Legal Actors:
Solicitors:
Professional Development Hierarchy: Trainee > Associate > Senior Associate > Salaried Partner > Equity Partner
Represented by the Law Society.
Regulated by the Solicitors Regulatory Authority.
Over 210,000 solicitors on roll, with about 155,000 practicing.
25% of all solicitors are employed by 0.6% of all law firms.
Types of Employment:
City
High Street
In-house
Government
Barristers:
Professional Development Hierarchy: Pupillage > Tenancy > Junior Council > Queen’s Council (Silk) > Judge
Barristers are experts in giving legal advice and advocacy.
Represented by the Bar Council.
Regulated by the Bar Standards Board.
Around 17,000 practicing barristers.
Types of Employment:
Chambers (around 80%)
In-house
It should be noted that it is especially important to get judicial diversity right for barristers as they will follow onto becoming judges. If barristers are not representative, the judiciary cannot be.
The Judiciary:
The vast majority of judges come through the barrister route.
Types of Judges:
(12) Justices of the Supreme Court
(38) Lord Justices of Appeal
(110) High Court Judges
(46) Masters and Registrars of the Supreme Court
(665) Circuit Judges
(1155) Recorders
(447) District and Deputy District Judges in County / High Court
(25,170) Justices of the Peace (Magistrates)
Criteria:
High Court Judges have to either have worked in the profession for 10 years, or have been a circuit judge for a minimum of 2 years.
Circuit Judges have to either have worked in the profession for 10 years, or have been a recorder or other specialised legal professional for a minimum of 3 years.
District Judges generally have to have 7 years practice.
Diversity:
Types of Diversity to Consider:
Gender
Sexual Orientation
Race
Ethnicity
Socio-economic Background
Geographical Location
Age
Religion
Disability
Importance of Diversity:
Fairness
Every applicant should have the equal opportunity to be appointed on their merit.
Representativeness
The judiciary should be representative of the people and community it serves.
Legitimacy (democratic or popular)
Effectiveness
A more diverse judiciary increases the quality of justice.
The Issue:
The senior judiciary is concerned with a lack of diversity. Lord Neuberger PSC pointed out that there is a large proportion of the judiciary that is ‘male, white, educated at public school, and from upper and middle classes.’ [1] This is obviously an issue as the justice being performed is based on the perspective of this type of person. A more diverse judiciary will produce more diverse judgements.
There are also issues relating to imposter syndrome for those from minority backgrounds. Currently, women are allowed into the judiciary so long as they adhere to the traditional conventions. This means that women judges feel as though they have to produce the same judgements as their male counterparts for fear of their qualification being questioned. This reinforces the ingrained belief that authority stems from conformity and prevents change.
‘Like Anderson’s mermaid, [the woman judge] is induced to sell her voice in order to walk on land (or enter the court room) with her prince; her dangerous siren call is silenced, and in the silence, difference is lost.’ [2]
Due to significant clustering, diversity issues increase in the higher ranks of the judiciary.
‘The legal profession should be proud of the gender and ethnic diversity of its students and new entrants: more than half of new solicitors are women and about a fifth are black and minority ethnic (BME) trainees. But diversity quickly evaporates in the upper echelons, resulting in 75% of partners in law firms still being men and only 5% being from BME backgrounds. The same is true at the bar, with roughly equal numbers of male and female practitioners being called to the bar, but the QC rank remaining dominated by 90% men.’ [3]
International Outlook:
There is greater gender equality within the judiciary on continental Europe.
Reform and Progress:
The Lammy Review focused on the mistrust that BAME people have against the justice system. [4] The report outlined that for the justice system to be trusted by the communities it serves, it must be representative.
Baroness Neuberger called for a ‘fundamental shift in approach’. [5] She opposed the use of quotas but encouraged the use of induction system for minorities into the profession.
