Debating Judicial Appointments in an Age of Diversity

Graham Gee, Erika Rackley, Graham Gee, Erika Rackley

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315400044
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

What should be the primary goals of a judicial appointments system, and how much weight should be placed on diversity in particular? Why is achieving a diverse judiciary across the UK taking so long? Is it time for positive action? What role should the current judiciary play in the appointment of our future judges?

There is broad agreement within the UK and other common law countries that diversity raises important questions for a legal system and its officials, but much less agreement about the full implications of recognising diversity as an important goal of the judicial appointments regime. Opinions differ, for example, on the methods, forms, timing and motivations for judicial diversity. To mark the tenth anniversary of the creation of the Judicial Appointments Commission (JAC) in England and Wales, this collection includes contributions from current and retired judges, civil servants, practitioners, current and former commissioners on the JAC and leading academics from Australia, Canada, South Africa and across the UK. Together they provide timely and authoritative insights into past, current and future debates on the search for diversity in judicial appointments.

Topics discussed include the role and responsibility of independent appointment bodies; assessments of the JAC's first ten years; appointments to the UK Supreme Court; the pace of change; definitions of 'merit' and 'diversity'; mandatory retirement ages; the use of ceiling quotas; and the appropriate role of judges and politicians in the appointments process.

1 Introduction

Diversity and the JAC’s first ten years

Graham Gee, Erika Rackley

This is an age of diversity. In a pluralistic polity such as the UK, diversity often serves as shorthand for a series of related questions about how best to respond to our mutual differences of, amongst other things, gender, race, sexuality and social background. Over the last twenty-five years or so there has been growing recognition that these questions are as relevant to the courts and tribunals as for other areas of public life. Today, across the UK, there is widespread agreement that the judiciary should reflect the society it serves. Especially welcome is the evidence in recent years that this agreement traverses the judicial and political spheres, with the need for faster and more visible progress on judicial diversity increasingly acknowledged across the ideological spectrum. There is, in other words, a political salience to debates about judicial diversity largely absent just a few years ago. This has significant spill-over effects for the design, working and assessment of judicial appointments: previously relatively discrete debates about the independence, legitimacy and accountability of the appointments regime are frequently now framed in terms of, and by reference to, widely shared concerns about the need for judges who are more visibly reflective of society. Diversity is not the only goal of a selection regime of course, but it has begun to shape how those other goals are viewed. In brief, there is now such widespread agreement about its importance that judicial diversity ‘has in recent years become a truth almost universally acknowledged’.¹

Although most now accept the pressing need for a more diverse judiciary, there is considerably less agreement about the implications of recognizing diversity as an important goal of the judicial appointments regime. In fact, beneath the veneer of agreement that a diverse judiciary is – all else being equal – normatively desirable, there is substantial disagreement about almost everything else including the methods, forms, timescales and justifications for bringing it about. Differently put: the risk is that the consensus amongst politicians, judges, lawyers, officials and lay people about the need for a diverse judiciary conceals tricky and largely unaddressed questions about not only how to achieve diversity, but also the very meaning of diversity in this context. Some questions have a conceptual orientation. For instance, precisely how diverse is a diverse judiciary? Do understandings of diversity change if we think in terms of the over-representation of traditionally privileged groups rather than the under-representation of historically marginalized groups? How is judicial diversity best secured when the wider social environment is informed by entrenched patterns of power, privilege and perhaps even prejudice? Do changes to the judicial role – a greater emphasis on leadership, case management and communicating with litigants and the public at large – suggest that traditional understandings of ‘merit’ need to evolve? Other questions are more practical. For example, how does the need to diversify the judiciary align with policies on retirement? What degree and sort of involvement in appointment processes for judges, ministers, lawyers and lay people helps or hinders the pursuit of diversity? What lessons – if any – can be drawn from the approach to promoting diversity in other legal systems?

This collection brings together current and retired judges, officials, lawyers and academics from Australia, Canada, South Africa and the UK to debate these and other questions. It is the first collection investigating diversity debates in light of the changed institutional terrain of judicial appointments in England and Wales. The collection’s premise is that debates about diversity are complex and interrelated, with transformation of the judiciary’s composition likely only via a systematic and collaborative approach. Systematic insofar as diversity must be addressed not only within the appointments process itself, but when thinking about a myriad of other matters as well: retention as well as recruitment; the terms and conditions of judicial service; the provision of training; arrangements for judicial welfare; promotion and professional development across a career; policies on retirement and post-retirement and so forth.² A systematic approach also extends more broadly to include thinking about how judicial recruitment is influenced by multiple political and social changes, including changes to the public sector, legal regulatory regimes, legal labour markets and the career choices and working arrangements of lawyers. Insofar as debates about diversity should be informed by the perspectives, experiences and insights of the many different actors with a stake in the judicial system, the approach must also be collaborative.³ This requires, at a bare minimum, that all of those with a stake in the judicial system engage in good faith, reasoned and constructive debate. Of course no single collection could address all of the interrelated issues implicated in these debates nor include all of the perspectives on them. All that having been said, this collection strives to discuss a number of conceptual and practical questions relating to judicial diversity, and to do so via several lenses: judicial and non-judicial, legal and lay; practitioner and academic; domestic and international; analytical and experiential; and insider and outsider.

