We are in the foothills of true judicial diversity

The justice system touches every aspect of our lives, from defending our constitutional rights to resolving disputes between neighbours, families or businesses. 

Everyone should feel they have a place in our justice system.

The judiciary is one of the most important and visible symbols of justice and authority in our country. If the judiciary does not broadly reflect the make-up of our society, we risk undermining the social contract that binds us together.

However, the judiciary is still overwhelmingly white and male, particularly at more senior levels.

The government’s own figures show that progress in improving the diversity of judges in England and Wales has been far too slow, and in some cases, has stalled.

The Ministry of Justice’s (MoJ) Combined Diversity Statistics show the trends in judicial diversity from 2014 to 2022. The data tells a number of different stories.

In eight years, Asian representation has almost doubled, from 2.5% in 2014 to just under 5% this year. Women now make up just over a third of the judiciary in courts (35%), compared to 25% eight years ago and just over 10% in 1998. While it’s good to see signs of progress, representation for both groups is still well below population levels.

Meanwhile, the proportion of the judiciary who are mixed-race has increased from 1.2% in 2014 to 2.5% in 2022, higher than the Office for National Statistics estimate for the general population (1.8 %).

Most damning of all, there has been no improvement at all in Black representation on the bench in almost a decade. The figure has fluctuated just above 1% every year since 2014, with just a 0.07 percentage point increase over an eight-year period.

The percentage of judges from a non-barrister background has also fallen from 37% in 2014 to just 31% in 2022, which might suggest socio-economic diversity could even be in decline.

Law Society research

In October, the Law Society published new research which examined the rate of progress for women, Asian and Black judges over the last eight years.

We forecast based on the current rates of progress to see how long it would take for the judiciary to reach levels of representation similar to the general population, as estimated by the Office for National Statistics.

We found it will take more than 120 years before women, Black and Asian people are properly represented within the judiciary if things continue the way they are.

Black judges currently make up 1.09% of the judiciary, compared to 1.02% in 2014. We estimate it would take until 2149 for the proportion of the judiciary who are Black to match current estimates for the general population by that time (3.5%).

At current rates of progress, it would take until 2033 before the percentage of Asian judges would reflect the wider population (8%).

Similarly, women make up around a third of judges today. Current trends suggest it will be another decade before half of all judges are women.

We need a judiciary that truly reflects our diverse society and we urge the government to have a clearer roadmap to ensure much swifter progress in judicial diversity.

The structural barriers that are holding back talented candidates must be addressed.

The process is the problem

Across all legal exercises that closed between April 2019 and March 2022, Black representation among recommended candidates was proportionately lower than for any other group.

Recommendation rates from the eligible pool of Black candidates was 75% lower than for white candidates, while the shortlisting rate for Black candidates (7%) was less than a quarter of white candidates (29%).

‘Deep Dive’ analysis conducted by the MoJ into five years’ worth of data found that, even after controlling for legal profession and Oxbridge attendance, Black, Asian and minority ethnic candidates did less well than white candidates for the majority of selection tools in judicial appointments.

What should be done

For progress to happen, the first focus should be on the selection and appointment process.

We have been calling for the abolition of ‘statutory consultation’, a process where the Judicial Appointments Commission (JAC) consults with sitting judges about new appointments. Described by some as ‘secret soundings’, this process is separate to the requirement for each candidate applying to become a judge to nominate two referees. We believe this disadvantages candidates from under-represented groups and is unnecessary given there are other stages in the selection process that cover criteria statutory consultation is intended to assess.

Statutory consultation also appears to conflict with the Equality and Human Rights Commission’s Employment Statutory Code of Practice, which emphasises the need for an objective process for recruitment to avoid discrimination. This states that references 'should only be obtained, and circulated to members of the selection panel, after a selection decision has been reached' and that a reference 'focuses on information that is relevant to the job'.

Conversely, statutory consultation happens before a decision has been reached and the JAC are clear they use the process to assess merit and good character.

Beyond this, the JAC should examine the selection process as a whole to identify any barriers holding back candidates from under-represented groups.

In terms of support, there’s work being done to ensure the best candidates have a fair chance to prove why they’d be worthy of holding a judicial position. We work with others through the Judicial Diversity Forum on programmes to improve candidates’ preparedness for judicial selection exercises. The Pre-Application Judicial Education programme (PAJE), is run jointly by the MoJ and professional bodies to help people from under-represented groups gain judicial appointments. The Law Society’s Solicitor Judges Network also provides networking and development opportunities. It brings together both aspiring and experienced solicitor judges to share advice.

There cannot be equality of opportunity if the judiciary appears to be less accessible to certain professions or groups of people.

Everyone’s outlook on life has been shaped by their background and upbringing. We all have unconscious biases that affect our decision-making. A more diverse judiciary would dimmish the risk of unconscious bias in judicial decision-making. This would help increase public confidence in the judiciary as a whole and the justice system more widely.

We have a wealth of online material for members interested in the judiciary and we run competency-based courses and events to improve understanding of the application and selection process.

We will continue to support our members to make strong judicial applications and pursue their judicial aspirations.

 

Lubna Shuja is president of the Law Society of England and Wales