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.
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. 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.
Progress towards improving diversitywomen
and BAME judges
||Judges in post
The constitutional significance of a diverse
70. We do not consider that the concept of merit
should be narrowly focused on intellectual rigour.
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."
Judging is a complex activity: it is necessary for judges to understand
the wide array of concerns and experiences of those appearing
before them. A
more diverse judiciary can bring different perspectives to bear
on the development of the law and to the concept of justice itself.
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."
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."
73. Justice, fairness and equality are central
values in the law which should be reflected in the composition
of the judiciary itself.
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.
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."
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.
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."
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.
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,
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.
Yet the so-called trickle-up effect whereby greater diversity
amongst young lawyers should lead to a more diverse judiciary
has failed to materialise to any significant degree.
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.
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."
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."
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.
Whilst concluding that there is no "quick fix",
the Report contained 53 recommendations to improve judicial diversity
and argued that these had to be implemented as a package.
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.
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."
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;
this naturally favours QCs, and it is QCs who are most likely
to fit the white male stereotype.
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
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
and was warmly welcomed by our witnesses, including Baroness Neuberger.
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.
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
· 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.
· 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
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"
whilst Baroness Neuberger stressed the wide-scale nature of this
"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 appointedI cannot think why
that should be."
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.
Diversity training for all those involved in the appointments
process can help individuals to overcome any tendency to appoint
in their own self-image.
As we stated above, it is also important for selection panels
to include a mixture of lay and judicial representation.
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.
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
"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."
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
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."
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.
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.
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."
94. We agree that diversity and merit are
THE THRESHOLD DEFINITION OF MERIT
95. Under the CRA, appointments to the courts
and tribunals of England and Wales must be made "solely on
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
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.
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.
The Lord Chancellor was particularly emphatic in his defence of
"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
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,
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
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.
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.
However, the Lord Chancellor and a number of the senior judiciary
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"
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.
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.
Quotas were described as "insulting"
they would send out the message that candidates had only been
appointed because of their sex, race etc.;
they would dilute the quality of the judiciary
and undermine the merit principle.
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
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:
"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."
In addition, it was argued that targets would "be an indication
of clear and determined political commitment to a more diverse
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.
Those in favour of targets included those representing under-represented
groups, notably the Association of Women Solicitors
and the UK Association of Women Judges
(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.
Lord Judge CJ was concerned that, "however you create the
formula, you [could] end up with what in truth is a quota system."
Some witnesses also argued that although change would not happen
overnight, steps were being taken which would "start moving
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
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.
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
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.
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.
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."
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
109. As noted above,
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."
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.
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
112. One significant reason why certain professions
have become much more diverse in recent years, particularly with
respect to increased numbers of women,
is the increased use of flexible working.
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;
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.
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."
114. The widespread support for the principle
of flexible working has been met with some resistance within the
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.'"
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.
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
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).
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.
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."
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.
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
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,
and the Chartered Institute of Legal Executives (ILEX) even more
so. Employed lawyers,
are also much more diverse.
Whilst the Bar must take its own steps towards increasing diversity
amongst its members,
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 centresthere 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."
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)
and the Government Legal Service which we consider need to be
120. In their written submission, the JAC informed
"There has been little difference in the proportion
of solicitors applying for most roles over the past ten yearsthere
have been small increases but no dramatic leap forward. For some
judicial rolesfor example Circuit judgethe number
of solicitors applying and being appointed has decreased."
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.
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.
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.
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 bethis
"produces a kind of planning blight" for firms.
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."
Baroness Neuberger, Baroness Prashar and members of the judiciary
described their efforts to engage with the Magic Circle firms
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."
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.
However, when questioned, he was uncertain as to whether the Law
Society even had a published policy on judicial appointments
(it does not)
and he stressed that "The Law Society cannot, as it were,
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.
The appointment of more government lawyers and prosecutors to
the bench would be one practical way of improving the diversity
of the judiciary.
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.
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".
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.
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."
131. Jonathan Sumption QC,
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."
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
draw attention here to the benefits which a more flexible career
structure would have upon the diversity of the judiciary as a
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
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
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).
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
See further below, paras 84-88. Back
Q 26 (Professor Cheryl Thomas). Back
See Box 2 below. Back
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
Q 376. Back
Q 251; see also Q 311 (Baroness Prashar). Back
Q 216 (Baroness Hale), Q 251 (Lord Neuberger MR). Back
Q 23 (Professor Alan Paterson), Q 26 (Professor Cheryl Thomas). Back
Q 205 (JUSTICE). Back
Q 205 (JUSTICE), written evidence by Lady Justice Arden, para
Written evidence, para 4. Back
The first women were called to the Bar and admitted as solicitors
in 1922. Back
In the mid-1990s around 13% of senior civil servants were women,
but 2011 this had risen to 35%. There were two grade 1 permanent
secretaries in 1993; by March 2012, 9 (23%) of the 39 permanent
secretaries across the civil service were women. Statistics taken
from the House of Commons Library Standard Note, Women in public
life, the professions and the boardroom, SN/SG/5170 9 March
2012. See also Q 147 (Jack Straw MP), Q 380 (Lord McNally). Back
In 1986/87 the number of women passing the solicitors finals exams
exceeded the number of men for the first time: Law Society Annual
Statistical Report 1987, para 0.2. Relevant statistics relating
to barristers do not go back further than the mid-1990s: http://www.barcouncil.org.uk/about-the-bar/facts-and-figures/statistics/.
