The Lord Chief Justice (LCJ) is frank about the fact that there is a problem with the judiciary. It is not acceptable that we have a judiciary which does not reflect the community which it serves, he says. This concern lay behind the recent judicial diversity conference, the brainchild of Mrs Justice Dobbs, organised by the LCJ and hosted in March by Clifford Chance LLP. Attendance at the conference, “A Judiciary for the 21st Century”, was by invitation only from the LCJ, and delegates included diversity consultants, judges, legal practitioners and representatives from interest groups.
The LCJ must be right. The powers entrusted to the senior judiciary, for example in relation to legislation and declarations of incompatibility pursuant to the Human Rights Act 1998, invest those positions with particular constitutional importance. To put it bluntly, the judiciary, and the senior judiciary in particular, are not sufficiently like modern Britain, and this undermines public confidence in the legal system.
The LCJ regards this issue as “mission critical”. So the aspiration is there, but the means of achieving it are less clear. One suggestion at the conference, borrowed from other jurisdictions such as The Netherlands, was the introduction of dedicated full-time training schools or colleges for judges, as an alternative to qualifying as a barrister or solicitor. Other ideas included formal mentoring schemes, increasing work shadowing opportunities for potential candidates, encouraging solicitors’ firms to regard sitting as a judge as a form of pro bono work, making permanent judicial appointments more flexible — for example by increasing the availability of part-time positions and removing the obligation for High Court judges to divide their sitting time between London and the circuits — and continuing the drive to encourage people from under-represented groups to apply for judicial appointment. Others thought that the gap between where we are, and where we should be, is so large that radical measures such as quotas are needed to bridge it. The LCJ made it clear that he is firmly against the introduction of quotas. He would, though, as a matter of principle, accept the appointment of a non-white candidate over a white candidate where they were both of the same quality. This is of course in line with current Government thinking on this issue in the employment law context, as set out in the Equality Bill.
Mrs Justice Dobbs is part of a working party which will consider the views expressed in working groups and open forum sessions throughout the day and, following consultation, draw up a short to long term plan which will be presented to the Judicial Executive Board (JEB). The JEB comprises the most senior judges including the LCJ and the heads of divisions, and will make the decision as to the way forward. This is all positive, and welcome, but there is, inevitably, a fly in the ointment: the LCJ does not have a budget, and the tenor of his remarks at the conference made clear that there is likely to be little, if any, money available for this purpose. So much for a judges’ college.
The quota issue
Against this background, is the LCJ right to oppose quotas? I think so. A judge appointed pursuant to a quota would lack the authority of a judge appointed in open competition, replacing one flawed system — a judiciary which risks losing public confidence because it is not sufficiently like modern Britain — with another. Further, discrimination against individual applicants does not in my view become acceptable simply because it is state sanctioned and, arguably, for the greater good. And there are other problems. Quotas might be advantageous to women, who are significantly under-represented, particularly amongst the senior judiciary. But members of some smaller ethnic groups see a danger in the imposition of fixed quotas. In some cases, including senior judicial positions which tend to be occupied for many years, the quota for a particular group might be small. This would work against individuals from that group once the quota was filled.
So the current position seems to be this. It is now recognised at the highest level that we have a problem. We do not have a solution. But we are at least looking for one. v
Alison Padfield is a barrister at Devereux Chambers and a member of the Bar Council Equality and Diversity Committee. The views expressed in this article are her own.