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At the Lord Chief Justice's press conference on 27th September, Owen Bowcott of The Guardian asked Lord Judge about his views on the issue of the diversity of the judiciary in the UK. In a recent survey by the Council of Europe, it was suggested that we have one of the least diverse judiciaries in Europe coming just above the likes of Azerbaijan. Lord Judge refuted that suggestion by saying that he did not think the survey took into account the lay magistracy in the UK and levels of diversity seen there. He continued developing this theme by saying that ultimately the only decision that should be taken about whether someone becomes a judge is merit. He went on to say that he thought that women and minority candidates would feel insulted if they were made judges just to fill some sort of quota.
I agree that elevation to the bench should be merit based but I would suggest that the talent pool currently being pulled upon is increasingly self-selecting. Lord Judge himself admitted that only 11% of QCs are women, which severely restricts the number of women that can reach the judiciary. However what was not questioned was the fact that members of the bench are assumed to HAVE to be QCs or other senior members of the practicing profession before they can become judges.
I was lucky enough to hear Baroness Hale give a speech at the Society of Legal Scholars conference in Bristol on just this issue. As the only woman on the Supreme Court bench she expressed some forthright views on the make-up of the judiciary and the unconscious attitudes that pervade it.
She suggested that perhaps we should be looking further afield for our judiciary and question why the only accepted route seems to be via the Bar, becoming a QC, sitting on the High Court bench before moving to the Court of Appeal and so on. Baroness Hale made reference to the latest recruit to the US Supreme Court, Elena Kagan, whose background is very strongly academic, having previously been Dean of Harvard School before becoming the 45th Solicitor General and joining the Supreme Court in August 2010. Baroness Hale went on to say that the 11% of QCs who are women and the number of minority candidates for judicial office may in fact decline over the coming years because of the increasing problems of social mobility within the professions.
So if the current pool of talent that one can draw the judiciary from does not contain as many women and minority candidates as the Lord Chief Justice himself admits it should and the criteria for joining is ‘merit based’ then change the make-up of the talent pool. Look for people within the law who have the knowledge, skills and attributes to be a successful judge but who may sit outside the very narrow confines of the Bar and the traditional route to the top of the judiciary.
Baroness Hale suggested that like the US we should look to academic law as a starting point to increase diversity on the Bench and I think that it is a suggestion that should be seriously considered. If we do not then we face a real issue that the Supreme Court could be even less diverse in the future than it is now.
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