allen 2014).

What are “Secure Colleges”?

The Legislation: Under the proposed Criminal Justice and Courts Bill, clause 17 grants the Secretary of State the competence to “the power to provide secure colleges in

England.” (Criminal Justice and Courts Bill Fact sheet) Neighbouring ‘Glen Parva Young Offenders Institution’, the first “Secure College” has been planned to be constructed by 2017, holding over 320 young offenders (Casciani 2014), aged between 12 to 17 years old. The primary attention of these detention units will be on the need for education. The need for educational assistance can be demonstrated when considering that 86% of young offenders, who are currently in Young Offender Institutions have, at one point, been excluded from their school. “Transforming Youth Custody – government response to the consultation”, illustrates the urgent need of education for young offenders, with “over half of 15–17 year olds in YOIs have the literacy and numeracy level expected of a 7–11 year old.”

“We need to make sure that time spent in custody is time well spent. We need to turn these young people into better citizens not better criminals…” (Travis 2011) Nick Clegg has described these “Secure Colleges” as necessary to teach discipline and future life skills.

A previous example of education being used as a catalyst deterring young people from crime can be shown in the American study of the ‘High Scope’. “The Perry Pre School” (Highscope) was a community programme aimed at crime reduction. The experiment took a group of economically disadvantaged African American children in Michigan, and taught an intellectual experimental programme, as well as visiting the families of the children. The experiment continued into adulthood, discovering that those children involved in the project had fewer lifetime arrests, as well as being in education and employment (Schweinhart L. J. 2003. “Benefits, Costs, and Explanation of the HighScope Perry Preschool Program” 2003).

However, the Standing Committee for Youth Justice, have been in much disagreement with the proposed reforms. Penelope Gibbs, the Chair of the Committee, argues that the principle target for change is not the education of youth offenders, but further social causes, and has been quoted as stating: “A more holistic therapeutic model is needed rather than a gimmicky repackaging of our current costly and broken approach to child custody”.

Similarly, The Labour Party’s Sadiq Khan (Shadow Justice Secretary), commented on the need for education, but added that this proposal was insufficient in itself: “Education is crucial in reforming criminals but building one new establishment in the future will do little to reduce the reoffending rate across the rest of the country.”

The aim of “Secure Colleges” is to strive towards greater educational attainment within detention facilities for young offenders, the Secretary of State for Justice, Chris Grayling has stated that “We want education with detention rather than detention with some education.”  (Sellgren 2014).

On the 24th of February, the House Commons passed the Second Reading of the Criminal Justice and Courts Bill. The implementation of “Secure Colleges” proposes a need for better education in the provisions of youth offender’s facilities. However, the budget for the reform has been set at less than £100,000. This is considerably lower than the current yearly spending on Youth Offender Institutions, which is approximately £178,000 (Casciani 2014). The future of the “Secure Colleges” will, for now, depend upon the Criminal Justice and Courts Bill Committee Stage reading.

 

The Consumer Rights Bill: Progression or Regression?

By
4 March, 2014
Consumer Law, Georgia Mitchell, North East Law Review Blog Competition
Leave a Comment

Money-pounds

– Georgia Mitchell (LLB Law, Newcastle University) g.e.mitchell@ncl.ac.uk

The Consumer Rights Bill: A piece of legislation which aims to modernise and simplify consumer protection law whilst clarifying consumer rights. The main purposes of these amendments are to make consumers better informed and protected when purchasing an item and entering into a contract. Supposedly, the draft bill will enlighten customers about what they can expect when purchasing an item; whilst also establishing what they can do when goods, services or digital content do not meet the requirements set out in the piece of legislation.

Acclaimed as the most radical overhaul to consumer law for over three decades, the draft bill was announced in the Queen’s Speech in May. Nonetheless, as it still has to undergo parliamentary scrutiny in the Commons and the Lords it is unlikely to become law until early next year.

Regulatory expert, Pauline Munro recently remarked that, “Not only does the draft Bill bring consumer law into the digital age…it will also provide clarity in respect of the rights of consumers to redress”. The new bill has generally been seen as a necessary and positive piece of legislation and should, in theory, make for a better and more efficient system within consumer protection law.

