Judicial diversity: Lords call for positive discrimination and targets

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.

Ken Clarke gets his Henry VIII clause into judicial appointments

We need to talk about Ken – in particular the UK Lord Chancellor, Kenneth Clarke’s dangerous delusion that he has – or should have – Henry the Eighth powers.

As it happens, Clarke would make a rather good Henry VIII. Imagine Good King Hal as a bluff genial figure in the Carry On Henry mould, like the cigar-chomping Sid James, or perhaps with a bit of edge to him, something a little more like the Charles Laughton version – jovial but ruthlessness. Imagine, too, a man who by his proclamations can sweep away whole areas of constitutional law.

For this is what Clarke intends in his (as yet putative) Constitutional Reform (Reform) Act 2012 – the Act he is working up to “reform” the 2005 Constitutional Reform Act. This, for the first time in our history, enshrined separation of powers in our constitution – that the judiciary should be independent from the Executive and from Parliament.

Ken Clarke’s piratical band hijacks judicial appointments inquiry

What, it must now be asked, is the point of the House of Lords Constitution Committee hearings on judicial appointments?

The committee set out in fair weather in the summer on a stately voyage to explore the waters of the British constitution with the aim of balancing accountability, independence, transparency and the need to foster diversity in judicial appointments.

Meanwhile the oily-fingered engineers in the dark recesses of the Ministry of Justice, headed by the Lord Chancellor, Kenneth Clarke, were constructing a less majestic vessel which they launched as a public consultation document last week – Appointments and Diversity: A Judiciary for the 21st Century.

This seems not only to have taken the wind out of the Lords committee’s sails but to have hijacked the process altogether, with some pretty clear plans – among them proposals to bring a political role back into judicial appointments. Cap’n Ken and his piratical crew are steering the debate, full steam ahead, into waters very much of their choosing.