We note that in 2010 44% of those securing tenancy and positions
as newly employed barristers were women (56% men) whilst 53% of
those called to the Bar were women (47% men): General Council
of the Bar of England and Wales, Bar Barometer: Trends in the
Profile of the Bar, December 2011. For a detailed analysis
of diversity in the legal professions, see Legal Services Board,
Diversity in the Legal Profession in England and Wales: A Qualitative
Study of Barriers and Individual Choices. Back
This was anticipated as long ago as 1992 when the then Lord Chief
Justice, Lord Taylor CJ stated that "The present imbalance
between male and female, white and black in the judiciary is obvious
I have no doubt that the balance will be redressed in the
next few years
Within five years I would expect to see
a substantial number of appointments from both these groups."
Richard Dimbleby Lecture, The Judiciary in the Nineties,
Q 152 (Lord Falconer). Back
Q 121 (Jack Straw MP), Q 126 (Lord Mackay), Q 245 (Lord Neuberger);
see also Q 317 (Baroness Prashar) Back
Q 361. Back
Q 245. Back
Ibid., para 2. Back
Ibid., para 10. Back
Appointments and Diversity: A Judiciary for the 21st Century,
op. cit., para 20. Back
Q 217. Back
Q 152 (Lord Falconer). Back
The latest statistics published by the Bar Council for 2009-10
show 11% of QCs as female and 4% as BME. Back
Report of the Advisory Panel on Judicial Diversity, 2010,
recommendation 20. Back
Q 217. Back
Q 30 (Professor Alan Paterson). Back
Q 376. Back
Q 223. Back
Recommendations 31, 41 and 43. Back
Q 242 (Lord Neuberger MR). Back
Para 67. Back
Q 68. Back
Q 220; see also Q 216, written evidence by Baroness Hale, para
2, by Sir Thomas Legg, para 17, and by Lord Mance, paras 10-11.
Q 185. Back
Constitutional Reform Act, section 27(8). Back
para 165ff. Back
Q 186. Back
Q 303. Back
Constitutional Reform Act 2005, section 63. Back
Q 30. Back
Q 153, Q 205, Q 262 (respectively). Back
Q 71 (District Judge Tim Jenkins), Q 86 (Lord Justice Goldring),
Q 240 (Lord Neuberger MR), Q 303 (Lord Woolf), written evidence
by the Association of HM District Judges, and by the Judicial
Executive Board. Back
Q 376. Back
We also note the particular requirements of the Supreme Court
in relation to Scotland and Northern Ireland: Constitutional Reform
Act 2005, section 27(8). Back
Report of the Advisory Panel on Judiciary Diversity, op. cit.,
recommendation 21; Appointments and Diversity: A Judiciary
for the 21st Century, op. cit., para 89. Back
Q 224, Q 183, Q 184, Q 364 (respectively). See also Q 96 (Mrs
Justice Macur), Q 206 (Bar Council), written evidence by Lord
Carswell, para 5.7, and by Baroness Prashar. Back
Q 377 (Lord Chancellor), Q 98 (Lord Justice Goldring), Q 240,
(Lady Justice Hallett), Q 240 (Lord Neuberger MR) Back
Q 240 (Lady Justice Hallett). Back
See, for example, the selection exercise for fee-paid members
(medically qualified) of the First-Tier Tribunal, Social Entitlement
Chamber in which 169 appointments were made out of 247 eligible
applications. 12% of those recommended for appointment were classed
as BME and 36% female: http://jac.judiciary.gov.uk/static/documents/offical_stats_oct_to_march_2011_final.pdf.
Though see Q 267 (Cordella Bart-Stuart) and written evidence by
UK Association of Women Judges. Back
Q 188 (Lord Judge CJ). Back
Q 252 (Lady Justice Hallett). Back
Q 266 (Association of Women Solicitors), Q 333 (Baroness Prashar). Back
Q 264 (Cordella Bart-Stuart), Q 265 (Association of Women Barristers). Back
Q 360 (Christopher Stephens), written evidence by Law Society.
Figure suggested in written evidence by UK Association of Women
Judges, para 16. Back
Q 266 (Association of Women Solicitors). Back
Q 264 (Cordella Bart-Stuart). Back
Written evidence by Erika Rackley. Back
Written evidence by UK Association of Women Judges, para 16. Back
Q 266 and written evidence. Back
Written evidence, para 16. Back
Q 267 (Black Solicitors Network), Q 360 (JAC), written evidence
by the JAC 39, para 52. Back
Q 188. Back
Q 379 (Lord McNally); see also Q 119 (Lord Justice Goldring).
