Sadiq Khan, the Shadow Justice Secretary and Labour MP, has announced that, should Labour be elected to government in the upcoming general election (due to take place in May 2015), then they would consider the implementation of quotas to increase the numbers of women and black and minority ethnic judges to hasten the creation of a judiciary which is representatively as diverse as the population it serves.
Khan has appointed Sir Geoffrey Bindman QC and Karon Monaghan QC to come up with ways in which a balanced judiciary can be achieved. He has also accused the current Government of harming progress through their cuts to the legal aid budget.
“If we just sit back and do nothing, it’ll take a century for our judges and magistrates to reflect wider society. I’m not prepared to sit by and let things move along at a snail’s pace.
Too many judges are still drawn from too narrow a background. An overwhelming number are male, white and Oxbridge. People’s differing backgrounds and experiences bring different and rich perspectives that improve their decision making as judges. If we achieve this it is my view that we’ll see a dramatic impact on the public confidence in our justice system.”
I believe that a diverse judiciary is something that should be welcomed, more so when one considers the power and importance of the magistracy. However, I wish to play devil’s advocate for a moment and inspect the comments of Sadiq Khan, above.
If equality before the law is desirable, in so far as consistency in decision making is to be promoted, then differing backgrounds and experiences bringing different and rich perspectives would not improve decision making, but make the decisions made on similar cases more disparate, therefore reducing equality before the law.
The issue is one primarily of fairness, a point which I shall address shortly in greater depth. The role of the judiciary, with the exception of the Supreme Court Judges whose primary role is to decide on matters of law, is to interpret and uphold the laws of evidence, and make a decision as to the outcome of the hearing, be it a sentence in criminal proceedings or an award of damages in a civil case.
In a criminal case, much more than a civil counterpart, diversity of knowledge and experience is of greater benefit, because the outcome is determined by a challenged recollection of past events and the intentions of those involved, to ascertain who committed the crime and whether it was their intention.
Herein a more representative magistracy is desirable. If the lay magistrate is to be put in charge of determining another’s guilt and deciding on matters of that person’s liberty, then an appropriately diverse range of people should be appointed to prevent intentional or un-intentional prejudices from ever becoming a factor in the decision making process. This is less of an issue for the Crown Court Judge whose professional capacity and not being responsible for the determination of guilt, reduces the practical necessity for diversity.
It would appear that the main intention of the announcement is to promote public confidence in the justice system, and thereby portray the Labour Party as the overall means by which this can be achieved. Having a more representative judiciary would, I believe, promote public confidence in the system. I assume that the public on the whole do not want to feel as though they are being dictated to by a minority, which in the past would be defined as the ruling classes. Things have moved on, and democracy has taken hold to such an extent that any endeavour or organisation of power and influence arguably should not be trusted unless its members are demonstrably representative of those it represents or serves.
This is not the case with the judiciary, a Lord’s Committee report found, that 22.3 per cent of judges were women, and 5.1 per cent had a BME background. In February 2014 Lady Hale said in the Kuttan Menon Memorial Lecture that 15.5 per cent of High Court Judges were women, 4.5 per cent were from BME backgrounds, only 10.5 per cent of judges in the Court of Appeal were women, and there were none from BME backgrounds.
In 2012 the Lord’s Committee came to the conclusion that based on current trends the judiciary would not achieve a gender balance until 2040, and an ethnic balance until 2035. However, the Lord’s Committee in 2012 ruled out the use of positive discrimination and quotas. An alternative measure, likely to be suggested by the QCs charged by Sadiq Khan to provide solutions, would be a series of early identification and mentoring schemes for young and promising female, and BME background lawyers.
As I mentioned earlier this is a question of fairness. If there are clear and defined barriers or mechanisms in place which put female and BME applicants at a disadvantage on the basis of their gender or race, then this is unfair, and changes should be made to restore the meritocracy.
If that is not the case, then the introduction of quotas sets up a generation of judges whose merits will always be questioned. They will spend their career without the security of knowing that they were promoted to the judiciary because they were the best candidates. I am not suggesting that those appointed would not be deserving of such positions, but their appointments would be tainted by doubt. It is therefore not fair on these individuals to have their careers overshadowed, nor is it fair in those circumstances whereby the best candidate is overlooked on the grounds of them being male, or white.
A system should be encouraged whereby race and gender are an irrelevance to advancement. This may take time, particularly when it comes to the judiciary, as the lower levels of the legal profession must first become more diverse to create the diversity of candidates desired for appointment to the judiciary. Quotas solve a statistical problem; they do not enable an attitudinal evolution by which systemic change is achieved.