Will judicial diversity be a victim of COVID-19?

Amanda Pinto QC

A year ago, the judiciary was becoming more diverse, as the Judicial Diversity Statistics 2019 show, but the Ministry of Justice’s (MOJ) apparent commitment to genuine progress is at serious risk from COVID-19. Efforts to encourage and support the proper representation of society throughout the legal professions have gained momentum over the last few years and, in 2020, this was one of my goals. I wanted to keep turning the tanker of diversification and inclusion at the Bar for three reasons: to attract to and retain at the Bar the most talented, regardless of background or characteristics, to better serve the community we represent and to ensure a greater pool of diverse, excellent lawyers for the judiciary of the future. That way we improve access to justice, the excellence of the profession and the credibility of our judicial system.

The professions worked to encourage a broader spread of applicants to apply for judicial appointment, supported by the MOJ and Judicial Appointments Commission (JAC). This included encouraging those who could not see themselves reflected in the existing judiciary to gain pre-application insight, so that they were better prepared for the process, through the Pre-Application Judicial Education programme (PAJE). The Bar Council supports greater diversity and inclusion from pupillage and the fair allocation of work, through mentoring, to QC and judicial appointment. These programmes continue, despite the current, drastic cutbacks to all our work. In pre-COVID times (by which I mean before the government deliberately limited sitting days to save money), the MOJ relied heavily on part-time judges to keep tribunals and courts running. Once appointed, they were required to be available several weeks per year, providing experience to those who might seek a permanent position. Nonetheless, although tribunal judges are somewhat more diverse, women continue to make up less than a third of court judges and the figures for judges from different ethnic minority groups are woefully low, with black judges making up just 1%. Our members continue to perceive problems in the system of recruitment despite the JAC’s efforts. Recently, the number of applicants for judicial appointment from target groups – women, those from BAME backgrounds and solicitors – has increased significantly, but except for women, this did not lead to more appointments from these backgrounds. So, the group of those applying is becoming more diverse, but something is going wrong later down the line. This problem should be front of mind when considering the impact of judicial diversity initiatives. We have suggested ways to bring about positive change.

Some parts of the professions are on their knees due to years of cuts in the availability and level of publicly funded work, and now COVID-19 comes along. Now is not the time to bring about a volte face on the progress that has been achieved by making working conditions worse for barristers who might become excellent members of the judiciary. Rather than acknowledge that the problem of backlogs is an entirely predictable one due to under-funding, and correct the position by investing appropriately, the MOJ’s plan, insofar as it is discernible, is to make everyone work in court far longer hours, including weekends. How do people build sustainable careers on this basis? How does the MOJ or the judiciary suggest barristers with caring responsibilities continue at the Bar? What do they propose will be suitable adjustments for barristers from those ethnic groups who are more at risk from COVID-19? Because it is inevitably these people who will be the most negatively affected by these extended hours. The government’s COVID-19 response sweeps aside diversity issues on an ‘access to justice’ line for which we have yet to see cogent evidence. This strategy risks years of hard work to change the tide by the legal professional bodies. Our data shows that forcing through diversity-damaging plans will not work: a third of the Bar has been shielding/vulnerable/caring for those who have been shielding or are vulnerable, and a third have primary care of children, so simply will not be available to work extended hours. We have shared this warning with the government from the outset but had no response.

Lack of judicial diversity ultimately affects the credibility of our justice system. The solution needs an unswerving commitment from all: the legal professions, the JAC, the judiciary and the government. Diversity is not an optional extra which can be dispensed with when inconvenient. If progress is to be made, inclusion must be consistently woven into all decision-making in good, but also, in hard times.

The diversity of the pool from which judges are drawn needs to improve – that is why, even in the teeth of a pandemic, the Bar Council supplements our programmes supporting targeted groups to flourish. We are proud that our future leaders programme will be launched soon and that groups like the Black Barristers’ Network are endeavouring to improve the careers of their members. But those closely involved in the processes must also take responsibility for their part: the recruitment process, perceptions of bias and attractiveness of a judicial career, as well as opportunities for promotion once on the Bench. These must all be treated as integral parts of the puzzle to be solved. If access to justice really matters to this government, it should ensure that it does not jettison an inclusive and diverse cohort to become the judiciary of the future.

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Amanda Pinto QC

Amanda is Chair of the Bar. She is a silk at 33 Chancery Lane.