Judicial diversity

From parking adjudicator to the Court of Appeal, Gary Hickinbottom will be sworn in next March as Lord Justice Hickinbottom, becoming only the second solicitor to reach such high judicial office.

He remains the only solicitor judge above High Court level since Lord Collins retired from the Supreme Court in 2011; and only the second circuit judge to reach the appeal court.

This raises two questions. Why are solicitors not reaching the higher ranks? And should there be a more structured career path with judges moving across and between the tribunals and courts, and even a judicial career fast-track?

‘If I knew the answer, I would be very clever,’ says Hickinbottom, 60, who in the meantime continues with his High Court work.

Being the ‘second’ should show a trend, he tells the Gazette. ‘But the last circuit judge to make it to the Court of Appeal was in the 1980s, and Lawrence Collins was a unique case because his expertise in international work was needed.

‘He wasn’t a “hack” chap like me. So sometimes I think it is tremendous to be only the second solicitor to become a Court of Appeal judge; at other times, I think it has been a real slog and you can understand others not wanting to do it.’

The judiciary is facing calls to make the bench more diverse. This means putting pressure on the legal profession to ensure it is helping more diverse talent make it to the top to provide a wider pool of potential recruits. 

Lord chancellor Liz Truss lamented the lack of diversity at the Conservative party conference, stressing that ‘a modern justice system is not just reflected in its processes but in its people’.

With 175,000 enrolled solicitors across England and Wales, the judiciary should be spoilt for choice for talented solicitors ready to take to the bench. So why are more not making their mark? 

Law Society president Robert Bourns says Chancery Lane is currently reviewing the support offered to aspiring solicitor judges to see if more can be done. He points out that five BAME candidates who attended workshops targeted at under-represented groups have recently secured judicial appointments.

One major challenge is getting firms to support applications by their talented lawyers. 

Hickinbottom’s firm certainly ‘wasn’t keen’ when he took up his first judicial appointment, which coincided with his appointment as assistant recorder. He recalls that he was still expected to do as many fee-earning hours as anyone else. 

‘We need to change the culture so that judicial success is celebrated as it is at the bar, or we won’t get more solicitors coming to the bench,’ he says. 

There comes a time ‘when your firm wants you to go and there is a job here that you could do’, he says. ‘But no one has worked out how to get people to sit part-time for the five years beforehand – or three if it is done intensively – which will bridge that gap and ensure they find out if they like it and want to apply for a salaried role.’

Hickinbottom was appointed as a senior liaison judge for diversity to try to resolve this barrier. Over 18 months he visited 20 firms in central London and the City with Alexandra Marks, solicitor commissioner on the Judicial Appointments Commission (JAC), and the commission’s previous chair Christopher Stephens.

‘We tried to identify the firms we thought might listen, some that we didn’t think would be positive and some with a tradition of having a social conscience,’ he recalls.

‘We learnt that the answer wasn’t going to be easy. Some were antagonistic to judicial appointments. It was all about lost money and they simply don’t let their equity partners do anything extra – and certainly not something part-time which may result in them leaving the equity when the partnership doesn’t want them to.’

Others, such as some West End of London firms, have always encouraged their lawyers to do other things, such as be a clerk to a commission or become deputy district judges (DDJs).

‘So we realised that aiming at equity partners in some firms was a complete waste of time,’ he says. ‘But, within those firms, there were others worth pursuing such as salaried partners and those in professional support roles.’

However, he does also recognise there are financial consequences to becoming a judge. Just as there are people at the bar who can afford to become judges, there will also be some solicitors who can afford it, he says: ‘I couldn’t have become a judge at the age of 44 with the current deal  because the numbers wouldn’t add up.’

One practical step introduced last year was to fast-track exceptional lawyers by removing the requirement for previous judicial experience for the role of part-time High Court deputies – 18 positions last year and 15 this – as a precursor to applying for a full-time role. 

To help those without judicial experience and from diverse backgrounds prepare for the application process, the judiciary ran a support programme for 31 candidates chosen from 200 applicants.

There are no figures yet showing whether anyone from the programme was successful. However, the judiciary is running a similar support programme for the upcoming competition, which received 100 applications.

Of the 334 applicants last year, 19 were recommended for appointment from a shortlist of 45. Just over half (190) were aged 46-55, of whom 28 were shortlisted and 14 were selected. The other four on the shortlist were aged 36-45. However, the JAC has not given details of professional backgrounds or if any were appointed without previous experience.

Marks, a former real estate partner with Linklaters, is a recorder and deputy High Court judge. Earlier this month she was awarded a lifetime achievement award at the Law Society’s Excellence Awards for her work, including promoting the contribution of solicitors to the judiciary.

Marks is the assigned commissioner on the next deputy High Court exercise. She is writing to practitioner groups asking them to encourage members to apply, as well as the 21 firms that pledged support for the Law Society’s 2012 solicitor judge recruitment campaign because ‘this is a perfect opportunity to show their support’.

While the last exercise attracted more A-rated, outstanding candidates than vacancies, and scored well in terms of women and BAME candidates, Marks says it was not so successful in attracting solicitor applications. She hopes that will change this year.

She says the JAC and the Society are working on a more systematic approach to supporting solicitors through the process, particularly now barristers are competing ‘ferociously’ for DDJ and tribunal roles.

‘I don’t think solicitors are losing out to barristers because they are less competent,’ she says. ‘But barristers tend to be more experienced in court processes and find it easier to identify when they are ready to apply.’