This being said, it is necessary to explore whether the bill actually does protect consumers sufficiently. If so, are these implemented safeguards too restrictive on businesses? Do regulators have too much power over businesses? Moreover, are consumers even aware of their rights?

The bill visibly outlines the protections and rights of the customer. S 32 (1) of the bill clearly sets out where liability cannot be excluded or restricted. Whilst these prohibitions are welcome, some of the protections provided in the bill are arguably not sufficient, rendering the utility of liability limitation somewhat limited. Little improvement has been made to preceding legislation. For instance, it is argued that the term ‘satisfactory’ is too broad, allowing companies to continue to sell products that are not made to a sufficient standard. Many consumers will remain to receive low quality goods/services without the option to hold the sellers accountable by receipt of a refund or some other type of compensation.

However, a more commonly held view is that the draft bill has the potential to be detrimental towards businesses, giving regulators too much authority. It appears to award much wider powers to regulators, such as the Trading Standards Institute, to take action following suspected breaches within consumer law. A Freshfields note highlights that under the bill, regulators are entitled to go to court to get an order to ensure a business compensates consumers. However, the regulators only have to show that the supposed breach has “more likely than not” been committed, in comparison with the “beyond reasonable doubt” threshold that regulators must comply with if they were to seek a fine. The difference in the required level of proof is somewhat strange: the compensation which would be received in a national case would be appreciably greater than that of a fine in a criminal prosecution. Therefore, compensation should surely necessitate a high level of certainty in whether a breach has actually occurred. Further from this, regulators can also enforce compensation without even going to court. Many traders are being coerced into providing compensation without even being allowed the opportunity of fair discussion. Court is not typically an ideal situation for traders/small businesses – it can provoke bad publicity and is generally a very costly process.

However, the restricted approach regulators adopt over companies unquestionably possesses an array of positive improvements. The draft bill, combined with regulators’ more stringent approaches with companies, is successfully reversing recent price hikes. Energy regulator, Ofgem, has told five of the six electricity distribution companies to cut costs for consumers. It has rejected their investment plans, believing they should be able to “deliver more for less“. This decline in price is a very positive sign for consumers and reflects that regulators are able to successfully control larger suppliers to protect consumers further.

This considered, it should be asked whether the bill benefits businesses at all.

The main gain for business is simplicity. Eight separate regulations and pieces of legislation are being combined into one whole act. “Statutory guarantees” are now replacing implied contract terms: the aforementioned s 32 ensures sellers must guarantee that goods are of satisfactory quality, fit for their purpose and match any descriptions. These ‘guarantees’ further simplify the law and make consumer rights clearer and definitive, as opposed to the current ‘implied contract’ terms which have proved to be vague and inconsistent.

Unfortunately, alongside the advantages, the improved clarity of the new rules can also act as a detriment towards companies. For example, previously, buyers had to return goods within a ‘reasonable time’. This proved to be unclear. The draft bill now states that if a customer returns faulty goods for repair but the goods become faulty again in the future, they will be entitled to a full refund. This new rule does not assert any particular time period. The term ‘reasonable time’ is not mentioned in the draft bill. It can be assumed that provided a product has become faulty again, (regardless of the length of time that has passed since the original purchase) the consumer will still be entitled to a full refund. Despite being clearer, consumers have the potential of taking advantage of the more flexible statutory rights, returning items months after purchase which may have been damaged purely through fault of their own. Moreover, online retailers will be required to give consumers a fourteen day “no questions asked” right to return goods. Considering that the current rules permit only seven days, this is another example of consumer’s rights becoming stronger and prone to abuse.

Currently, a majority of the public remains unaware of consumer law protection. New research shows that Brits are ill-equipped and poorly-informed when it comes to knowing their consumer rights. “While 4% claim to have a strong grasp, almost half (47%) admit to being in the dark, leaving them at risk of losing out. As a result, uSwitch is urging the Government to not just simplify and modernise consumer law, but to now ensure that consumers are educated about their rights too”. The draft bill will hopefully improve this issue and provide for a more comprehensible piece of legislation; ensuring that many more consumers are aware of their rights. The Consumer Rights Directive (which was passed by the EU in 2011) states that all EU member states must have the directive implemented by the end of 2013. Considering this is an EU directive, the UK is not awarded much flexibility in altering the law to ensure alignment and consistency of the rules across all EU member states.