Debates about diversity must be attentive to the real world institutional settings in which individual selection decisions are made. The institutional focus for this collection is the Judicial Appointments Commissions (‘JAC’). Created under the Constitutional Reform Act 2005, beginning its work in 2006 and marking its tenth anniversary last year, the JAC is the body responsible for recommending candidates for appointment to courts and tribunals in England and Wales (as well as certain tribunals whose jurisdictions extend to Scotland or Northern Ireland). The JAC is of course only one part – albeit a very significant part – of the new architecture of appointments that plays host to debates about diversity. The statutory context, the structure of the legal professions and the behaviour of other stakeholders in the judicial system remain key determinants of the rate of progress on recruiting candidates from a wider pool of talent that is more reflective of society at large. Inevitably, however, the JAC is today the primary focus of many of the most pressing debates about diversity – and, as illustrated throughout this collection, views differ on the extent to which its processes and policies have helped or hindered the transformation of the judiciary. Perhaps unsurprisingly, one site of disagreement is between those on the inside of the JAC-managed regime (i.e. the JAC, senior judges and officials at the Ministry of Justice) and those on the outside (i.e. academics and lawyers, particularly those from groups under-represented in the judiciary). Insiders and outsiders often have markedly differing assessments of the scale of the diversity deficit, the pace of progress so far and the tools needed to address it, and in particular whether the JAC has utilized the levers available to it as fully as it might. They also often have rival views on whether the levels of judicial and ministerial involvement in JAC-run selections help or hinder the push for a more diverse bench. In short, insiders and outsiders appear to have different experiences of and expectations for the JAC’s selection regime. Across the last ten years, constructive debate has proved very challenging because views diverge so markedly, with insiders and outsiders often seeming to speak past each other.

This collection encompasses both insider and outsider perspectives on the JAC, with many of the contributors using their essays not only to reflect on the many challenges that the JAC has confronted during its first decade, but also to chart how it can tackle the challenges that are likely to define the next ten years. In addition to a dozen chapters written by academics, this collection includes six ‘reflection essays’ by people with practical, first-hand experience of the judicial appointment processes in England and Wales. The authors of these experiential essays have all been involved in judicial appointments in one guise or another. They include former and current commissioners on the JAC (Frances Kirkham and Noel Lloyd respectively), two former senior civil servants (Sir Thomas Legg and Jenny Rowe), and two prominent practitioners who have been vocal critics of the rate of progress on diversifying the judiciary (Karon Monaghan QC and Cordella Bart-Stewart). Between them, these authors’ involvement with judicial appointments dates from the early 1980s to today. The collection also contains an opening essay reflecting on the JAC’s first ten years by its recently retired chair, Christopher Stephens. It closes with a longer essay by Lady Hale on the process for selecting the Justices of the UK Supreme Court. Lady Hale is, of course, not only the Court’s Deputy President, but also one of the most powerful voices in the common law world on the importance of judicial diversity.

The collection’s objectives are threefold. First, it aims to illustrate the range of views on and experiences of the JAC-run regime, which is after all more inclusive than the pre-2005 regime, involving as it does ministers, judges, civil servants, lawyers and lay people. Second, it attempts to identify possible reasons for, and suggestions on how to respond to, the contrasting assessments of those on the inside and outside of the regime, especially as those assessments relate to the rate of progress on diversity. Third, the collection attempts to reframe in novel and fruitful ways some of the familiar debates that have led to an impasse between insiders and outsiders: debates relating to, among other things, ‘merit’, quotas and the respective roles of judges and politicians in the selection process. In doing all of this, the collection furnishes a number of competing assessments of the JAC’s first decade as well as mapping out alternative paths that the JAC could pursue in its second. In this Introduction, we offer an outsider’s account of the JAC’s first decade, albeit one that draws on interviews and conversations with insiders. Our goal is to give readers a flavour of the highs and lows and ups and downs of the JAC’s first ten years and to sketch some of the main challenges that will confront it in its second decade.

