The debate surrounding the diversity of lawyers and judges within the legal profession has been circling the profession for a number of years. One of the less commonly debated strands is whether the credentials for becoming a judge at all levels are above those of Magistrates. With many courts around the world not having the requirement of a judge to have practiced as a lawyer beforehand, one looks to the English legal system and whether something similar could be implemented.
The English legal system is built so that those who practice law are the ones who will form the future judiciary. The debate, as mentioned earlier, has not gathered a lot of support. Recently, Lord Neuberger said that the legal profession can look to academics to become judges. This was, however, in the context of gaining more women into the profession as there are more women in academia than practicing. The nearest the UK has to a judge who is an academic is Baroness Hale, who was an academic and then practiced as a barrister before rising through the ranks of the judiciary. If we were to seriously act on Lord Neuberger’s suggestion, then we could see more academics entering the judiciary. Whilst he spoke in relation to the lack of women in the profession, the same logic can be applied to having academics becoming judges.
When looking at the German Federal Constitutional Court (Bundesverfassungsgericht), the law sets out that a judge of the court must be a well trained jurist. It is, however, fairly common in Germany for their judges to have academic credentials as well as having been a jurist. In regional courts, e.g. the Berlin Constitutional Court, it is commonplace for a judge to also hold a position as a professor at a university. In this scenario, the judge actively lectures as a professor at the university. There is a difference in Germany compared to England, which is that upon completion of an equivalent law degree, students can qualify as lawyers after taking the State Exam. If they wish to go further, they can take further examinations and qualify as a judge.
The pinnacle example of academics entering judiciary in recent years takes us to the United States Supreme Court. It might be indicative of what Lord Neuberger mentioned about increasing women in the judiciary by drawing from academics, as in 2010 a new Associate Justice of the Court entered to take her position on the bench. Elena Kagan, the third woman on the Court, never practiced as a lawyer or a judge before entering the most important court in America. Naturally, this caused somewhat of a controversy and was heavily picked up on when she was grilled by the Senate Committee on the Judiciary. Kagan is the first justice to have been appointed without a judicial background since William Rehnquist was appointed in 1972. What made Kagan a good candidate was not only her academic background, but also her role as Solicitor General under Obama, arguing cases before the court on behalf of the government. What is evident, however, is that her lack of judicial experience was not necessarily a barrier to her becoming an Associate Justice, as she was successfully voted in as a justice.
The fact that Elena Kagan had worked as Solicitor General now turns this article to a different strand of thought. Might it not be the case that if the UK were to alter its rules to allow those from an academic background to become judges, they should have the status of a qualified lawyer? Before drawing on that question, the idea of lawyer to judge versus academic to judge should be considered. If one practices as a lawyer then one is regularly dealing with the practicality of the law and on appeals, focussing on drafting submissions, application of the law and argument. If one comes from academia, then they are expert in their fields as they research their specialism daily. This is not to say that lawyers cannot be experts, as indeed many are experts in their practice area. Academia brings a different element to decision making but they do lack the lawyer background. This is why I then question whether it would be a requirement to have completed the LPC or BPTC. The difficulty here is deciding which one, and if someone has the LPC, would they then be required to gain higher rights of audience before becoming a judge? Having an academic who has a background as a qualified lawyer (even if they did not practice) would at least give them the skills that lawyers require in order for them to deal with the law. If we look at Kagan’s position, there has not been any fundamental criticism of her work as an Associate Justice and not having a judicial background. It is evident that if one takes the line of academics should become judges, then there are a whole heap of reasons as to why this should happen as well as why it should not happen. It may not be a case that lawyers becoming judges have an edge over academics becoming judges, or vice versa.
What is clear is that until this debate gains more momentum, we are unlikely to see any change in who becomes a judge. Retaining the current route that we have at the moment is advisable and if academics are included, then it might be preferable for them to have at least the qualification of a lawyer. This debate could look further at the American or German system of people qualifying as judges having completed their law degrees and any other obligatory further qualification. If Lord Neuberger does want to increase diversity in the profession this way, then he will probably find a whole heap of men and women wanting to join. No doubt there will be criticism if this approach were to be implemented. However, it may not actually be such a bad idea when it comes down to whether judges without a legal practice background can offer the same standard of justice as their counterparts.