Opportunity knocks for UK's Supreme Court to become more diverse
This article by Stephen Clear, of 黑料不打烊 Law School,was originally published on . Read the
The UK judiciary has a long history of fairness, integrity and soundness of judgement 鈥� but not diversity.
In theory, the balance of judges鈥� ethnicity, gender and background should reflect society. Although there have been moves to in the profession, the vast majority are still , , , .
However, a rare opportunity for change has arisen in the Supreme Court.
Established in 2009, the Supreme Court is the final court of appeal in the UK. As the highest court, it considers final appeals on both civil and criminal issues referred to it. The rulings, by five judges, not only finalise the case at hand but also help going forward. Judges are given life tenure when appointed to the Supreme Court, and usually retire at 70 years old.
In 2016, Lord Toulson . Lord Neuberger, Supreme Court president, also announced that both he and Lord Clarke in 2017. In addition, Lords Mance, Hughes and Sumption will all reach retirement age in 2018. In the space of two years, at least half of the Supreme Court Justices will need replacing.
Few would now dispute the 鈥� but the question is should the Supreme Court now be trying to accelerate developments?
Diversity matters
The role of the judiciary is different to that of parliament or government: MPs who make the law represent society as elected officials. Judges, appointed on merit, are there to apply the law impartially. Personal characteristics should not matter, but in reality a mixture of backgrounds, ethnicities and genders are necessary to better equip the judiciary with the skills to adjudicate.
Of the , all are white, one is female, and only two were state schooled. None of them would be considered as having 鈥渄isadvantaged backgrounds鈥�.
If we accept that judicial talent is widely distributed among the population, then the under-representation of well-qualified women, black and minority ethnic (BAME), LGBT and disabled judges suggests that we are missing out on the best talent.
More widely across the judiciary, while there has been an , progress has been marginal, and largely within the lower courts. Only one in 20 judges are non-white, and . In the Court of Appeal, there is , and within the High Court.
Positive discrimination
In the future, the judiciary should be able to draw upon applicants with more varied backgrounds. The has changed: in 1964 there were only 2,500 barristers and 32,000 solicitors, compared to over 15,000 and 122,000 today.
Nevertheless we now need to proceed urgently with positive discrimination appointments, aiming for a minimum 40:60 gender ratio across the judiciary, .
Former Lord Chancellor also believed that the best way to diversify was to have positive discrimination, suggesting that underrepresented groups could be supported by, for example, having all-women shortlists, in a similar way to the House of Commons. His successor, . However, this presumes that all genders and ethnicities are given equal opportunities to succeed before they become eligible for judicial appointment. The 鈥� which Straw himself established 鈥� was also introduced for the very reason of limiting prejudice on the basis of the individual鈥檚 sex, ethnicity or background. On this basis, gender specific shortlists could be counter-intuitive.
Positive discrimination has been met with mixed reviews from current Supreme Court justices. Lord Sumption branded it patronising and called for an . To him, introducing criteria other than merit would result in a bench with fewer outstanding judges, and could put off talented candidates from applying.
Nonetheless, and have stated that the Supreme Court must now 鈥渓ead the way鈥� in diversifying the judiciary, and should not simply rely on lower courts to make changes. Consequently they have announced proposals for half-day where a wider variety of potential candidates are given the opportunity to sit in the Supreme Court with the current justices. Other suggestions include appointing someone part-time, and more widely advertising opportunities beyond just the Bar Council and Law Society.
Accelerating diversity
So what actually needs to change? Rather than looking at accelerating individuals to the Supreme Court earlier, it would be better to look at what mentoring and promotion opportunities exist for underrepresented groups to first progress to the High Court. This will allow these individuals to develop the qualities to be appointed based on merit alone, without the need for any positive discrimination or accelerated promotion strategies. But this would also need to extend beyond the legal profession, for example, into diversity of Oxbridge admissions.
One must also remember that matters which reach the Supreme Court relate to highly complex points of law. Their interpretations establish precedents for all lower courts to follow. Such responsibility should only fall on the most qualified and experienced.
However, when Lord Neuberger talks of the need to attract diverse candidates to the Supreme Court, he limits scope to draw upon those with senior judicial experience. The show the legal profession is slowly changing. But it will take time for a more diverse group to reach the pinnacle of a distinguished legal career and have sufficient experience for Supreme Court appointment.
It is not that the Supreme Court shouldn鈥檛 be concerned with diversity, but rather that the current wider composition of the judiciary is not yet ready to service an accelerated recruitment objective.
Publication date: 14 February 2017