Erika Rackley, Durham Law School
These are interesting times for judicial diversity. In the same fortnight as public pension cuts hit judges’ pensions and the three vacancies on the UK Supreme Court are filled, Lady Hale – the first, and so far only, female Supreme Court Justice – turned her attention to a number of ‘uncomfortable truths’ about judicial diversity including the (oft-unspoken) fear, that ‘a radical increase in the number of women and BME judges [would] lead in time to lower pay, lower status and ultimately to a less able judiciary’. (You can read her lecture here and as reported in The Guardian here).
And yet, while this and other ‘demons’ were deftly slain by Lady Hale, it remains to be seen what effect the pension cuts will have on quality of judicial applicants and the status of the judiciary as a whole. But what of diversity? Will the change in financial benefits make any difference to the diversity of those opting to become a judge?
Lord Judge has suggested that the proposed cuts could negatively impact on diversity, however as I discussed this with colleagues earlier in the week a different view emerged. On this view, the future looks fairly rosy. After all, another ‘uncomfortable truth’, noted by Lady Hale in her lecture last week, is that across jurisdictions the lower the status and pay of judges, the more women there are on the bench (see further data here). With this in mind, it is possible that the number of women and other non-traditional candidates may well increase over the coming years as they fill the gaps left by (commercial) barristers who decide it is no longer worth their while (in the absence of a tax free pension allowance) to join the bench.
Of course, anything that increases the stubbornly small number of women and BME judges is welcome. However, as another colleague argued, there is a danger that this (potential) ‘victory’ for diversity will be somewhat hollow. After all, the gains made would not be the result of the arguments for judicial diversity having been won, but rather because traditional candidates no longer wish to do the job.
It seems then, that rather than grounding our hopes for diversity in the fickleness of others, we would do better to lend our weight to another aspect of Lady Hale’s lecture: her call to ‘revive the argument for some special provision’ which would ‘enable the [judicial] appointing commission to take racial and gender balance into account when making their appointments’. Hale continues:
‘It may be a genuine occupational qualification to choose a black Othello or a female Desdemona, but could it be thought a genuine occupational qualification to bring a minority perspective to the business of judging in the higher courts? … Would that really be such a bad thing? I think not.’
Nor do I. After all, if a more diverse judiciary is a better judiciary – a judiciary positioned to do its job, to deliver justice – then anything that facilitates progress towards this is, far from being bad thing, should be positively embraced as not only because it is ‘A Good Thing’- but because it is essential.
Erika Rackley is a member of the Equal Justices Initiative, a forum bringing together academics, practitioners, judges and policy-makers to work toward gender parity on the bench.