Judicial diversity: minority interest

It is now a decade since Baroness Hale was appointed as the first female law lord and Mrs Justice Dobbs was the first black High Court judge. But there is still just one woman in the Supreme Court and only one black, Asian and minority ethnic (BME) judge – Mr Justice Singh – at High Court level or above.

In the eight years since the judicial selection process was overhauled, there have been improvements at entry and middle levels, but overall women still only make up 29% of the judiciary while 6% are from BME backgrounds.

The percentages are much lower in the senior ranks. There is now a ‘record’ number of women judges – 19 out of 108 High Court judges and seven out of 35 Appeal Court judges – but still no women or BME heads of division. But is the momentum enough to drive forward improvements or is it time for a more interventionist strategy? This is a question being asked not just of the judiciary but across all institutions and businesses.

The government, with just four women Cabinet members, was left embarrassed recently by its all-male, all-white front bench. Labour’s shadow business secretary Chuka Umunna has said Labour will consider introducing boardroom quotas if it does not see progress, after a recent report found more than half the boards of FTSE-100-listed companies are still all white. The Church of England is expected to fast-track moves to consecrate women bishops.

So, will the new measures in the Crime and Courts Act 2013 – including flexible working in the High Court and above, and the ‘tipping point’ provision which allows diversity to be taken into account where two applicants are of equal merit – go far enough?

Defining moments

Described as potentially transformational, the option of flexible working arrangements still has to be weighed against operational demands. When nine High Court vacancies were advertised shortly after the provisions came into force, only one was available for flexible working.

The Judicial Appointments Commission (JAC) will soon publish its policy on the tipping point provision, a development which chair Christopher Stephens acknowledges will not, on its own, solve diversity issues but which could make a ‘positive contribution’.

The commission has yet to clarify if the provision will be used at the shortlisting as well as the selection stage, and which of the nine ‘protected characteristics’ under the Equality Act 2010 will be included.

But in its consultation paper last year JAC said it was ‘minded’ to consider applying the provision to just gender and ethnicity, because lack of reliable data in relation to other groups, such as disability and sexual orientation, means decisions could be ‘unfair and open to challenge’.

The going is certainly ‘tough and slow’, accepts Stephens. He believes progress is being made but, he stresses, improving diversity cannot rest solely with the JAC.

The Judges’ Council is stepping up its input with a new diversity committee, which will involve more judges at all levels, in its efforts to make the judiciary more representative.

Vice-chair Lady Justice Hallett promises it will not be a ‘talking shop’ or issue a ‘series of diktats from on high’. However, she also warns that ‘we do all have to be realistic’ about how far and how fast the composition of the judiciary may change, because there is not a ‘huge marketing or events budget’.

The pipeline

Given that the JAC’s benchmark for diversity is the pool of eligible candidates, the legal profession must take responsibility not just for attracting and retaining women and BME lawyers, but also for developing them as future leaders and managers so they can compete for senior jobs.

For solicitors, the progress to senior judicial positions remains glacial. More than 20 years after the first solicitor judge was appointed to the High Court bench, former McKenna partner Mr Justice Hickinbottom is still only the fourth solicitor – all white and all male – to have made the grade.  

It has been a ‘long road’ from parking adjudicator and assistant recorder in 1994 to the High Court in 2008, and it is ‘extremely disappointing’, Hickinbottom says, to be the only solicitor judge currently at that level or above.

‘After Lord Collins retired from the Supreme Court,’ he recalls, ‘I was horrified to be introduced at the Law Society as the most senior solicitor judge. It made me feel 102.’ (He is 58).

In 2012, Hickinbottom was appointed one of two senior liaison judges for diversity. For those leading the way, it is hard always being a role model. ‘I am sure Mr Justice Singh and the women judges would say the same,’ he says. ‘For many, it has meant sacrifices along the way, but what we need is a system that doesn’t require women or BME judges to make that level of sacrifice to get into senior positions.’

He believes that, while the new measures being introduced are important markers, they will not make a ‘huge change’.

‘We need to look elsewhere for bigger changes and make sure there are no ceilings for good judges,’ he says. ‘If I could do one thing, I would change working practices to make the bench more attractive, particularly in the High Court, where, for example, going on circuit is hard for anyone with caring responsibilities.’