Recently more senior members of the judiciary have been speaking out about issues related to diversity. For example, Lord Sumption recently commented that ‘racial identity or gender are not relevant to a candidate’s ability to do the job.’ [6]
New Appointment System:
The Judicial Appointments Commission was established in 2006 to appoint judges, who would be approved by the Lord Chancellor. [7] This provided for open competition, providing further transparency as to how the judiciary are selected.
Previously, the system was referred to as ‘tap on the shoulder’, which ultimately was biased. Now there is a statutory duty to appoint on merit and to encourage diversity.
Unresolved Issues with the new System:
It is still hard to discern between when someone has been selected because of who they know, rather than what they know.
Those with connections are still more likely to know how to succeed in selection.
Due to the innate biases within everyone, the system must be continually reviewed if it wants to prevent recruiters from selecting people similar to themselves.
Crime and Courts Act 2013:
There is now a statutory duty to apply a ‘tipping point’ in the favour of underrepresented groups where 2 candidates have equal merit. Therefore, the Lord Chief Justice has a duty to encourage judicial diversity. Issue arises as to assessment of merit.
‘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’ [8]
Judicial Diversity Forum:
Senior members of the judiciary hold a twice-yearly meeting to discuss and provide direction on the issue of diversity within their professional field.
Issues about the Rate of Change:
There are competing arguments about whether the rate of change is sufficient. To speed up the diversity within the judiciary, quotas or positive discrimination schemes may need to be implemented, both of which are controversial in their own right.
‘Jonathan Sumption a supreme court judge who was one of the country’s best-paid and most celebrated barristers, suggested it could take 50 years to achieve gender equality within the senior judiciary, arguing that in historical terms this was “a very short time”’ [9]
‘There will inevitably be six vacancies on the supreme court between September 2016 and December 2018. If we do not manage to achieve a much more diverse court in the process of filling them, we ought to be ashamed of ourselves.’ [10]
Opposing Arguments [11]:
Rapid change to improve diversity would require positive discrimination or quotas. Both are undesirable as it discounts the requirement that judges are appointed on merit. If these measures were implemented, quantity would be put above quality simply to make a profession look more diverse.
Outstanding candidates would be less likely to apply to be a judge is they believe that they wouldn’t be selected because there was a minority applicant with lesser experience. They would look elsewhere, diluting the prestige of the judiciary.
Those who are selected because of their ethnicity may feel imposter syndrome, since it may seem as though they have only been selected to fill a quota.
Judges are expected to rule fairly, irrespective of whether they have experience related to that of the present case. Cases are not currently given to judges who have relevant personal experience and yet judges can still provide fair outcomes. Therefore, judicial diversity is not as necessary as it seems to uphold justice.
A question arises as to how far diversity should go within unique subgroups of minority groups. For example, whether the term 'black' should be split up into Caribbean, African etc.
Arguments for diversity are influenced by the belief that the judiciary is loyal to class, gender, race or other factors like social conditioning. Further research would be required in order to find out whether this hypothesis is true.
It is unrealistic to expect that the judiciary could ever be perfectly representative.
It is a better, though impure, compromise to accept that judicial diversity will take time.
Resources:
References:
[1] JUSTICE, Increasing Judicial Diversity (2017) [2] Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity (Routledge 2013) 137-8 [3] Crispin Passmore ‘The case for diversity: legal profession's white, male legacy persists’ The Guardian (13th October 2010) [4] David Lammy, The Lammy Review - Final Report (2017) [5] Ministry of Justice, Report of ‘The Advisory Panel on Judicial Diversity’ (2010) (Baroness Neuberger) [6] Jonathan Sumption, Law in a Time of Crisis (Profile, 2021) [7] Constitutional Reform Act (2005) [8] Constitution Select Committee (2012) (Baroness Jay) [9] ‘Don’t rush gender equality in UK judiciary, says supreme court judge’ The Guardian (22nd September 2015) [10] ‘Lady Hale: supreme court should be ashamed if diversity does not improve’ The Guardian (6th November 2015) [11] Jonathan Sumption, Law in a Time of Crisis (Profile, 2021)
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