What is it about the concept of “merit” that is causing such problems in judicial circles? Surely any appointments procedure should be a simple matter of assessing candidates’ merit for the job and then appointing the best one. Unfortunately things just aren’t that easy, as the sixth hearing of the House of Lords Constitution Committee into judicial appointments has found.
The previous week the President of the Supreme Court, Lord Phillips, had asserted that judges should be appointed on merit. No story there, you would think. It’s even enshrined in law with simple elegance. Constitutional Reform Act 2005, Section 63, Subsection 2: “Selection must be solely on merit”. Move on to Section 64, though, and you get this:
“Encouragement of diversity: (1) The [Judicial Appointments] Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.”
But keep going to Subsection 2 and you read this: “(2) This section is subject to section 63”. And we know, because we have come in a circle, that section 63 says: “Selection must be solely on merit”.
It is this virtuous yet apparently inconsistent circle that the Constitution Committee witnesses have been dancing around for several months now. It is accepted that we want more diversity in gender, ethnicity “and I suppose, sexual orientation”, as Lord Irvine put it the other week. More of every type of diversity (or individuals with “protected characteristics” as the Equality Act 2010 uncomfortably calls them.) But we keep coming up against this issue of merit.
Early in these hearings lecturer Dr Erika Rackley suggested that diversity should be regarded as a component of merit.This hasn’t found much favour. Phillips said: “Diversity doesn’t have anything to do with merit. You are just fudging it if you add a bit of diversity.” Outstanding candidates based on merit were needed. “I would be reluctant to introduce a formula that might result in that being overborne by diversity considerations.” He would like a Supreme Court with a 50-50 balance of men and women (rather than 11-1 now) “from the point of view of perception” but it’s more important “that it consists of the 12 most outstanding candidates”.
‘You are sitting here with a Supreme Court with one woman on it and the Court of Appeal not representative. I think that that is a problem’ – Roger Smith
Witnesses have been asked: what if two candidates of equal merit were found – would that be a time to give preference to the woman or the black candidate? It is a scenario in which the Equality Act 2010 would envisage “positive action” while banning “positive discrimination” (see note below). Mostly witnesses have been a bit iffy about this, not least because they find it difficult to imagine two exactly comparable candidates.
But a small ray of inspiration seemed to make its way into Committee Room One in the latest hearing. Roger Smith, director of Justice, which promotes legal access and human rights, suggested that the problem was that people were envisaging merit as a pinnacle when in reality it was a plateau. If it is a pinnacle, you have to appoint the “best” person at the summit. But if it’s accepted that there might be a number of good people all capable of doing the job, they exist on a plateau: “If it is a plateau and you are saying that for a judge at this level you need this range of skills, knowledge and so on, it is possible that other criteria may play a part in the decision-making process”.
The implication here is that those making the choice could take in wider concerns – what skills or characteristics were needed on the team rather than simply who was the best of the best. Smith insisted that he was not arguing that “diversity is a component of merit”. “No one should get a post that they are unable to carry out.” But once you have decided who attains the minimum qualification for the Supreme Court “beyond that, I think that you can take into account various issues”.
The committee was rather interested in this. Where could they read more on the “plateau” theory? It’s something they had never heard of before. That’s because I’ve just made it up, acknowledged Smith. But it was important to come up with some answer: “We are sitting here with a Supreme Court that has one woman on it and the Court of Appeal not representative either. I think that that is a problem … The visual impact of our Supreme Court is a problem.” We were shown up by the Canadian and US Supreme Courts.
Peter Lodder, QC, chairman of the Bar, saw change in the air. In particular the lower part-time courts were more diverse and we could look to incremental change , albeit not as fast as Smith might like. There were some female judges in the Court of Appeal and he was pleased that Rabinder Singh QC had just been appointed to the High Court. But we should “make sure the person is worthy of the position” – that merit thing again.
John Wotton, president of the Law Society, said there was little evidence of discrimination in the legal profession as a whole. “However, the further one goes up the tree, the less diverse the group appears to become.”
But how do you do find the right person, however defined? This too has been a theme of the hearings, with talk of excellent candidates being put off by the Judicial Appointments Commission’s complex processes for assessing candidates (the old nod and wink were so much more efficient). A new claim was made at the latest hearing: that many of those who did brave the JAC systems were falling down at one of the first hurdles, the written test.
Initially the test had been criticised for not being legally based; that was changed but then those who had specialist knowledge of the legal example used in the test had drawn on their knowledge – and been penalised for doing so.
There had been controversy about the test, acknowledged Lodder, but not every candidate could be interviewed. “There has to be some sort of process for the large number of applicants for a limited number of places”. The fact that there were many more applicants than before was partly down to success in encouraging them to come forward but also a feature of the economy. When times are hard, lawyers don’t see their future remaining in practice and turn to a judicial career as a safety net.
All three witnesses rejected any notion of Supreme Court judges having to face parliamentary confirmation hearings or other political input into judicial appointments. Smith suggested Sonia Sotomayor’s confirmation hearing in the United States was an example of how bad the system was, showing how an experienced lawyer would simply dead-bat questions. Some of these were unedifying such as those directed against her once having taught international law – because that is a threat to US law.
Lodder warned that such a process would lead to politicisation of the system. The current system [since the 2005 Constitutional Reform Act] in which that political influence had been removed was welcome.
Reports on all this series of Constitution Committee hearings on judicial appointment can be found on the Al’s Law blog. The fifth hearing (Lords Judge and Phillips) is here
The seventh, with Baroness Hale and Baroness Neuberger, is here
The webcast of this hearing is here
Note: Equality Act 2010 guidance on positive action appointments in tie-breaker between candidates of equal merit.
Any use of positive action will only be lawful if:
• The candidate is appointed on merit – the candidate must be as qualified as any other candidate to be appointed. A candidate cannot be appointed just because he or she has a particular protected characteristic, such as being from an ethnic minority
• The employer does not have a general policy of always favouring people with certain protected characteristics
• Any action taken by the employer is a proportionate means of achieving the aim of addressing disadvantage or under-representation in the workforce
Government Equalities Office