There should be an obligation to look for ethnic minority, women and other minority candidates for judge’s posts, witnesses told the latest session of the Lords Constitutional Committee looking into judicial appointments.
An amendment to Section 64 of the Constitutional Reform Act 2005, should be made to increase judicial diversity. Currently it says:
“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.” (Note: this section is discussed here)
The last few words should become “range of persons available for appointment”, Nwabueze Nwokolo, chair of the Black Solicitors Network, told the ninth session of the committee. Simply looking at the “range available for selection, we have seen, does not lead to appointment of a diverse judiciary”.
Cordella Bart-Stewart, an immigration judge and former chair of the Black Solicitors Network, backed such an amendment, noting that in Northern Ireland there is a positive obligation regarding judicial diversity.
‘If there was an obligation in the process there would be much more of an imperative to work harder in terms of widening that pool and going into non-traditional places in seeking out the best candidate’ – Cordella Bart-Stewart
Asked by Lord Pannick whether they were saying the Judicial Appointments Commission should take into account sex, ethnicity and whether candidates go to a university other than Oxbridge, Bart-Stewart said: “I’m not saying that in the selection that has to be done but if there was an obligation in the process there would be much more of an imperative to work harder in terms of widening that pool and going into non-traditional places in seeking out the best candidate.
“None of us around this table want to see any dilution of our judges. It’s not going to be of any benefit to the country or the regard in which our judiciary is held around the world.” But an obligation would concentrate minds. She also favoured targets, though accepted the target for women Supreme Court judges need not be 50 per cent – but it should be above 10 per cent.
Kaly Kaul QC of the Association of Women Barristers said the AWB would not support targets or any dilution of the quality of the judiciary. But work could be done on increasing the pool of available appointees. “Trickle up” had failed.
Another potentially controversial proposal (given the doctrine of judicial independence) was on judicial appraisal. Bart-Stewart said: “Appraisal should be extended across the board” meaning to senior judges as well as to those in the lower echelons such as tribunal chairs/judges, who are already appraised.
Kaul suggested there should even be provisional appointments to judicial jobs with appraisal once people were in post – and by implication the loss of the post if the individual fails to measure up.
Linked to the idea of appraisal is that of career progression. Kaul said: “I don’t think a career judiciary is a good idea but improvements could be made if people were fast-tracked.” Bart-Stewart noted: “Once you are in the system there’s not much encouragement in terms of moving forward.” There was a pool of “missing talent” not being made available to the higher positions.
Joy Van Cooten, chairwoman of the Association of Women Solicitors, added that there was no adequate career path from lower to higher levels of the profession. “Sixty per cent of our entrants are women but that does not translate into the judiciary. There has been some success in the lower courts but when we get to the higher courts there are no [women solicitors] except one appointed as a deputy high court judge.”
Nwokolo favoured an approach to appointment characterised as the “plateau of merit” at an earlier hearing by Roger Smith, director of JUSTICE. (This suggests that if there were several candidates all able to do the job, appointment decisions based on the need to appoint people from under-represented groups could be made.) “We don’t want a judiciary that is not meritorious … [but] you may be leaving out a lot of people who would benefit society as a whole.” With the plateau of merit “you look at society as a whole and accept merit exists in many different places and identify merit where you wouldn’t normally look.”
The JAC, since being set up following the 2005 Constitutional Reform Act, had made progress but had not done well on diversity. It should be bigger and its make-up should reflect society with members properly trained in diversity issues so it could identify merit wherever it was, she suggested. Meritorious people are out there. “We do this country a disservice when we appoint from a very narrow pool of people.
Note: Each of these sessions has been reported on in Alrich’s Weblog, with commentary in some cases. The previous session with Lord Neuberger and Lady Justice Hallett is here.
The latest session is streamed here