We all bring different qualities to the job which can only enhance the bench and improve public confidence. That is why increased diversity is so important

Lady Justice Hallett

While we are a ‘very long way’ from moving to a continental-style career judiciary, he says: ‘There is something to be said for considering multiple entry points. Traditionally, we have taken people who are at the top of their profession, but we should think about taking younger people who would come in at the bottom and work their way up.

‘It is an expensive option because we would need a very rigorous judicial college to train them, and we would need to ensure they weren’t regarded as second-class.’

Hickinbottom would also put part-time judges on fixed-term appointments, albeit renewable. ‘We need to release people from the top to make sure new people are coming in to refresh the judiciary,’ he explains.

‘Having part-time judges who have being doing it for 20 years and don’t want to become full-time judges may be good operationally, because they are experienced. But it isn’t good from a diversity point of view because it blocks others from using that experience to become appointable as full-time judges.’

Obstacle course

But challenging the status quo is not straightforward, as can be seen from the critical comments that follow Gazette stories on diversity and the lack of enthusiasm for the Solicitors Regulation Authority’s diversity survey.

However, at the heart of the debate are two key questions. Judges are supposed to be impartial, so why does it matter what ethnic background or gender they are? And second, does the requirement to appoint ‘solely on merit’, with an associated duty to encourage diversity, actually become a defence against change, as Lady Hale has suggested?

So does diversity matter? Yes, says Lady Justice Hallett. The first woman chair of the Bar Council and the first woman chair of the Judicial Studies Board has said it will be a ‘glorious day’ when references to gender or ethnicity in relation to appointments are no longer significant.

She tells the Gazette that it may appear that gender, ethnic or social background are ‘irrelevant’ because judges must be able to put aside personal feelings and judge on the facts and the law without prejudice. They are not: ‘We all bring different qualities to the job which can only enhance the bench and improve public confidence. That is why increased diversity is so important.’

The figures are improving, she says – ‘if not fast enough and if not at the most senior levels’ – so the task is to improve the numbers without diluting the quality.

But is it enough to measure progress by ticking off diversity boxes or by ‘nose counting’ – the concept that assumes there are clearly defined racial, ethnic and gender identities?

‘I suspect progress will be measured, in the first instance, by “nose count”,’ Hallett says. ‘The challenge comes in analysing the data. If you are looking to improve social mobility, would you accept as “state-educated” someone who went to a top-class grammar school which is private education in all but name?’

It is a given that everyone wants to be appointed ‘on their own merit’ and not as a token. But can academic attainment and past experience be assessed objectively without taking into account different educational and professional opportunities, and economic background?

‘I entirely agree that merit can be used as a defence mechanism by those afraid to embrace change,’ says DWF family partner Mary-Ann Wright, inaugural chair of the Law Society’s Women Lawyers’ Division.

She continues: ‘As a position of pure logic, can anybody seriously suggest there aren’t enough female or BME candidates who are as capable as their white male counterparts? If you look at exam results and classes of degrees, girls outperform boys. They don’t suddenly lose their intellect when they go into the workplace. The merit argument is a red herring.’

The key is to identify candidates who are of sufficient merit but have not had the same ‘leg up’ or opportunities to shine, says sole practitioner Sundeep Bhatia, joint secretary of the Society of Asian Lawyers. ‘There is nothing wrong with the idea of choosing on ability, but we all naturally choose people in our own image, whose career and experiences we recognise, so selectors need to think outside the box. If the tipping point provision can then put more people into the mix it will be good for society.’

Stephens acknowledges that merit is ‘not an unchanging thing’ and says JAC has amended the criteria so candidates are assessed against their understanding of diverse communities and their differing needs, and a commitment to public service.

‘We are very confident that our selection processes, which we equality-proof at all stages, avoid bias,’ he says.

But so much is down to perception. Last summer, more than 4,000 solicitors, barristers and chartered legal executive fellows eligible for judicial appointment replied to a survey on the barriers that put them off applying for judicial posts.

It found women and solicitors are still significantly less confident about applying compared with men and barristers. Only two-thirds of the women and 70% of the solicitors surveyed believed they have the skills and experience to make a good judge, compared with 78% of men and 87% of barristers. Only 43% of solicitors felt they would receive the support of their employer compared with 80% barristers.