It is also about professional resilience, she adds. Without support, solicitors think that if they do not succeed they are not good enough, whereas barristers are used to picking themselves up and moving on after being criticised in court.

For Hickinbottom, diversity could be improved more quickly with multiple points of entry: ‘We take judges from the top of the profession. But we could also take lawyers in as district or circuit judges in their twenties and support them through the system, as happens in other jurisdictions. 

‘Another way is for the various branches of the justice system to have sufficient mutual respect for people to move across and up with confidence. We don’t have that yet,’ he says.

Peter Glover recently retired after more than 20 years as a judge. He joined up wanting to serve as a district judge in the county court, where he had spent his career as a solicitor and advocate.

He is not in favour of a career judiciary. One of the drawbacks, he says, is that if there is hierarchical career progression ‘there would inevitably be some form of appraisal and vetting of junior judges by their seniors, very similar to that endured by French judges, which to my mind erodes judicial independence’.

Where Glover does agree with Hickinbottom is over more flexibility in judges entering and learning new jurisdictions. All DJs are automatically first-tier tribunal judges, while the more recently appointed tribunal judges are also appointed as county court judges. 

Glover helped train one of the 23 employment judges seconded to help out in the county courts as part of a pilot scheme, while he served as a judge in the mental health tribunal for 12 years. ‘As the exchanging judiciary are at a similar level, the risk to judicial independence is minimised,’ he says.

There are also practical steps being taken in the background. The equal merit provision, which allows the JAC to select a candidate from an under-represented group where there are two or more assessed as being of equal merit, has been used in 21 JAC exercises at all levels since it was introduced in 2014.

Marks explains how the process works. Selectable candidates are ranked in order. If there are 30, for example, but only 18 vacancies, the first 18 on the list will be appointed if they are clearly the top 18 candidates. 

But if there is a ‘zone’ either side of the cut-off point where the candidates are of equal merit, the JAC will consider if it is right to apply the provision.

Marks stresses: ‘There is, therefore, never any question of appointing someone of less merit above someone of greater merit – nor of course would we ever appoint someone otherwise “below the line” in terms of appointability.’

But, given any moves to increase diversity by improving the career structure will take years to work through the system, is it time to grasp the nettle of quotas?

Kate Malleson, professor of law at Queen Mary University of London, argues that without quotas it is unlikely there will be gender equality on the bench even within Lord Sumption’s 50-year timescale, given that the pace of change is ‘glacial’.

However, many women and BAME judges are opposed to quotas in case the perception is that they were not appointed on merit. 

But Malleson asks: ‘Can you call the current system fully merit-based? Unless anyone believes that white men are inherently cleverer or better suited to be judges, their significant over-representation in the judiciary must mean that there are equally or better-qualified women and BAME lawyers out there who could be appointed on merit.’ 

However, her preference would be for ‘ceiling quotas’ which place a cap on the number of overrepresented groups rather than focusing on traditional quotas which seek to reserve space for under-represented groups.

At the other end of the career ladder, the Ministry of Justice is causing consternation among DDJs – traditionally a key entry point for solicitors – with its consultation on modernising judicial terms and conditions.

A key proposal is to introduce fixed terms – it suggests six, eight or 10 years – for new and existing fee-paid judges who could then apply for another fixed term in a different role or apply for a full-time salaried role.

The MoJ argues that, by mapping out a clearer career path, it would attract applicants from a wider pool which would be continuously refreshed because openings would no longer be blocked by people spending years in the same fee-paid role.

Solicitor and DDJ Peter Causton chairs the unofficial UK Association of Part Time Judges, which is preparing its response to the consultation.

Speaking personally, he welcomes the idea of a judicial career structure but is concerned about the fixed-term proposal. ‘The risk,’ he says, ‘is that unless more salaried opportunities are available, or more flexible deployment is introduced and the JAC appointments process is altered, there will be no career for fee-paid judges. 

‘The proposal will then discourage diversity because there will be no job security.’

Solicitors are already deterred from applying because it can amount to ‘career suicide’, he adds. ‘I would personally advocate a more fundamental change which would involve all fee-paid judges being appointed as salaried part-time judges with their sitting days increased depending on performance.’

A BAME female DDJ tells the Gazette the changes would not encourage diversity but would instead ‘breed inefficiency and chaos’ as the courts lost experienced judges with no evidence that they would apply or obtain salaried posts.

Another points out it would be the ‘longest resignation letter in history’ because anyone asking their firm for time off to be a DDJ would be seen as taking the first step to becoming salaried, putting their career in practice at risk.

Marks says she sees both sides of the argument. ‘There is a bed-blocking element – I am [one example], having been sitting as a fee-paid recorder for a number of years. But, on the other hand, had I applied as I did in my early 40s, I wouldn’t have wanted to make a decision whether to sit full-time within four or five years of starting.’

But whatever steps are taken to improve career prospects – and however much judges feel under attack over their pensions, employment terms and working conditions – what still comes over clearly is their passion for their judicial work.

For Hickinbottom, Lord Justice Laws summed up why people should become judges when he said on his retirement that ‘the law is not just a job, and not even just a vocation – it is an adventure’.

The question now is, will all these changes persuade a more diverse cohort of lawyers to take up the challenge?

On 8 November, the Law Society will host a ‘seminar on ‘becoming a judge’ for legal professionals currently under-represented in the judiciary. It will feature Lady Justice Hallett, upper tribunal judge Judith Gleeson, DDJ Pankaj Pathak and Judge Khatun Sapnara.

Grania Langdon-Down is a freelance journalist