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Will We Ever Have an Entirely Representative Judiciary?

Will We Ever Have an Entirely Representative Judiciary?

“In an ideal world, a diverse judiciary would consist of dimensions of race, ethnicity, gender, age and sexual orientation among other ideologies…”

The judiciary play a central role under the British Constitution; they are responsible for everything from determination of legal disputes to decisions such as punishments and remedies individuals receive. Under the rule of law judges, they are expected to deliver judgments in a completely impartial manner, applying the law strictly without any personal reference. This issue is a judiciary composed of predominately senior white male citizens which makes it highly unlikely that they can relate to contemporary standards or understand present-day concerns within society.

Judicial appointments were formerly referred to as a ‘tap on the shoulder’ from the Lord Chancellor; also known as ‘secret soundings’. There was no objective criteria for appointment, plainly showing this bureaucratic procedure lacks transparency which could evidently explain why there is such a lack of diversity in the judiciary. In 2003 the Labour government published a consultation paper to tackle these problems with judicial appointment over concerns that the system was losing public confidence.

The Constitutional Reform Act 2005 established the independent body of the Judicial Appointment Committee (JAC) now responsible for recruiting judges also reinforcing the status of the separation of powers within the UK. Section 64 provides the JAC must have regard to the need to encourage diversity in the range of persons available for appointment. This initiative was to restore the public’s confidence that future judiciaries will become more diverse and in touch with ordinary people’s lives, which will surely produce more just results that will be valid to the total population.

Traditionally judges come primarily from the Bar, a profession itself dominated by white men from privileged social backgrounds. Consequently, few judges from under-represented groups were appointed thirty or forty years ago. That could be explained largely by reasons which were not specific to the judicial appointments process, such as lack of educational opportunities, discriminatory work practices and formal barriers to entering the legal profession.

Research by Sutton Trust in 2003 revealed the extent to which the top barrister’s and judges backgrounds differ from the general population: 66% of ‘top’ barristers had attended private schooling and 81% of judges had studied at Oxbridge universities. This shows that judges are overwhelmingly from the same homogeneous background of an upper class origin. The extent to which judicial attitudes can be related to the social background of the judge is a large and debatable question, especially one might argue the influence of their political background: right-wing conservative politics (see Bromley London Borough Council v Greater London Council).

Critical legal theorist David Kairys stated judges make decisions based on their social and political background and their own beliefs and prejudices lead to why they make the decision . It is hard to believe any judge will be absolutely impartial, however, diversity in the judiciary would enable a variety of these backgrounds and beliefs to intervene with the end result coming to a less biased decision.

Major socio-economic changes over the last half century has led to far more people coming into contact with the civil justice system. The expansion and diversification of higher education with the help of government proposals such as student finance, which enables the likes of working class the opportunity to study a degree. It was assumed that due to the variety of undergraduates studying law, and later practising law would lead to diversification at the top levels of law (the judiciary) this process is known as the trickle up theory – i.e., the theory that diversification of the holders of entry level positions will, over time, result in the diversification of positions further up the hierarchy. This is yet to occur.

“It is plausible to believe that attitudes of successive generations will change – men and women share decision making equally…”

Statistics from 2012 show overall women and ethnic minorities make up 26.2% of the judiciary as a whole compared to the judge statistics in Canada where 47.3% of judges are women . Women and minorities are found clustered at the base of the occupational pyramid, and fail to ‘progress’ up the hierarchy at the same rate as their male counterparts. This phenomenon will inevitably be reproduced in the judiciary, unless direct measures are taken to increase judicial diversity above entry level.

The Equal Opportunities Commission warned it would take 40 years to achieve equality in the judiciary. Since there is no evidence that women are lesser quality than their male counterparts, why is it not equal across the judiciary now? It may be argued that no government proposals will be able to add diversity to the judiciary due to the pessimistic views of individuals that become reluctant to pursue a career, on the point that the profession has created a market monopoly by claiming the need for a unique form of knowledge and ethics thereby excluding outsiders.

On the other hand an optimistic view could be taken, this is that Lord Lanes ‘trickle up’ theory has yet to materialize: given that socio-economic changes have only just began to occur.

The Crime and Courts Act 2013 states that if two candidates are of equal merit (quality of being good or worthy), the JAC should appoint the candidate that will bring diversity e.g the women. Merit only arises in conversation when there is talk of changing pool from which the judiciary is appointed. This could be linked to traditional views of men working while women staying at home and having difficulty being known as authority makers. ‘Merit has been masculinised … so as to militate against the acceptance of women judges’.

Obviously for equality to not be entrenched in the judiciary, women acting as judges will have to increase. It is commonly accepted that nowadays men and women are equals, ergo there is no need for government legislation to be proposed. It is plausible to believe that attitudes of successive generations will change – men and women share decision making equally – it will be entrenched into our political culture and with time within the judiciary . Together this would enable the law to be interpreted with a wide range of comprehensive viewpoints increasing the validity of judgements hence making the law more applicable furthermore offering a greater reflection of law upon society.

In an ideal world, a diverse judiciary would consist of dimensions of race, ethnicity, gender, age and sexual orientation among other ideologies: ‘A more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself.’ Overall, law is a major force in generating, conserving and legitimizing social arrangements ergo the judiciary is one of the most important institutions in society. If judges are ‘unrepresentative’ they are not reflecting in a descriptive sense the population. Recruitment must be open to all talent and allow merit to be constructed in such a way that reproduces archaic class privilege and cultural stereotype.

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