I was very aware there were a lot of people coming before the bench who looked like me but there weren’t many on the bench who looked like me

Cordella Bart-Stewart

Work is being done to build confidence. Judges have joined the Law Society and JAC in holding outreach events, mentoring, offering work shadowing schemes and mock interviews for senior posts. UCL Faculty of Laws in London is running a course on judicial skills on 5 and 6 April for lawyers and academics.

‘Too often women are held back by that inner voice saying “will I be able to do it?”,’ says Wright. ‘I always say to women that we shouldn’t have to be better than our male counterparts, we just need to be good enough, so give yourselves permission to succeed.

‘But many tell me they are plagued with self-doubt because it has been so challenging to be treated equally when they go for a new role. If you “lean in”, as Sheryl Sandberg [Facebook COO] would have us all do, many fear they will face negative comments around being “pushy” or other such negative labels.’

New benchmarks

Wright applied for a place on the Family Justice Council last year. ‘I thought I can’t tell other women to put themselves forward if I am not prepared to do it myself and face a potential knock-back,’ she says.

‘The process seemed very fair but I can imagine a candidate from a different background might have felt uncomfortable in front of the selection panel I faced. I didn’t get appointed. I may not have performed well enough, while others may have had more experience. It wouldn’t put me off applying again but others might be. So, at every level, panels need to reflect the candidates coming before them.’

Sole practitioner Cordella Bart-Stewart is executive director of the Black Solicitors Network. She is a ‘rare breed’, she says, in being a black woman who is a judge, a solicitor and from a post-1992 university while ticking most of the social mobility ‘boxes’.

For the last 13 years, she has combined sitting one day a week as an immigration judge with running her sole practice. ‘I work very hard to maintain my sitting,’ she says, ‘but I think it helps me be a better practitioner, while my practical experience helps me be a better judge.’

She feels ‘dispirited’ by the ‘inexcusable’ lack of progress. ‘I applied because I thought it would be good for my career and because I was very aware there were a lot of people coming before the bench who looked like me but there weren’t many on the bench who looked like me.’

Bart-Stewart still feels ‘very much in a minority’ and wants positive action (not positive discrimination, she stresses) with targets and better career progression.

This picks up on Lady Hale’s call for clearer opportunities for lower-tier judges to move to the ‘uniform branch’, referring to the ‘unspoken officer-class mentality about who gets what sort of job’, and on criticism over the lack of transparency in appointments to gateway roles.

Stephens says the JAC is now responsible for the selection of the pool of judges who can sit as deputy High Court judges, an important stepping stone to the senior bench – 43%  of those authorised to sit in 2012/13 were women – while a new provision allows flexible deployment of judges between courts and tribunals.

Solicitors make up 66% of tribunal judges and 38% of court judges. However, they are applying in fewer numbers and face a double-whammy. They are not breaking through into the senior judiciary and they are losing ground in areas they traditionally dominated, says Hickinbottom.

‘Barristers are flooding into jobs as deputy district judges and district judges, which they wouldn’t have touched with a barge pole 15 years ago but are now attractive because of pressures on their work at the bar.’

What other steps can be taken? The commission does not set targets but Wright argues that ‘what’s measured gets done’, adding that aspirational targets could also help law firms improve diversity.

One difficulty facing solicitors is getting the backing of their firms. Initial efforts to get City firms to put their solicitors forward stalled in 2011 but 21 City firms, including three from the magic circle, have now signed up to the Law Society’s commitment to promote judicial appointments.

Solicitor and MP Shailesh Vara was appointed justice minister last year. ‘From experience I know the demands placed on solicitors, but I would encourage all firms to consider subscribing to this commitment,’ he says.

Part of law firms’ social responsibility should be allowing their employees to hold what are very important public offices, says Bart-Stewart. ‘Also, we all know what it is like being before a bad judge. If there are people in your office with the potential to be good judges you ought to be encouraging them.’

Looking to the future, she says: ‘There is a lot of hand-wringing at the top, but they just have to be bold.’

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Grania Langdon-Down is a freelance journalist