Report of the Advisory Panel on Judiciary Diversity, op.
cit., recommendation 5. Back
Q 379. Back
Written evidence by Erika Rackley, paras 24-26, and by Equal Justices
Initiative, para 11. Back
Report of the Advisory Panel on Judiciary Diversity, op. cit.,
recommendations 6 and 7. Back
Q 360 (Professor Dame Hazel Genn). Back
Para 78. Back
Written evidence by Equal Justices Initiative, para 29. Back
Q 157 (Lord Falconer), Q 229 (Baroness Neuberger), QQ 315 and
332 (Baroness Prashar), written evidence by Equal Justices Initiative,
para 53, and by Lady Justice Arden, para 22. Back
See above, para 75 and Q 147 (Jack Straw MP), Q 380 (Lord McNally). Back
The right to request flexible working is to be found in the Employment
Rights Act 1996, section 80F (as inserted by the Employment Act
2002, section 47(1),(2)). Back
The JAC's website specifies that: "The Lord Chancellor requires
that candidates applying for salaried judicial posts should normally
be expected to have previous judicial experience. Provision will
be made for exceptional cases where candidates have demonstrated
the necessary skills in some other significant way. The JAC recognises
that experience as a judicial office holder can provide a
valuable insight into judicial life and help candidates for salaried
posts decide whether a full time appointment is likely to suit
them. This is particularly useful as by convention salaried judges
do not return to practice. The JAC therefore regards fee paid
experience as a desirable, but not essential, criterion for
salaried judicial office and this is consistent with the Lord
Chancellor's policy." http://jac.judiciary.gov.uk/application-process/7.htm Back
Q 260 (Association of Women Solicitors), Q 315 (Baroness Prashar),
Q 361 (Dame Professor Hazel Genn), Q364 (Christopher Stephens),
Q 380 (Lord McNally), written evidence by Equality and Diversity
Committee of the Bar Council, para 12. Back
Q 364. Back
Though not universally, see for example Q 68 (Lord Kerr), Q 189
(Lord Judge CJ). Back
Q 380. Back
Q 296 (Lord Carswell), Q 297 (Lord Woolf); see also Q 144 (Lord
Q 189. Back
Under section 2(1) of the Act the Court of Appeal consists of
ex-officio judges and not more than 38 ordinary judges; under
section 4(1) the High Court consists of six named senior positions
and not more than 108 puisne judges. Back
Appointments and Diversity: A Judiciary for the 21st Century,
op. cit., para 84, question 13. Back
Recommendation 51. Back
Q 296, JAP 60 (Lord Carswell), Q 297 (Lord Woolf), Q 380 (Lord
See the Annual Statistical Reports published annually by the Law
and the Bar Barometer published by the Bar Council: http://cms.barcouncil.org.uk/assets/documents/120105%20Bar%20Barometer_05.01.12_web.pdf.
Written evidence by ILEX stated that 74% of students are women
and 24% from BAME groups; see also Q 401 (Lord McNally). Back
At the employed Bar, which represents just under 20% of the barristers'
profession, 46.4% are women and 12.1% are BME. This compares to
32% women and 9.6% BME at the self-employed Bar: Bar Barometer:
Trends in the Profile of the Bar, 2011. Back
Written evidence by the Association of Women Barristers. Back
Q 157. Back
Written evidence by ILEX. Back
Para 50. Back
Written evidence by Law Society of England and Wales. Back
Written evidence, paras 7-10; see also Q 254 (Lady Justice Hallett).
Q 368. Back
Q 314. Back
Q 218 (Baroness Neuberger), Q 314 (Baroness Pashar), Q 250 (Lord
Neuberger MR), Q 254 (Lady Justice Hallett). Back
Q 254. Back
Q 208, Q 215, written evidence. Back
Q 208. Back
Written evidence. Back
Q 207. Back
In the Treasury Solicitor's Department, over 50% of senior civil
servants are women, and 15% of those at senior civil service pay
band 1 are BME: Treasury Solicitor's Annual Report 2010-11. In
the CPS, women form 75.9% of Crown Prosecutors, 63.9% of Senior
Crown Prosecutors, 49.7% of Crown Advocates and 21.6% of Senior
or Principal Crown Advocates. For those CPS lawyers for whom ethnicity
data are held, BME lawyers form 21.7% of Crown Prosecutors, 18.3%%
of Senior Crown Prosecutors, 14.4% of Crown Advocates and 8.1%
of Senior or Principal Crown Advocates. Source: CPS Workforce
Diversity data 2010-11. Back
Q 150; see also Q 280 (Cordella Bart-Stuart). Back
Improving Judicial Diversity: Progress towards delivery of
the 'Report of the Advisory Panel on Judicial Diversity',
May 2011, p 31: http://www.justice.gov.uk/downloads/publications/moj/2011/judicial-diversity-report-2010.pdf Back
Judicial Appointments Commission, Conflict of interest
See above, fn 196. Back
Q 150; see also Q 280 (Cordella Bart-Stuart). Back
Now Lord Sumption, Justice of the Supreme Court. Back
Justice Committee, The Work of the Judicial Appointments Commission,
oral evidence taken on 7 September 2010, Q 38. Back
Written evidence by Lord Justice Carnwath, Senior President of
Tribunals, para 10. Back