Tuesday marked the launch of JUSTICE’s Working Party report, Increasing judicial diversity.  The Lord Chief Justice, Lord Thomas, spoke at the event, alongside Chair of the Working Party and leading public law barrister Nathalie Lieven QC. She urged those present to take up the report’s vision, and outlined recommendations for systemic, long-term change. Attendees included policy-makers, practitioners and members of the senior judiciary.

This post offers some brief reasons to support the report’s key contention: the current lack of gender, ethnic and social diversity in our highest courts is indeed a serious constitutional issue. With this in mind, the article then turns to consider some of the report’s key recommendations.

A complete list of the Working Party’s thirty recommendations can be found at the end of the report, and a fuller summary of its contents is provided in JUSTICE’s press release. Most of the information on which this article draws is available in the report: see, in particular, Tables 1-3 (p.15-17) and footnotes, and the report’s Annexes.

Why does inclusion matter?

R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union (and the related appeals) was certainly the most-watched case since the UK Supreme Court’s inception. Anyone who tuned in – Supreme Court appeals are live-streamed from the court’s website – could not have failed to notice a curious absence in the room.

The preponderance of white men in Court 1 was stark. To non-lawyers, it must have seemed a strange spectacle: in the 21^st century, how can leading judges and advocates so utterly fail to reflect the nation? Indeed, in the first three days of oral argument, everyone who spoke was a white man – with the honourable exception of Baroness Hale of Richmond.

JUSTICE’s Working Party report is clearly concerned to preserve the legitimacy of our courts in the eyes of those they serve. Public trust cannot be taken for granted if the senior judiciary remains largely “pale, male and stale”. But ensuring confidence in justice, however important, is not the only reason to see diversity as a constitutional issue. Summarising Chapter II of the Working Party’s report, the Chair put it thus:

“In most fields it is fully accepted that decision making benefits from having a range of perspectives and drawing people from the widest possible pool of talent. Judges necessarily bring their backgrounds, education and life experiences to the judgments they have to make …

At the most basic level it does not feel as if the system can be fair or selecting the best candidates when it consistently selects candidates of such similar characteristics.”

Nathalie Lieven QC, Launch of Increasing judicial diversity, 25^th April 2017

JUSTICE’s Working Party is hardly the first to make such arguments: many – including some judges – have long worried about the legitimacy, fairness and quality of a homogenous bench.

Depressingly, progress has been painfully slow – as the timeline in Annex II of the report vividly illustrates. The first woman was called to the Bar of England and Wales in 1922. Almost a century later, just one woman sits in the Supreme Court. Contrast other nations’ highest courts, including many sharing our common law tradition: in Canada, Ireland and Australia, gender parity is within reach. (See Table 3, p. 17).

As set out in detail in the report, the position is even worse when it comes to judges who are not white – zero in the UK Supreme Court, zero in the Court of Appeal, and just two in the High Court (see Table 1). While defendants in the Crown Court are disproportionately likely to be BAME, in 2016 just three Circuit judges in England and Wales identified as “Black” (out of the 560 who declared their ethnicity: that’s a dismal 0.5%). As for social diversity, privately-educated people are significantly overrepresented in the High Court and above. (In the absence of official data, the report uses private education as a proxy for socio-economic advantage. Note that, according to the ISC, average termly private school fees in 2016 were £5,373).

Doubtlessly, there will be some who stubbornly deny the contribution of different backgrounds to legal reasoning. Perhaps, it is thought, insisting on the irrelevance of personal characteristics insulates our judiciary from the kind of scrutiny that accompanied the “Brexit” appeals. Long before the Human Rights Act though, brilliant judicial minds were developing common law concepts like “fair, just and reasonable”. Values surely play some role in the development of our jurisprudence. (Professor Rackley, whose book is cited by the Working Party in the report, has made this argument elegantly).

Even those who doubt the importance of cognitive diversity must accept the legitimacy problem. Since our highest courts will certainly continue to make decisions of far-reaching importance, critical attention is not going anywhere. The marked dearth of women and BAME judges, in particular, will only become more apparent as our Supreme Court continues to develop its constitutionalised jurisprudence.

Let us allow, then, the premise that a senior judiciary drawn “from such a narrow sub-set of society” – white, privately-educated, male Queen’s Counsel – is indefensible in a modern, pluralistic society. For reasons Chapter II of the Increasing judicial diversity report explores in detail, it also deprives the judiciary of brilliant talent. The problem must be urgently addressed.

What does JUSTICE’s Working Party recommend?

The report is split into four substantive parts: valuing difference (chapter II), ensuring accountability (chapter III), fair and proactive recruitment (chapter IV), and working conditions/career path (chapter V).

Perhaps the most controversial recommendation is the call for “targets with teeth” in Chapter III. The report recommends targets for every level of the senior judiciary where there is pronounced underrepresentation of women and BAME people (that’s every court in the Circuit bench and up, with which the report is concerned).

It is hoped that targets will increase the pace of change – giving selectors a clear goal to aim for within a reasonable timeframe, while enabling better scrutiny by providing a transparent benchmark. The Working Party also suggests that selection commissions should report on progress to the Justice Select Committee. The reason to have “teeth”, or a comply or explain model, is to redress the current lack of accountability.

Targets must be distinguished from quotas, which are mandatory, binding requirements (e.g. that one-third of a court must be women). Targets are voluntary, aspirational goals, so the commitment of those responsible is vital. However, the report does warn that if another decade goes by without change, then serious thought should be given to introducing quotas instead.

Widening the talent pool was also of clear overarching importance to the Working Party, as the Chair explained at the launch:

 “It is essential to widen the pool from which senior judges are picked. This doesn’t mean saying a wide group can and should apply, but then not appointing them. That is completely counterproductive and merely discourages diverse candidates. It means genuinely valuing a wider range of experience and expertise.”

A final matter of interest is the causal role the report attributes to unconscious bias in explaining why our senior judiciary has proven resistant to change. As set out in the Introduction and Chapter IV of the report, highlighting unconscious bias is not about criticising individuals, nor about assigning blame. Rather, it is about using evidence to improve systems. Unconscious bias in favour of perpetuating the status quo, for example, is a reality borne out by a great deal of research. For many policy-makers this will already be familiar territory. All systems should account for human error: judges and lawyers are no different to doctors and pilots in this respect.

Conclusion

All of the Working Party’s recommendations are worthy of careful consideration. Its expert membership included retired Court of Appeal judge Sir John Goldring and Professor Rosemary Hunter, an academic who has published extensively on the judiciary.

Perhaps above all, the hypothetical target given at pp. 36-37 – 5 members of the Supreme Court should be women (40%), and 2 BAME (16%), by 2026 – is sure to provoke an important debate at the very highest levels.  Every Justice currently on the UK Supreme Court will retire within the lifetime of that suggested target, so the Working Party is surely right to herald the next decade as a unique opportunity. Whether the opportunity will be seized remains to be seen.

Despite all the other developments on the constitutional horizon, many believe that the time is ripe for change. The current lack of diversity makes it all too easy to paint our senior judiciary as “out of touch”, which over time may diminish the respect rightfully afforded to their judgments.  Moreover, however attractive some find the fiction of the formalistic judge with superhuman powers of objectivity, that fiction is as self-defeating as it is unsustainable. If this report is taken seriously, perhaps we will not have to wait fifty years for a diverse bench.

Rachel Jones is a lawyer at JUSTICE. All views are her own.

(Suggested citation: R. Jones, ‘Increasing Judicial Diversity – A Constitutional Imperative?’, U.K. Const. L. Blog (27th Apr 2017) (available at https://ukconstitutionallaw.org/))