The current lack of knowledge could be a result of the lack of media coverage on consumer law or simply due to the public’s apathetic stance towards this area of law. A lot of people are discouraged by the thought of reading such legislation; either due to the time-consuming nature of it or simply because they believe they would not comprehend the wording. This could be a potential opportunity for businesses to exploit customers by excluding themselves from all liability within their contracts, without consumers even noticing. However, online retailers will have to inform consumers of their rights upfront. If they fail to tell the consumer about their rights then the consumer has the option to return goods for up to one year after purchase, as opposed to the aforementioned fourteen days. This is a minor but significant step to improving the situation and making consumers more aware of their legal rights.

Furthermore, the government is also improving this situation by delivering better information and protection to consumers, by publishing reports on consumer empowerment strategies and reorganising the ‘consumer landscape’ to make consumer organisations (such as the Citizens Advice bureau) simpler to understand and more efficient. Although these actions are a positive start, it could be argued that alterations in legislation alone may not be the best vehicle in educating consumers across the board. Whilst the improvements in the draft bill should be commended, it is important for consumer information to be delivered through means other than directives and reports alone.

Some key legislation has unusually been excluded from the bill. Changes are needed to implement the EU’s Consumer Rights Directive and to also implement legislation to “provide new rights of redress for consumers who have been victims of a misleading or aggressive practice.” The government has decided that these two sets of changes will be brought forward as secondary legislation and will not included in the draft Bill. The reason to this remains unknown and perhaps demonstrates that consumer law still remains slightly unclear. Overall, despite the draft bill proving to be slightly too harsh on businesses, it indisputably condenses the consumer law and for the most part clarifies it for companies and more importantly, for consumers.

Human Trafficking – The Darker Side of the Olympic Gold

By
3 March, 2014
Human Rights Law, Keira Constable, Law & Equality, North East Law Review Blog Competition, Sport Law
Leave a Comment

flickr-4354788542-max_2560

(Image Attribution: By adrian8_8 [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons)

– Keira Constable (LLB Law, Newcastle University) k.a.t.constable@newcastle.ac.uk

With the 2014 Winter Olympics having just finished, I still wonder why the International Olympic Committee (IOC) chose to have these high-profile games in Sochi, Russia. Aside from the outrageous laws that were passed concerning gay propaganda, and the dangerously uncompleted accommodations for the press and tourists, Russia is still one of the largest source countries for trafficking in persons (TIP); specifically the trafficking of young women and girls. And while TIP occurs in every country around the world, Russia has been particularly lax in enforcing it’s laws on human trafficking, to the point where the U.S. Department of State’s Trafficking in Person’s Report 2012 labeled it as Tier 2 on the watch list, which basically means the country has legislation in place, but the current laws aren’t doing much to suppress TIP. I’m sure a country’s track record in combatting human trafficking doesn’t even appear on the radar when the IOC chooses where it will host the upcoming Olympic Games, perhaps it should be a factor for upcoming games.

Large international sporting events draw in massive amounts of people – athletes, media, and tourists alike. While tourist money does affect the local economy in many positive ways, it is also proven that tourist dollars can be used for evil, for instance, buying a pre-teen girl for a couple of hours; something that if one were to get caught doing in one’s home country, they would be criminally charged and thrown in jail. The sad fact of the matter is, sporting events such as the Olympics drive up the demand, and supply, of trafficked victims and if the host country’s TIP laws are already not up to international standards, how can we (the international community) help the victims of such a terrible crime, if we are the ones perpetuating the demand?

In 2000, the United Nations Office on Drugs and Crime (UNODC) created the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children which defined what TIP as the “recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” (United Nations Office on Drugs and Crime, 2000) Russia signed the protocol in 2000 and ratified it into domestic law in 2004. This (relatively) quick ratification was probably due to the government knowledge of the widespread abject poverty after the collapse of the Soviet Union in the early 1990s, which would lead people to try to make money by any means. Also, the lifting of the Iron Curtain freed the movement of peoples across former Soviet countries’ borders, either through legal or illegal means.

