Kate Malleson, Professor at Queen Mary, University of London and an Executive Committee member of the Equal Justices Initiative, which seeks to promote the equal participation of men and women in the judiciary in England and Wales by 2015.
This week saw further discussion of the proposed changes to how judges are appointed in the Crime and Courts Bill 2012 (here and here). In this paper, delivered in response to a lecture by Sir Stephen Sedley at Mansfield College, Oxford earlier in the month, Kate Malleson asks whether a diverse judiciary is still a pipe dream?
Twenty years ago, around the time when I first became interested in the issue of diversity in the judiciary, the Lord Chief Justice, Lord Taylor said:
‘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’.
As we all know, that hasn’t happened. The judiciary remains largely white, male and middle class and it becomes paler, maler and more socially advantaged the higher up you go. England and Wales is not alone in this. This pattern is repeated around the world and in almost all liberal democracies is a cause of much scrutiny and concern. There is now a clear consensus, in many jurisdictions that, in the words of Lady Hale, ‘a diverse judiciary is an indispensable requirement of any democracy’ (p.2). Yet despite this, no democracy to date has achieved a genuinely diverse judiciary and in England and Wales there is no prospect that it will happen any time soon.
In the light of the intransigent nature of the problem, I want to put forward two arguments. First, that the issue of judicial diversity is inherently political and only a political commitment to change will bring it about. Second that diversity will bring problems as well as benefits and that we need to be much more honest about the implications of a more diverse judiciary.
The importance of strong political will
The centrality of political will is evidenced by looking at comparative experiences. The problem of lack of diversity is, as I’ve said, widespread. But there are examples of judiciaries in democracies which have changed their composition quite dramatically over a relatively short period of time. Canada has increased women at all levels of the judiciary, South Africa has transformed the judiciary in terms of ethnicity, Northern Ireland has quietly and dramatically changed the composition of the judiciary in terms of community background, with a roughly equal number of Catholics and Protestants. How have they done this? The common factor in all three cases is strong political commitment to change.
In England and Wales this political will has been lacking. The official approach to the problem of lack of diversity has been to argue that a combination of reformed appointments processes and the natural ‘trickle up’ of non-traditional candidates entering the legal profession into the pool of candidates for judicial office would lead to change. For many years I subscribed to this approach. I was a strong supporter of the new judicial appointments commission created in 2006 and thought it inevitable that the best of my many wonderfully talented and socially mixed students who passed through my classes at the London School of Economics and Queen Mary College London would, because they so clearly had merit, find their way onto the bench in 20 years.
Instead, to my dismay, they filtered out of the pool, or rather they did not seem to find their way into the pool. That pool has traditionally been limited to a very small sub-set of lawyers: mostly barristers disproportionately male, middle class, white and working in commercial chambers in London. I had assumed that the new judicial appointments process combined with the expansion of talent amongst lawyers from different backgrounds would inevitably lead to an expansion of this pool. With hindsight, I overestimated the political commitment to change amongst politicians and underestimated the strength of resistance from those lawyers and judges who benefited from the system.
The centrality of merit
Over the last 20 years a string of official enquiries, consultations, select committee reports and legislation proposing a huge variety of detailed changes, including the most recent Crime and Courts Bill. None has had more than marginal effect. Nor will they. The reason being that they all focus on improving processes but lack the political commitment to challenge a key barrier to diversity which is the way in which merit is constructed in the judicial appointments process. Running through all of these official policies is a common theme – that we must have change but that there must be no change to how we construct merit. What is meant by merit therefore lies at the heart of the politics of judicial diversity. Merit in judicial appointments is highly problematic because the qualities required of a judge in a common law system encompass a far wider range of characteristics than technical legal knowledge. The Lord Chief Justice, for example, has talked of the need for judges to be ‘wise to the ways of the world’ and to have ‘moral courage’. Such qualities are not easily susceptible to quantitative measurement and comparative ranking. Appointing judges is an art not a science.
We are very lucky in this country that judicial office is highly valued and competitive so that the quality of applicants is generally high. The judicial appointments commission therefore must often choose between candidates who have a generally high level of knowledge, abilities, skills and experiences accrued over 15-20 years in practice. Which brings us back to politics. How do we decide which qualities and characteristics are prioritized amongst competent and well-qualified candidates? In practice, the definition of merit applied to date, in a system which remains heavily dominated by lawyers and judges, has tended to prioritise candidates who share the characteristics of those who have been appointed before them. There therefore is a strong inbuilt tendency to self-replication and homogeneity. Moreover homogeneity has, itself, been seen as a merit. Or rather the consequence of a homogenous judiciary are seen as a merit. By that I mean the common understandings and shared values, what might be called the strong tribal bonds which have been such a dominant feature of our judiciary, have been highly valued.
The benefits (and problems) of judicial diversity
This brings me to my second point. The tendency to see value in homogeneity cannot simply be dismissed out of hand because homogeneity does have benefits. A homogenous judiciary can present a united front to the world which can enhance judicial independence, it can enforce standards of conduct through informal social pressure within a strong culture of collegiality. These qualities may not be as easy to foster in a more diverse judiciary. Like a functioning democracy, a more diverse judiciary will be much more messy. Because diversity doesn’t just mean adding a few people who happen to be women, gay, non-white or born into a less privileged family but are essentially the same as those already appointed. A genuinely diverse judiciary will be composed of people who see the world differently. That will bring richness to the judicial process and, vitally, democratic legitimacy but also problems.
So a mature debate on judicial diversity requires us to acknowledge two related arguments. First, that achieving diversity requires real political commitment to change, not just from political actors but from lawyers and judges, and, second, that a diverse judiciary will be a different judiciary. If we continue to pretend that a diverse judiciary means a judiciary with a few different faces on judges with exactly the same understandings, values and attitudes, then merit will continue to be constructed in terms of self-replication and a genuinely diverse judiciary will remain a pipe-dream.
 Lord Taylor (1992), The Judiciary in the Nineties, The Richard Dimbleby Lecture, London p. 9.