Does Judicial Diversity Matter?

We are grateful to Amany for this piece, who is a YLAL member and currently undertaking work experience to save up for her upcoming Bar course.

On 17 September 2020, the Ministry of Justice published its most recent statistics on the diversity of the judiciary. The findings are unambiguous and dispiriting; our judiciary is predominantly white, male and middle class.

The lack of diversity in our judiciary has been contentious for decades. Annually, the Ministry of Justice broaches the idea of new initiatives to ameliorate judicial diversity; yet, nominal progress has been made. In 2020, despite progress in civil liberties and human rights, those in high office, tasked with upholding the rule of law and applying it to our daily lives, remain unrepresentative of the flourishingly diverse population in England and Wales.

101 years after the enactment of the Sex Disqualification (Removal) Act 1919 authorising women to enter the legal profession, gender parity has still not been achieved.

People who identify as women represent less than a third of all judges. The higher the court, the fewer there are.

Less than three out of 10 judges in the High Court or above identify as female (26%); despite the fact that women form 51% of the total population in England and Wales and comprise 69% of law graduates.

Last year, Lady Hale, the first female Justice of the Supreme Court and former President, estimated that gender parity should occur by 2033; 114 years after the Sex Disqualification (Removal) Act 1919. For a world-renowned force of democracy, that is pretty incredible.

This year, empowered by the Black Lives Matter movement, scores of individuals from ethnic minorities have begun to share their experiences of institutional racism and discrimination. As a result, racial diversity in the judiciary is in the spotlight and in England and Wales the picture is dismal.

A mere 8% of our judges identify as non-white and the higher the court, the whiter the judges:

  • Only 4% of judges in the High Court and above identify as being from an ethnic minority.
  • Of the 108 judges in the High Court, only 13 identify as being from an ethnic minority.
  • Of the 38 Court of Appeal judges, one identifies as being from an ethnic minority.
  • Not a single judge in the Supreme Court identifies as being non-white.

There are disparities in appointment even within the Black, Asian and minority ethnic (‘BAME’) community; a mere 1% of judges identify as Black. These findings expose how inordinately underrepresented the BAME community is within our courts, as BAME individuals form at least 14% of the population in England and Wales and 40% of law graduates. In contrast, BAME individuals are disproportionately over-represented in prisons, forming 25% of the adult prison population and over 40% of young people in custody, according to the Lammy Review.

This racial imbalance directly affects BAME legal practitioners. Last month, Alexandra Wilson, a Black female barrister and author, reported being mistaken for a criminal defendant in the magistrates courts three times in one working day, from being stopped by the security guard at the court’s entrance to loudly being asked by the clerk and barristers, who happened to be white, whether she was represented.

In the same month, a white male barrister was fined £750 by a disciplinary tribunal after he commented that a female and Asian judge only gained her position as a result of positive discrimination.

Our judiciary is not only predominantly white and male, but also blisteringly privileged, with three in four existing senior judges having attended Oxbridge and 60% being privately-educated, in contrast to 7% of the population.

This staggering lack of diversity has wide-ranging adverse consequences and reflects a much wider problem; the ruling class in the UK still does not represent the people it serves.

Why judicial diversity matters

A diverse judiciary is inherent to a healthy democracy, and the reasons for this are multi-fold.

The judiciary is one of the three constitutional pillars of our democracy, along with the legislature and executive and is trusted with power. Although not unrestricted, the judiciary has the power to determine vitally important matters in a person’s life; the removal of children, eviction from home, deprivation of liberty, access to education and employment, immigration status, criminal sentencing, welfare benefits – in short, most of the things that are central to a person’s life and liberty. For that reason, the judiciary is one of the professions where diversity matters the most.

A representative bench is one that reflects the population it serves in order to understand the lives of the people it hears and the lives upon which it rules.

An unrepresentative judiciary fundamentally undermines trust in the justice system, especially where there is any suggestion of discrimination, sexism and racism.

How does a woman who suffers rape feel when a male judge decides how she should have reacted during the offence, in his opinion, for it to constitute rape?

For every 100 white women sentenced to jail terms for drug offences, 227 BAME women are imprisoned. The odds of a prison sentence for BAME individuals are 240% higher than for their white counterparts. Again, how do they feel when the sentence is imposed by a white male judge? How can any individual from an under-represented group feel confident bringing a claim or coming forward with evidence in circumstances such as this?

The lack of diversity among our judiciary deters individuals from under-represented groups from participating in the justice system, negatively affecting the administration of justice.

Decisions impugned by bias, conscious or unconscious, could be avoided with a representative and diverse judiciary which is kept accountable by its colleagues; where discrimination, sexism and racism is challenged, and where jurisprudence is inspired by a greater variety of thought and lived experience.

At its core, there should be a proportionate promotion of under-represented judges to the senior courts. As interviews with members of the judiciary have shown, female and BAME judges admit to being harsher in their decision-making in order to avoid any perception by the senior
judiciary, who is predominantly white and male, that their decisions are too lenient on appeal.

So, what now?

The lack of judicial diversity affects the credibility of our justice system which leads to a trust deficit between all citizens and the State. It is time for the Ministry of Justice to endorse meaningful and effective measures for change; whether through ‘targets with teeth’ as recommended by JUSTICE; or time-limited quotas as recommended by David Lammy MP, now Shadow Secretary of State for Justice, and Baroness Shami Chakrabarti, then Shadow Attorney General, at the 2019 Labour Party Conference fringe event on diversity in the law.

Endorsing such measures would demonstrate the Ministry of Justice’s bona fide commitment to judicial diversity and would buttress meaningful, lasting change. Their adoption seems unlikely, however; the Lord Chief Justice heralded that targets and quotas, ‘are not compatible with appointment on merit nor, ultimately, in sustaining public confidence in the judiciary.’

A lack of diversity erodes public confidence in the judiciary. And, as far as ‘merit’ is concerned, the JAC currently appraises a candidate’s advocacy skills which favours QCs, who are most likely to be white, male and middle class; a mere 17% of QCs are women and 9% are BAME. One possible cause of this disparity is that barristers from these backgrounds may not get the type of work from solicitors and their clerks that they would need to seek promotion. In other words, the ‘merit’ criteria are in practice a proxy, conscious or unconscious, for the selection of white, male, middle class applicants.

In this context, would affirmative action be anathema? As Lady Hale pointed out, one such quota already operates in the Supreme Court for Scottish and Northern Irish judges. And affirmative action works, as shown by the Labour’s all-women shortlists for the selection of parliamentary candidates during the 2017 election and the Church of England’s decision to promote female bishops to the House of Lords before male bishops for a period of 10 years. It would not be shattering to take such measures in our courts as well, and to acknowledge the importance and value of diversity.