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Independence, accountability and diversity…too much to ask?

As a report from the House of Lords constitution committee reiterated, the judiciary lacks diversity. This may not have been an unexpected announcement for those in the legal profession; however for the general public it is a unanimous desire for judges to be more representative of society. Peers said that only one in 20 judges is non-white and fewer than one in four is female, and this disparity is undermining the public’s confidence in the courts.

Seemingly, an appropriate process of appointment requires a rebalancing between the three main constitutional principles; independence, accountability and diversity. The effects of establishing such a process would expectedly result in the enhancement of democratic legitimacy of the entire system, as well as the authority of the judges and their eminent role in society.

Is it too far to propose that there is a diversity deficit in the senior judiciary? Diversity in senior judicial appointments is not simply a desirable goal, but a fundamental constitutional principle. At the very heart of the legitimacy of an independent judiciary are its claims to be able to deliver ‘fairness’. Therefore, a senior judiciary whose composition indicates an apparent lack of fairness runs the real risk of damaging its own authority.

Although, it may not be as perceptible, diversity also directly impacts on the substantive delivery of justice. Judicial decisions are unavoidably influenced by judicial background and perspective, particularly in relation to the arguable points of law before the highest courts. The law of the land constitutes the collective moral code of society. A key aspect of the competence of the Supreme Court, as a collective decision-making body, is that it should be imbued with (and be able to relate to) the broad array of perspectives and experiences that contribute to our society. Therefore, the institutional competence or ‘merit’ of such a court is significantly weakened if this is not the case. Nevertheless, in reality what we have is a Supreme Court whose membership description leaves it liable to accusations of elitism. Ten out of eleven justices attended either Oxford or Cambridge, ten out of eleven are men and the justices are all in between the ages of 55-74. Did any one just call out homogeneous…?

In the UK, the appointment of a Supreme Court judge requires the direct input of up to 26 individuals, 21 of whom are judges themselves. As a consequence, it does not seem unreasonable to fear the potential that this branch of government could become a “self-perpetuating oligarchy.”

If only we could follow Canada’s example…  By contrast, the country has achieved a more representative judiciary by redefining merit. It has parliamentary hearings in which judges are questioned about their judicial philosophy, but only after they have already been selected for appointment.

By recognizing such methods that have been introduced in other jurisdictions to enhance judicial accountability (while preserving judicial independence) and improve judicial diversity, will perhaps reconcile the departure of the senior judiciary and the public. As Tom Legg, former Permanent secretary of the Lord Chancellor’s department, declares, “Who our judges are, and how they are selected, is a public matter and fully justifies public interest and debate.” In order to resolve this suggested democratic deficit, perhaps a shift should be considered, from the present system of ad hoc appointing commissions with a predominating judicial influence towards a more enduring, expanded senior judicial appointments commission, with a balanced input from the senior judiciary, cross-party parliamentarians and lay members. This would be designed to enhance legitimacy without allowing any group a disproportionate sway.

Included in Monday’s report was the proverbial definition of merit, the sole criterion for judicial appointment. Lawyers have interpreted this to mean that appointments should go to the cleverest candidate, effectively the best or most brilliant lawyer available.

Although it could be argued that this encourages selectors to choose people in their own image, which are generally white males from similar educational backgrounds. Wouldn’t it be more congruous if each post should go to the candidate who would be of greatest benefit to the judiciary, thus the people?

Merit, the committee says, should be the sole criterion, for selecting judges. However, we do not consider that the concept of merit should be narrowly focused on intellectual rigor. After all they are not our doctors; we want a judiciary who will serve the country with upmost justice; ergo serveral factors should be included in the criteria, as this duty requires more than acquity. Something that a number of us would agree with…

Lord Justice Etherton accurately identifies, “the key to resolving these issues lies in a much more intense focus on the appointments process for the higher courts in order to provide constitutional legitimacy for them within a democratic society”. Hence, it is important to stress that what is being analysed and at times criticised is the constitutional system as entirely divorced from the high calibre individuals presently involved in that system.

There is doubt casted on the so-called tie-breaker provision in the Equality Act 2010, which allows a candidate from an under-represented minority to be selected when that candidate and another are of equal merit. Since the new appointments system was introduced more than five years ago, selectors have never found two candidates of equal merit. The report recommends that the most senior judicial appointments should be made by a panel of nine people — three senior judges, three parliamentary members and three lay people, one of whom would chair the panel. This would preserve judicial involvement and add democratic legitimacy without allowing one section of interests to dominate.

The committee, chaired by Baroness Jay, believes that change is needed to combat the perception that “the judge inhabiting a courtroom in England and Wales is stereotypically a white male from a narrow social background”.

There has been progress: in 1998, 10.3% of judges were women, and 1.6% from black, Asian and minority ethnic (Bame) backgrounds; by 2011 the figures had increased to 22.3% and 5.1% respectively.

Quite evidently, it has not been a substantial improvement, “The slow rate of change is not only a problem for those whose careers are affected; it is a problem for society as a whole,” the committee notes. A more comprehensive judiciary would not undermine the quality of our judges, and would increase public trust and confidence in the judiciary.

In addition, perhaps setting targets to appoint more judges from among women and members of the ethnic minorities should be considered if the judiciary does not make itself more diverse within the next five years, peers recommend.

Unexpectedly, the report recommends that the retirement age for the most senior judges, those in the court of appeal and the Supreme Court, should be raised to 75. Accordingly, this would “prevent a loss of talent in the highest courts whilst allowing more time for women and others who have not followed a traditional career path to reach the highest levels,” it says. Retirement for all other judges should continue to be 70.

So what next?…Requiring the Lord Chancellor and Lord Chief Justice to encourage diversity and supporting flexible working within the judiciary would be a good start.

Ministers are well aware that the new system for judicial appointments introduced by the Constitutional Reform Act 2005 has failed to change the face of the judiciary.

Indeed, by removing the flexibility inherent in the wide discretion formerly exercised by the Lord Chancellor, the reforms have actually made diversity harder to achieve.

Wider reading:

http://www.guardian.co.uk/law/2012/mar/26/report-judicial-appointments-not-fit

 

Deanna Phillips

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