The Report includes statistics showing that in 2011 only 5.1% of judges were Black Asian and Minority Ethnic (BAME) and just 22.3% were women. The Committee stressed that diversity incorporates a number of other elements including disability, sexual orientation, legal profession and social background and rejected any notion that those from under-represented groups are less worthy candidates or that a more diverse judiciary would undermine the quality of our judges.
The Committee set out a number of recommendations to improve diversity. These include:
• The Lord Chancellor and Lord Chief Justice should have a duty to encourage diversity amongst the judiciary as the Judicial Appointments Committee (JAC) does currently.
• While appointment based on merit is vital and should continue, the Committee supports the application of section 159 of the Equalities Act 2010 to judicial appointments. This would allow the desire to encourage diversity to be a relevant factor where two candidates are found to be of equal merit.
• Opportunities for flexible working and the taking of career breaks within the judiciary should be made more widely available to encourage applications from women and others with caring responsibilities.
• There needs to be a greater commitment on the part of the Government, the judiciary and the legal professions to encourage applications for the judiciary from lawyers other than barristers. Being a good barrister is not necessarily the same thing as being a good judge.
• While the Committee does not currently support the introduction of targets for the number of BAME and women judges, it says this should be looked at again in five years if significant progress has not been made.
The Committee also stresses the importance of the independence of the judiciary and believes that the Lord Chancellor’s role in individual appointments should be limited. It says that his power to reject nominations for posts below the High Court should be transferred to the Lord Chief Justice.
In order to ensure judges continue to have appropriate independence from Parliament, the Committee says that judicial candidates should not be subject to US-style pre or post-appointment parliamentary hearings. Political considerations would undoubtedly influence both the parliamentarians chosen to sit on the panels and the questions put to candidates.
The Committee suggests that a system of formal appraisals should be introduced for judges. They point out this is now common practice in business, the professions and the civil service and would be of benefit to judges, as well as helping to assure the public that the judiciary is of the highest possible quality.
The Committee also recommends that the retirement age for the most senior judges, those in the Court of Appeal and the Supreme Court, should be raised to 75. This would prevent a loss of talent in the highest courts whilst allowing more time for women and others who have not followed a traditional career path to reach the highest levels of the judiciary. The retirement age for all other judges should continue to be 70.
An embargoed YouTube video of Baroness Jay, Chairman of the Committee, discussing the report can be found online here.
Commenting on the report Baroness Jay, said:
“It is vital that the public have confidence in our judiciary. One aspect of ensuring that confidence is a more diverse judiciary that more fully reflects the wider population. That even by 2011 only 5% of judges were from minority groups and only 22% were women suggest there is still work to be done in this area.
“It is important that judges are appointed on merit but the Committee felt there are steps that could be taken to promote diversity without undermining that principle. Requiring the Lord Chancellor and Lord Chief Justice to encourage diversity and supporting flexible working within the judiciary would be a good start. It is also important that solicitors, who are a more representative group of society than barristers, do not face any impediments to a career in the judiciary.
“We also looked at the important principle of judicial independence from political interference. Here the Committee felt that neither the Lord Chancellor nor Parliament should be given enhanced powers to decide who becomes a judge. The respective roles of politicians and judges are distinct and it is important they are kept separate. The Constitutional Reform Act 2005 created an open, transparent and independent appointments process. As the Constitution Committee, we believe that the independence of the process should be preserved.”