The new institutional terrain of judicial appointments

The terrains on which diversity debates play out have changed. In line with the international trend, there are now central roles across the UK for independent commissions in the appointment of judges to courts and tribunals.⁴ Just as there are multiple domestic judiciaries in the UK, so there are also a number of selection processes, each anchored around its own commission.⁵ The Judicial Appointments Board for Scotland (‘JABS’) was created in 2002; the Northern Ireland Judicial Appointments Commission (‘NIJAC’) in 2005, whilst the JAC was established in 2006.⁶ (This collection includes contributions from former lay commissioners at JABS and NIJAC: Alan Paterson and John Morison respectively). The Supreme Court, itself a recent creation which only began its work in 2009, has its own recruitment process involving ad hoc commissions that are specifically constituted whenever vacancies arise.⁷ But the changing institutional landscape extends much further than this. In England and Wales, for example, there has been continuing change over the last decade to the roles and responsibilities of several crucial actors in the selection regime such as the Lord Chancellor and the Lord Chief Justice. Transferring staff and functions from the Ministry of Justice to the JAC and the Judicial Office (which was created in 2005 to support senior judicial leaders in England and Wales) has also moulded relations between crucial stakeholders in the selection regime. Other new bodies are charged with important coordinating functions, including the Judicial Diversity Forum, the Judicial Diversity Taskforce and the Judicial Diversity Committee of the Judges’ Council. The UK Parliament also takes a greater interest in the appointments regime.⁸ This changed terrain inevitably influences the tenor and direction of debates about diversity, although as shall become evident across this collection the new selection regime in England and Wales is marked by continuity as well as change (for example, the continued dominance of a traditional understanding of ‘merit’).

The JAC has a heavy workload, overseeing the recruitment of between 300 and 800 judges each year. The exact number of vacancies varies from year to year, depending on the number and type of competitions that the JAC is requested to run. (See Appendix I for a breakdown of the number of recommendations that the JAC has made over its first decade.) Partly because of this large and variable workload, it has a relatively large membership by international standards, with 15 members: seven holding judicial office, one of whom is a magistrate, two lawyers, and six lay people, one of whom serves as the JAC’s chair. More information on the identity of the commissioners is set out in Appendix II. In contrast to the informality and secrecy that for a long time characterized the selection regime run by the Lord Chancellor, the JAC runs a much more formal and relatively inclusive regime. Its recommendations for judicial office are made following open competition, with the process of evaluating a person’s suitability for judicial office requiring the input of multiple actors at several different stages. The JAC is under a statutory duty to select candidates ‘solely on merit’,⁹ but where two or more are assessed to be of equal merit then it can recommend a candidate on the basis of increasing diversity on the bench.¹⁰ We explain the selection processes overseen by the JAC in more detail in Appendix III, including the slightly different process for senior appointments, but for now it suffices to offer a brief summary of a typical selection exercise run by the JAC.

At the outset of a selection exercise the Lord Chancellor is required to consult with the Lord Chief Justice. Supported by their officials, the Lord Chancellor and Lord Chief Justice discuss the details of the job description. This discussion is informed by advice and data from H.M. Courts & Tribunals Service about the judicial vacancy in question. Upon receiving a vacancy request from the Lord Chancellor, the JAC runs the process (advertising the post; compiling a short-list; running a selection day at which the short-listed candidates will be interviewed and may also be required to participate in role-play activities; and then recommending a single candidate for each vacancy). Despite its name, the JAC was created as a recommending body, not an appointing body. It makes initial recommendations for judicial office, with the final say whether or not to appoint lying with, depending on the exact vacancy in question, the Lord Chancellor (for the High Court and above), the Lord Chief Justice (for all lower level courts) or the Senior President of Tribunals (for most tribunal vacancies). Before 2014, the JAC made all of its recommendations to the Lord Chancellor. However, the Lord Chancellor’s role was diluted by the Crime and Courts Act 2013, which transferred the final say over appointments to the lower courts to the Lord Chief Justice and over most tribunal appointments to the Senior President of Tribunals.¹¹ As a result, the Lord Chancellor has the final say over only five per cent of all selections. Between 2006 and 2016, there were only six occasions out of nearly 5,000 appointments where the final appointing authority did not accept the JAC’s recommended candidate. In other words, the JAC’s recommendations were accepted 99.9 per cent of the time. What this means is that although created as a recommending body, the JAC effectively functions as an appointing body.

Even though the terrain of judicial appointments has been reshaped since 2005, there has been significantly less change in the composition of the judiciary itself, especially at the highest echelons of the courts in England and Wales. It is true that there has been progress in the lower courts and the tribunals. For example, more than half of both court judges (51 per cent) and tribunal judges (64 per cent) under the age of 40 are female,¹² with 1,800 women appointed to judicial office between 2006 and 2016.¹³ Particular progress has been made in the two crucial entry-level positions to the judiciary; namely, Recorder and Deputy District Judges. For example, there has been an increase over the last decade in the proportion of female Deputy District Judges from 25 per cen...