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Kenneth Clarke: there should be a positive duty to appoint women and ethnic minority judges

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Kenneth Clarke, the Justice Secretary, has announced a plan for “positive action” in judicial appointments to favour women and members of ethnic minorities and promote diversity. He wants to put an obligation into the appointments procedure to choose a person from an under-represented group when there are candidates of equal merit and increase posts for part-time judges.

Clarke told Woman’s Hour: “One of the more straightforward things I’m suggesting is that we enshrine in law for the resolution of doubt that other things being equal when you have two candidates of equal merit, you should prefer the under-represented group . There’s nothing wrong in that.”

The announcement suggests he will go further than Labour’s Equality Act of 2010, which allows employers, if they want, to choose a candidate from an underrepresented group in “tie-break” situations (see guidance note below). He envisages a change in the law for a “tie-break provision” making positive action in such cases obligatory for judicial appointments.

He said: “I’m suggesting we put in place what I imagine most members of the Judicial Appointments Commission have already been doing for the past few years when they can, which is, other things being equal … you should feel under a duty to give priority to the person from the under-represented group.” He stressed that this did not constitute “positive discrimination” because, for example, a weaker woman candidate would not be appointed over a more qualified man – and nor would women want that.

Section 159 of the Equality Act, headed “Positive Action: Recruitment and Promotion” states that the law “does not prohibit” positive action including in tie-break situations “with the aim of enabling or encouraging persons who share the protected characteristic [ie minorities]” to get a job. This might mean special training for women but also that those appointing to a job may (but not must) give preference to a member of a minority in tie-break situations if “A is as qualified as B to be recruited or promoted”, and the employer “does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.” [Emphasis added]

Clarke seems on the face of it to be going further and in effect saying that, for the judiciary, there should be a policy of appointing those from under-represented groups in tie-break situations. Currently the 2005 Constitutional Reform Act requires appointment of judges on merit alone.

‘One of the things that strikes you about a court of law is the expectation that the judge is going to be white, middle class and male. That should change’ – Kenneth Clarke

“It is extraordinary that at the top of the judiciary there are hardly any women and very very few ethnic minority people,” he said. It meant the judiciary was being denied the requisite skills and qualities – “high intellect, clarity of thought, clarity of expression” as well as “the necessary ability integrity” – which those groups undoubtedly had. “One of the things that strikes you about a court of law is the expectation that the judge is going to be white, middle class and upper class, privately educated and male. It’s a very good judiciary but that should change with as near to equality as we can get.”

Asked by Woman’s Hour presenter Jane Garvey whether that would mean a woman of an ethnic minority would be appointed over a white woman of equal merit, he agreed. “I’d go for that as well … lean in the direction of promoting diversity”. He was also asked whether Theresa May, the Home Secretary, accepted the new policy. “I would be floored if Theresa challenged any of this,” he said. She would be “the least likely to have the faintest objection at all”.

The potential to use Section 159 has been the subject of discussions at hearings of the Lords Constitution Committee examining judicial appointments. Lord Neuberger told the latest hearing that he had “no problem” with the use of S.159 for such a purpose. (The session is reported here.) At an earlier session the head of Justice, Roger Smith, suggested the idea of merit should have a wider meaning – “a plateau of merit” which would allow S. 159 action to be taken. (Reported here along with comment on the requirement to appoint “solely on merit”)

Clarke is also proposing that the judiciary could be opened up to more women by having more posts for part-time judges. “I think we have to look at why women don’t rise to the level of wanting to be Supreme Court judges, Court of Appeal judges and High Court judges.” Part time working and job sharing could be an answer.

Lady Justice Hallett told the latest Lords committee that women are unwilling to sacrifice their family responsibilities for a job where the “default is frenetic”.

Rape hoohah
Clarke was asked whether he had come on Woman’s Hour to announce the plans in an attempt by the Conservatives to get back women’s votes or to regain women’s favour after his comments on “some rapes are less serious than others”.

He denied both these suggestions, saying: “My remarks about rapes were eminently sensible and agreed to by most women I knew.” His point was that rape is always a serious crime but some rapes are more serious than others. That’s why there are different tariffs (set penalties) for them. “That was parodied in dozens of different ways in the typical hoo-hah of the next few days.”

Note: Alrich’s Weblog contains reports on all this year’s Lords Constitution Committee hearings so far on judicial appointments and it is intended to publish further reports. Start here with the latest session (Neuberger/Hallett) and follow the links backwards.

Joshua Rozenberg considers some of the issues regarding the Ministry of Justice proposals 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

Does the law need to be changed?
The Guardian reports on how far legislation might be needed to bring S. 159 into judicial appointments thus: “The JAC has said that it is merely a matter of ‘reconciling’ the workings of the Equality Act with the Constitutional Reform Act 2005, which stipulates that appointments must be solely on merit. The Ministry of Justice believes the two laws are ‘in conflict’ and that fresh legislation would be required.”

However, unless Clarke is indeed wishing to go further than the Equality Act and impose a duty to use the S. 159 procedure, one would have thought that reconciliation of the two acts would happen automatically through “implied repeal”. If there is inconsistency, the later act trumps the earlier since there is no reason to think the Equality Act would not apply to the judiciary unless it specifically excluded judicial appointment from its ambit. Nowhere does the act suggest anyone be appointed other than on merit – S. 159 applies only between two or more equally top-placed candidates and only if there is not a general policy of favouring minorities. As Clarke notes, the JAC may be using the wholly voluntary procedure already, perfectly legally.

Judges to the Court of Appeal and Supreme Court, however, are not appointed using the JAC’s general procedures and Clarke may believe that it is those appointers (dominated by judges in large part) or whatever panel replaces them who need a push along the S. 159 route – to feel it is their “duty” to use it rather than just an option.

About alrich

Journalist and blogger on legal and financial/economics issues

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