“A judiciary which is more reflective of society will increase public confidence in the
often life-changing decisions being made in courts and tribunals. … Public confidence
also demands that good judges continue to be selected and so the principle of
appointment on merit must and will remain.” Christopher Stephens, Chairman of the
Judicial Appointments Commission (2011-)
Historically there has been a tension between the need for the judiciary to 'reflect'
society and the principle of appointment on merit, when it comes to appointing
women and members of other under-represented groups to the higher judicial posts in
England and Wales. How have academics and policy-makers sought to resolve this
tension? Do you think they have succeeded?
Since its establishment the judiciary has overwhelmingly consisted of elderly white males who
derive from upper class backgrounds1 leading to a reflection of underrepresentation of substantial
1
Catherine Elliot and Francis Quinn, English Legal System (17th edition, Pearson Education Ltd, 2016-17),168
1
, groups within society,. Consequently, this has put the judiciary under pressure to ensure they
comply with the rule of law so that public confidence is maintained and strengthened otherwise
social deference will disappear.2 On the other hand, appointing and identifying well-qualified
candidates who possess the “six qualities and abilities” 3 will also increase public confidence.
However, Britain is becoming more diverse where there are people from different backgrounds
entering the country and women are obtaining the best qualifications enabling them to enter the
profession, so the question that is raised is why is the judiciary not diverse? Even if the judiciary
reflects society, how effective would this be given that Black and Ethnic Minority (BME) are just
as the name suggests, they are of the severe minority.
In 2005, the Constitutional Reform Act (CRA) was enacted establishing the Judicial
appointments commission (JAC), where it states in s63 that “selection must be solely on merit”
and s64 states that “there must be some regard to encourage diversity in the range of persons
available for selection for appointments”. 4 Thus by taking diversity into consideration this widens
the pool of applicants where the judiciary is reflecting the whole community, and not a small
section of it5. However, the JAC is based on the undefined concept of merit as s64 is subject to
section 636 so appointments must be made upon merit where the best candidate is appointed.
Although part 5 of the Equality act (EA) 2010 states that if there are two candidates of equal
merit, it is advised to appoint the candidate who comes from an underrepresented background for
the purpose of increasing diversity. 7 Even though the chance of two candidates being rated of
equal merit is slim if not non-existent. 8 Therefore this implies that merit is the sole criterion when
it comes to appointment which explains why the judiciary isn’t diverse as merit is perceived more
to be found among white males then others. 9
Before the (JAC) was enacted, the responsibility of appointing judges was the job of the Lord
Chancellor. He supposedly used a process called the “tap on the shoulder” where applicants with
a similar background was appointed. Arguably, the “tap on the underrepresented shoulder” could
increase diversity by getting judges, lawyers and other insiders to identify, encourage and
persuade the most able lawyers from underrepresented groups to apply for judicial office which
would improve the quality of the pool for selection. 10 Although there is a danger that the
shoulders of lawyers who are, for example radical feminists or activists in the black lawyers
groups might less likely be tapped, whatever their potential as members of the judiciary. 11This
may be because of the “gender-based myths, biases, and stereotypes which are deeply embedded
in the attitudes of many male judges” leading to a potential violation of the Sex discrimination act
1974 and the EA 2010.12
2
Elliot and Quinn n(1)169
3
Sir Geoffrey Bindman QC and Karon Monaghan QC,“Judicial Diversity: Accelerating Change”, (2004),15
4
Constitutional Reform Act 2005 - http://www.legislation.gov.uk/ukpga/2005/4/pdfs/ukpga_20050004_en.pdf
29
5
Lady Hale, ‘Women in the Judiciary’, Fiona Woolf Lecture, (2014) -
https://www.supremecourt.uk/docs/speech-140627.pdf, 4
6
CRA n(6)
7
Crime and Courts act 2013 http://www.legislation.gov.uk/ukpga/2013/22/pdfs/ukpga_20130022_en.pdf 236
8
Bindman and Monaghan n(5) 23
9
ibid 12
10
Kate Malleson,‘Diversity in the Judiciary:The Case for Positive Action’,(2009) 36 Journal of Law Society
LS,388
11
ibid 389
12
Bertha Wilson,‘Will women judges really make a difference?’ (1990), 28(3), Osgoode Hall Law Journal
507,512
2