The Winter Olympic Games may not bring as many spectators as the Summer games, but they still bring a surge in tourism to the host city. In 2010, the Winter Olympic Games were hosted in the Canadian city of Vancouver, British Columbia where, according to the CBC (Canadian Broadcasting Corporation), “The [Canadian Tourism Commission] said the value of Canada’s tourism brand in 2010 was $132 billion, which it said was a 7.2 per cent increase compared with the pre-Olympics valuation.” (CBC, 2011) In countries with strict immigration laws, traffickers use these events as an easy way to obtain visas and masquerade their victims as spectators. (Hayes: Human Trafficking for Sexual Exploitation at World Sporting Event, 1106). But what about places like China, or Russia – two very significant source countries for human trafficking victims?

According to the Consortium for Applied Research on International Migration for the Eastern Neighbourhood of the European Union (CARIM-East) report on Russia, an estimated 30,000 to 60,000 women are trafficked out of Russia each year. This makes it one of the largest source countries on the planet. These women, for the most part, are trafficked into sexual slavery. While there is obviously no data to reflect the impact on sex trafficking in Russia in relation to the Winter Olympics as it is too early to tell, one can easily assume that traffickers would keep their girls local for the games. Not only is it less expensive for traffickers, since they don’t need to pay for plane tickets to send these women to another country, but they have thousands of people flocking to a country where sex laws are less strict than their own (for the most part) which drives the local demand way, way up, which, in turn, enables the traffickers to jack up the prices for pimping out these women – money that these women will never see themselves.

Taking all this into consideration, perhaps the IOC should start taking into account the impact that sex trafficking has on a country before that it is chosen to host one of the world’s biggest sporting events. While no country is immune to TIP, there could be bigger sanctions in place for those countries that fail to have proper legislation, or enforcement of existing legislation, concerning human trafficking, and are being considered to host an international sporting event. Despite the Olympics only just ending in Russia, from the notoriety of it being a source country, we can easily assume that the exploitation of women and children for sexual purposes in that country has  drastically increased this year due to the Olympics and its poor reputation in regards to TIP. From this, the IOC needs to look beyond the gold medals and the bright lights of the pistes and racetracks, to the broader impact the Olympics has on a host country and its people – namely, the women and children that fall prey to human traffickers and are sold to rich tourists to be used as sex slaves.

 

Constitutional Reform – A Labour of love?

By
2 March, 2014
Constitutional Law, Harry Dyson, Human Rights Law, North East Law Review Blog Competition
Leave a Comment

tonyblair

 (Image source: http://www.dailymail.co.uk/news/article-2138668/Im-ready-comeback-Blairs-millions-quitting–wants-engage-UK-politics.html)

 – Harry Dyson (LLB Law, Newcastle University) h.dyson@newcastle.ac.uk

Constituents being able to sack their own MP, televised trials, Scottish independence, and prisoner’s rights to vote; these are all constitutionally significant changes that have been proposed.  The Government have shown little in the way of support for any of these, and in the case of Scotland outright opposition. The Government should exercise caution in passing any constitutionally significant legislation and take a hard look at constitutional reform implemented by New Labour.

With our Constitution being more complex and ambiguous than Starbucks’s tax return, how did New Labour fare in their plight to modernise it? An un-written constitution is a wonderful thing, it facilitates modernisation and social change. However the reforms since 1997 have shown both the positives and negatives of an un-written constitution. New Labour’s reforms principally advocate one message to any government aiming to reform; partisan politics have no place in such a process.

The House of Lords have been a thorn in the side of the Labour Party since the days of Ramsay Macdonald, and in 1999 New Labour fought back. The main weapon in Blair’s arsenal being the House of Lords Act 1999. The casualty of this fight against the Lords was unfortunately the relationship between the two houses, which was unwittingly reshaped. The creation of life peerages and the reduction of hereditary peerages to just 92, as pledged in their manifesto, aimed to be more proportionate of Parliament therefore Labour wielding more power. However this unwittingly granted the Lord’s a slither of the one thing that could make them more powerful; legitimacy. Thus the Lords started to challenge their constitutional role, starting with constitutional conventions. That very same year Lord Strathclyde boasted that the convention that the Lords would not veto secondary legislation was ‘dead’. Lib-Dem Lords went as far as to openly oppose the Salisbury convention! Labour’s partisan legislation thus unwittingly inspired a train of thought advocating the Lords vetoing manifesto pledges – counter-productive for both our democracy as a whole and for the Labour Party.  The 1999 Act was short sighted and failed to protect conventions which are key to our democracy. Lesson one; stay well clear of partisan party politics.

