Judiciary needs to be more diverse, peers say
More women judges, as well as more from minority ethnic backgrounds, would increase confidence in the courts, peers believe.
Setting targets to appoint more judges from among women and members of the ethnic minorities should be considered if the judiciary does not make itself more diverse within the next five years, peers recommend.
Only one in 20 judges is non-white and fewer than one in four is female, and this disparity is undermining the public's confidence in the courts, says the House of Lords constitution committee.
It recommends that a "tie-breaker" preference be brought in to redress the imbalance, making use of appointments where two equally competent candidates are available, but the government should resort to targets or quotas should there fail to be progress.
The select committee also calls for judges to have more flexible working practices and career breaks, and for part-time posts on the bench.
There has been progress: in 1998, 10.3% of judges were women, and 1.6% from black, Asian and minority ethnic (Bame) backgrounds; by 2011 the figures had increased to 22.3% and 5.1% respectively.
"The slow rate of change is not only a problem for those whose careers are affected; it is a problem for society as a whole," the committee notes. "A more diverse judiciary would not undermine the quality of our judges, and would increase public trust and confidence in the judiciary."
A precise breakdown of the ethnic and gender composition at each judicial level, contained in tThe report also shows that the higher up the judiciary, the less representative it is: of 37 lords justices of appeal, 33 are men and four are women. On the supreme court, currently 11 justices are men and one a woman.
It is recommended that the "tipping" or "tie-break" provisions in section 159 of the Equality Act 2010 be used in the appointments process: where there are two equally qualified candidates, then the one from the less represented background should be chosen. As matters stand, this section does not apply for judicial appointments.
Merit, the committee says, should be the sole criterion, for selecting judges, but: "We do not consider that the concept of merit should be narrowly focused on intellectual rigour.
"Although the simple fact of being a member of an under-represented group will not in itself make someone a more meritorious candidate, our witnesses pointed to 'limited empirical evidence that diverse judges can improve the decision-making process'…
"A more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself."
Another recommendation from the committee was a formal appraisal system for the judiciary. "Appointments panels must include lay persons who can bring a different perspective to the assessment of candidates' abilities," the report says, in order to prevent a "self-replicating" caste within the legal system.
Neither targets nor quotas are needed at present, the committee said. "However, we believe that this should be kept under review. If there has been no significant increase in the numbers of women and Bame judicial appointments in five years' time, the government should consider setting non-mandatory targets for the [Judicial Appointments Committee] to follow."
The report rejects the idea that there should be US-style confirmation hearings to endorse the selection of supreme court justices. "In order to ensure judges continue to have appropriate independence from Parliament," the committee says, "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."
Unexpectedly, the report recommends that the retirement age for the most senior judges, those in the court of appeal and the supreme sourt, 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," it says. Retirement for all other judges should continue to be 70.
Baroness Jay, chair of the committee, said: "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."
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