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Judicial diversity: Lords call for positive discrimination and targets

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The Lord Chancellor and Lord Chief Justice should be under an obligation to encourage diversity in Britain’s judicial appointments – and targets for women and ethnic minority appointments should be set if diversity is not improved within five years, according to a House of Lords Committee.

Minorities should be given priority when the choice of appointee is between equally qualified candidates, says the report by the Lords Constitution Committee. Dubbed the “tipping point” procedure by the Lord Chancellor, Kenneth Clarke, it would utilise Section 159 of the Equality Act 2010 which allows an element of positive discrimination where candidates are equally qualified. It cannot be used for judicial appointments, some argue, since judges must be appointed “solely on merit”, according to s.63 (2) of the 2005 Constitutional Reform Act (as explained here).

‘We do not consider that the concept of merit should be narrowly focused on intellectual rigour … a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself’ Lords Constitution Committee

The committee’s report wants changes in the career structure for the judiciary as well as in work conditions – allowing more part time working and careers breaks as well as encouraging non-barristers to apply for higher judicial posts. The committee, in a series of hearings (all reported on Alrich’s Weblog), has heard calls for a more structured career option for judges, drawing on the skills of lower tier tribunal judges and chairs as well as advocates and also putting in place formal appraisal procedures and career development. Retirement age for Court of Appeal and UK Supreme Court judges should rise to 75 in part to give opportunities later in life to those who haven’t followed a conventional career.

While reluctant to require targets, the committee says: “If there has been no significant increase in the numbers of women and BAME [Black, Asian and Minority Ethnic] judicial appointments in five years’ time, the Government should consider setting non-mandatory targets for the Judicial Appointments Commission to follow.” In January Ken Clarke suggested he might set targets if his own Ministry of Justice proposals to increase diversity failed.

The Lords committee, chaired by Baroness Jay, maintains that judicial appointments should be on merit but hints at the principal that diversity should be a component of merit, an the argument put by some of those in academia and the legal profession who appeard at its hearings. “We do not consider that the concept of merit should be narrowly focused on intellectual rigour”, it says. Being a member of an under-represented group will not in itself make someone a more meritorious candidate, but “a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself”. It can also increase public confidence in a judiciary.

On the issue of judicial independence the committee rules out anything other than a limited role for the Lord Chancellor. His right of veto for lower judicial posts should be transferred to the Lord Chief Justice, a proposal Mr Clarke has also made in the Ministry of Justice report on judicial appointments. The committee rejects any idea of US-style confirmation hearings “in order to ensure judges continue to have appropriate independence from Parliament”. It also rejects a proposal by the MoJ for the Lord Chancellor to be given a short list of candidates for the senior posts to select from (currently he gets one name to accept or reject). It notes:”The use of short lists would undermine judicial independence and be contrary to the principle of appointment on merit.”

Comment
Any talk of even non-mandatory targets and moderate tie-breaker “positive discrimination” will cause horror in some quarters, but many of the Constitution Committee proposals will amount to pushing on a semi-open door only lightly held back by the Ministry of Justice.

The Lord Chancellor, Ken Clarke, has said he already uses Section 159 “tipping point” process for (non-judicial) appointments within his ambit. The issue will merely be whether the “solely on merit” requirement for judges needs to be legislated away or whether the definition of merit can simply be expanded to encompass the wider requirements of a modern judiciary rather than a narrow old-fashioned view of barristerial excellence.

Clarke objects to targets but told the committee in January: “If these proposals [in the Ministry of Justice consultation paper] don’t work then let’s try targets.” He, like the committee, wants the bench to look more like the general population.

On judicial independence the Constitution Committee report also mirrors some of the points Clarke made to it. He wants to divest himself of a say in minor judicial appointments that he knows he cannot practically have a view on; like the committee, he wants the President of the Supreme Court excluded from appointing his own successor; he is no supporter of US-style confirmation hearings. He told the committee: “The American experience is shocking and wanting to get closer to that would be deplorable.”

But the far more real threat to judicial independence is not from Parliament but from greater government control: the Ministry of Justice proposals for the Lord Chancellor to have more say on appointing senior judges (rather than the current partial veto); a seat for him on the panel appointing the Supreme Court president and Lord Chief Justice; wide “Henry VIII” powers for him to be able to redraft appointment procedure with little parliamentary control.

The committee rightly rejected the idea that the Lord Chancellor be given a list of  applicants to choose his judges from – after all, if you can choose one of three, how can that guarantee the most meritorious one succeeding? More importantly it would allow the government to game the system and judges aspiring for promotion to make sure they were well in with the government in crowd by their public statements or behind the scenes.

Neither does the committee see any useful role for parliamentarians on selection committees. How would the parliamentarians be selected? Where would their loyalties lie? The implication, of course, is that the Lord Chancellor should not get his seat at the appointments table either – though that is not spelled out in the report.

The report opposes the idea of allowing the Lord Chancellor powers to issue directions to the Judicial Appointments Commission even on such worthy matters as diversity. After all, once you give him power to do “good” things, how can you stop him going further? “Such a power could lead to political interference and undermine the independence of the appointments procedure,” says the report.

Beyond one loosely secured door at the Ministry of Justice is a far more solid barrier behind which plans are being made to curb judicial independence. The Lords committee has begun to prise it open by asserting important principles. But in all these things, it’s the political battle that will really matter.

Note: All the hearings that led to the committee’s conclusions have been reported on Alrich’s Weblog. Browse them down the side or start from the last hearing here and work back through the links at the bottom.

The Constitution Committee report can be found here

Those interested in judicial independence may wish to view Ken Clarke gets his Henry VIII clause into judicial appointments

The Crime and Courts Bill of May 2012 includes an amendment to the 2005 Act introducing a ‘tipping point’ procedure:

Neither “solely” in subsection (2) [s.63 (2) of the 2005 Constitutional Reform Act], nor Part 5 of the Equality Act 2010
(public appointments etc), prevents the selecting body, where two persons are of equal merit, from preferring one of them over the
other for the purpose of increasing diversity within—
(a) the group of persons who hold offices for which there is selection under this Part, or
(b) a sub-group of that group.”

Additionally references to limits on numbers of judges are amended to “full-time equivalents” to offer opportunities to part-time judges.

Section 159 of the Equality Act 2010
Positive action: recruitment and promotion
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a) overcome or minimise that disadvantage, or
(b) participate in that activity.
(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.
(4) But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or promoted,
(b) P 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, and
(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

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About alrich

Journalist and blogger on legal and financial/economics issues

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