A question that will haunt Tony Blair forever; did New Labour get anything right? The Human Rights Act 1998. This radical constitutional change was carried out very well. The 1998 Act incorporated most of the Human Rights Act into our law. However it did so while protecting the holy grail of constitutional theory; Parliamentary sovereignty. Dicey advocates Parliament is not ‘politically sovereign’ – It would be almost impossible, politically, to repeal the HRA without a suitable replacement. However legally Parliament could repeal it whenever they pleased. The Act allows the court simply to file a declaration of incompatibility if new legislation breaches the convention. So Parliament could in theory legislate contrary to every article in the ECHR. Despite this the ECHR is seemingly obeyed, for example the Belmarsh case. Here it was held the Anti-Terrorism Crime and Security Act 2001 incompatible and Parliament swiftly amended it as appropriate. The Act may have appeared moderate by having such limited court power, however understanding of Diceyan theory explains why this approach works well. New Labour exercised the caution and restraint here that was missing in their Lords reform. Lesson two; respect Dicey.

Maintaining the separation of powers is an underlying theme throughout Labour’s reform. The Constitutional Reform Act 2005 removed the Law Lords from the Upper Chamber and removed the Lord Chancellor’s judicial functions. This stripped Blair’s old friend and mentor Lord Irvine of the role of speaker of the Lords – a welcome modernisation. This constitutional reform, in contrast to Lords reform, although not escaping criticism, showed almost apolitical legislation. Any future constitutionally significant legislation will have to, in order to benefit the country, be somewhat apolitical in nature. Lesson Three; to coin a phrase used by Ramsay Macdonald in 1929 – reform should ‘put country before party’.

Allowing prisoners to vote may seem a fresh liberal approach, and yet another chance to throw around the term ‘human rights’, however it should be looked at with both foresight and caution. Lords reform is a prime example. I wouldn’t go as far to suggest that the ‘criminal vote’ would have a significant impact on British politics – however how would the political parties win this vote? If this would cause a lean in policies ever so slightly towards prisoner friendly policy, is this something we can allow? Despite the fact Labour may benefit from a prisoner vote, perhaps it should follow Blair’s stead in the case of the Lord Chancellor and put country before party.

Televising trials is also a risky proposal. The media already have an unwelcome influence on trials, especially given the lack of anonymity for defendants (Operation Yewtree being a prominent example), should we really be welcoming more? The possible political influence also shouldn’t be underestimated, as we have seen before in the Venables case. Labour’s reforms were successful because of their maintaining of the separation of powers – keeping politics out of the courtroom. Once again caution has to be exercised. In the meantime Mr Pistorius will be making for interesting viewing.

Scottish independence would easily dwarf Labour’s efforts in terms of constitutional reform. The unintended results of relatively minor Lords reform should be a huge warning shot to politicians on both side of the debate. Should Scotland vote for their independence it will prove to be the biggest ever test of a Government’s ability to implement constitutional reform.

Whatever your political persuasion one thing is clear; the Government of the day need to take extreme care in even the most moderate of reforms. New Labour’s efforts were on the whole beneficial for our country, however they highlight the need for foresight and caution. Scotland’s bid for independence is currently the biggest threat to our constitution, the changes it would force could have very unpleasant results in the long term for our constitution. However what is for certain is that a yes vote on the 18th of September would make for a very interesting couple of years for Public Law students and commentators.

 

Judicial Diversity: A Gradual Process

By
1 March, 2014
Law & Equality, Law & Practice, Michael Keightley, North East Law Review Blog Competition
1 Comment

The-11-judges-sworn-in-fo-001

Image Source: http://static.guim.co.uk/sys-images/Guardian/Pix/pixies/2009/10/1/1254436575766/The-11-judges-sworn-in-fo-001.jpg

– 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.