With progress towards improved judicial diversity moving at snail’s pace, ‘the time has now come for quotas’ according to a Report, Judicial Diversity: Accelerating Change, commissioned by the shadow Lord Chancellor Sadiq Khan, published last week. This is not a surprise. Back in April 2014 when announcing the appointment of the Report’s authors, Sir Geoffrey Bindman QC and Karon Monaghan QC, the press reported that “Nothing is off the table”:
“A Labour government would be prepared to introduce the “nuclear option” of quotas for female and black and ethnic minority judges to avoid a 100-year wait to achieve a judiciary reflecting the composition of the population. “
More recently, Lord Neuberger has stated that the absence of judicial diversity, especially in senior posts, is a major concern for the judiciary. Emphasizing that we must not assume that the problem will resolve itself, he continued
“I am not one of those people who optimistically thinks that if we just sit back it will all sort itself out and the judiciary will eventually include many more women and ethnic minorities”.
Quotas in action
The use of quotas system to generate greater judicial diversity is not novel. In the UK the statutory requirement that there is at least one judge from Scotland and one judge from Northern Ireland acts as a de facto quota. Gender quotas already exist in the Belgian Constitutional Court, the International Criminal Court and the European Court of Human Rights with great success. As a result of the gender quotas, the Belgian court is composed of 16% female professional judges, whilst 35% of the judges on the ECtHR and 60% of the ICC are women.
As Kate Malleson has noted the greatest advantage of quotas is that they work and they work quickly. And this is something we need. Of the 47 countries surveyed in the Council of Europe’s recent annual report on the efficiency and quality of justice only Azerbaijan had a smaller proportion of female judges than the UK. With just over 25% of female judges in England and Wales in 2012, 22.2% and 21.6% in Northern Ireland and Scotland respectively, the UK is right at the bottom of the list of European nations, making the argument for change even more pressing.
How might the quota work?
The Accelerating Change report outlines the variety of quotas that might be introduced limited – in the first instance – to gender and ethnicity. It notes that quotas can operate in different stages of the judicial appointments process: at the recruitment stage, the application stage, the short-listing stage, the appointment stage or all of the above. Furthermore, it suggests that any quota system might include a time-limiting clause, incremental adoption or an exception clause (if there are ‘exceptional circumstances’ and there are is an insufficient number of well-qualified applicants from the minority the quotas do not apply).
The authors’ preferred model, however, is the adoption of the ‘ratio method’ (e.g. 40:60 of each gender), as applied in the Belgium Constitutional Court. This works by requiring the Court to be composed of at least a third of judges of each sex.
“Once a court reaches the 40:60 ratio, there would be no requirement to appoint a woman (or apply a quota) unless the overall gender balance fell. A comparable model could be adopted for Black, Asian and minority ethnic (BAME) judges with an appropriately modified ratio.”
So, what’s the problem?
One reason, perhaps the reason, why quotas have attracted very little support in the UK until now is that there is a belief that affirmative action results to unfairness to individual applicants and that such measures are incompatible with existing selection systems based on merit. This is seen to be particularly important in the context of appointments to the senior judiciary.
The Accerlating Diversity report recognizes that merit should still be the essential requirement. However, it discusses the interpretation of merit at length. It suggests that including diversity as an element of merit or as a distinct factor in the assessment of potential candidates will not only improve diversity improve but, also, merit. Merit will not lose its value, as it is, as Lord Neuberger has previously suggested, “a slightly flexible concept.”
Quotas cannot work in isolation. Cultural change is also needed challenge the “old boys” club culture. Other recommendations included in the Report are:
- Action on the part of senior judges to encourage possible candidates from under-represented groups to apply.
- Public Authorities should be willing to release employed lawyers for fee-paid judicial service
- The circuit system should be abolished and replaced with regional appointments
- Increased training, especially of under-represented groups, to equip candidates with the skills needed for judicial office
- Increased data collection on the ethnicity of current judicial posts as well as disability, status, sexual orientation, religion and social and educational background
- Review of the online tests to identify why it is that BAME candidates are failing in disproportionate numbers.
The Accelerating Change report outlines a holistic response through which to ‘accelerate diversity’. It offers a roadmap which, if implemented, would ensure that applicants from more diverse backgrounds not only come forward, but are appointed. And this is important. It is important because ‘difference does make a difference’. It is important because, in Benjamin Cardozo’s, former US Supreme Court Justice, words,
‘out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component merits’.