Importance of a diverse judiciary and the recent measures in increasing judicial diversity

According to Wacks, Judges are the very personification of the law. Judiciary is one of the three main institutions of the government which has a vital constitutional role in which their main function is to decide on the cases fairly, interpret the legislation and give effect to it and develop the concept of judicial precedent through the judgments given. Since the judiciary involves decision making process it is particularly important for it to be independent. Lord Bingham in the case of A and ors v Secretary of State for Home Department stated that function of independent judges is universally recognized as a cardinal feature of the modern democratic state and a cornerstone of the rule of law. The judiciary should be institutionally independent and it has been traditionally ensured through measures such as protection against dismissal, immunity from suit, and reasonably generous pay.

Judicial impartiality is a fundamental component of justice. Judges must be able to decide on cases free from external influence and pressure even from the executive. If judges fail to satisfy this requirement then they should be disqualified not only when they were partial to one side ( real bias) but also when they appear to be partial from a reasonable observer’s view ( apparent bias). The test for apparent bias is objective as it was decided in the case of Magill v Porter. The test must be applied having regard to all the circumstances of the case. The judiciary does not possess democratic legitimacy since they are not elected but appointed. Therefore this legitimacy comes from public confidence in them. Selection process plays an important role in gaining the confidence of the public though the high standards of legal skills and corruption free element of the English judges have been praised by the rest of the world. Selection and appointment of the judges has been a critical issue. Until 1990, with the passing of Courts and Legal Services Act 1990, eligibility for most judicial appointments was limited to qualified barristers who had been in practice for a number of years believing that the experience as an advocate was the best preparation for judicial appointments. After CLSA 1990, the basic eligibility criteria were changed to rights of audience criteria was invalidated. New criteria were based on possession of a relevant qualification for a requisite period gaining legal experience which in hold of that qualification.

Before the Constitutional Reforms Act was introduced the judicial appointment procedure was totally different. Earlier the appointments were made by Lord Chancellor and there was no possibility of applying for the job. It was solely decided by the Lord Chancellor on the basis of secret soundings and then the specific person chosen will be invited to take up the appointment. This process was highly criticized on the basis that it lacked transparency with no advertising, no clear selection criteria or formal interviews. One such strong criticization was made by JUSTICE which was a campaigning organization including its strong recommendation included suggestion supporting increased diversity. These paved way for the establishment of an independent judicial appointments commission. In 2005 the Constitutional Reforms Act established the Judicial Appointments Commission (JAC). JAC had three statutory obligations named Selection solely on merit, appoint people of good character and have regard to the need to encourage diversity. Merit of the best qualified person was assessed on the basis of intellectual capacity, personal qualities, ability to deal fairly and other organizational skills. JAC took steps to encourage underrepresented groups in the judiciary to make applications. The underrepresented groups were women, black and minority ethnic (BAME), solicitors and candidates with disabilities.

The English courts are filled predominantly male and pale. The decision making has been improved and the legal procedures and the legal aids methods have been largely developed but diversity among the judiciary is an area that still needs to be developed in various aspects especially at the higher level of judiciary. One main argument for increasing diversity within the judiciary is the fact that it creates equal opportunities. All properly qualified people should be able to apply and selected solely on the basis of merits. Failure to appoint qualified candidates from under represented communities might tend to reflect direct or indirect discrimination influencing the process. Consideration of pure talent like in civil jurisdiction would definitely encourage more qualified candidates to apply irrespective of their background. According to Lady Hale, diversity in the judiciary is not going to change a decision upside down. A male or female, from the majority or minority ethnic group will decide a case based on its own merits and evidence but what matters is the quality of decision making. Different people from different backgrounds will have different perspective in looking at things and dealing with issues. This type of diversity will strengthen decision making process and make it fruitful. A mixture of differently assessing minds will add various individual aspects to the decision and that will lead to better representation that the judiciary serve.

When it comes to decision making the one main aspect to be considered is substantial fairness which should be given equal importance as procedural fairness. Combination of various ethnicities and groups of people would result in the increased public confidence and trust in further neutral judgments. Being suffering from democratic defecate it is vital that the public must have confidence in the work of the judges. As it was stated by Sir Terence Etherton, when eminent judges disagree about hard cases in areas which are ‘policy laden, or concern human rights or constitutional rights ‘, it is because their personal outlook, based on personal experience, influences their decision.

The JAC did not show much progress and an advisory panel on judicial diversity was established which came up with various recommendations stressing on the fact of coordinated approach. Then again House of Lords Constitution Committee came up with some strong recommendations. They are: senior judiciary should not sit on panels to select their successors, power to appoint judges below the High Court should be transferred from the Lord Chancellor to the Lord Chief Justice. Several of those recommendations were included in the Crime and Courts Act 2013. It can be concluded that the number of women appointed to judicial posts had significantly increased but the number of applications of candidates from BAME had been decreased, non-advocate professionals and other underrepresented groups did not show any significant improvements. The Crime and Courts Act 2013 amended the Constitutional Reforms Act 2005 such that, if there are two or more candidates for selection to judicial office, a candidate may be selected for a post by the JAC for the purpose of increasing judicial diversity. This is known as the Equal Merit Provision but this was highly criticized and disagreed by many including women and other minorities describing that the procedure would undermine their position as a judge. Some even doubt whether this could actually solve the issue because being exactly of equal merit which is a rare case.

Though several measures have been taken by the government and other governmental institutions, these measures have not provided sufficient progress in the diversity issue due to lack of experience or experience deficit. The suggested reason for lack of diversity is the possibility that there are insufficient women and minorities appropriately qualified to be appointed to senior judicial roles. As per Lord Sumption, without positive discrimination it would take a very long time for the English Judiciary to become more diverse. Another important reasoning given for the lack of judiciary is that the underrepresented groups are not attracted by the prospect of judicial appointment and therefore self-exclude or that they lack the confidence to apply. Research by Genn in 2008 concluded that some practitioners do not apply for judicial appointments because they do not have the temperament to be a judge. For some women, male dominated environment of the senior judiciary felt unwelcoming and off-putting. Selection bias can be pointed out as one reason due to self-replication. Selectors may tend to identify with and value characteristics that they recognize as similar to themselves. The concept of merit in action can be also described as another reason for less progress in increasing diversity in judiciary.

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