By: SAILESH MEHTA
The Law Society of England and Wales, which represents 140,000 lawyers in the country, recently said there was virtually no chance of achieving a court system that reflected Britain’s diversity because the process of recruitment even who claims to achieve this goal has failed.
The Law Society’s first black president has expressed frustration with a judicial appointment system that appears to have done little to ensure diversity among judges.
In the higher courts, where the most important and law-defining decisions are made, only 29% of judges are women and only 4% are black, Asian or from ethnic minorities.
In the UK’s highest court, the Supreme Court, there has never been a black or Asian judge. It’s likely to stay that way for some time, although recently appointed Chief Justice Lord Reed said in his first interview that the lack of diversity within the Court was a situation that would be “shameful if it persists”.
Thirteen years ago, a report by the Judicial Appointments Commission, chaired by Lady Prashar, acknowledged that statistics on the number of women and ethnic minority judges were worrying.
Twelve years ago, the government-commissioned Neuberger report made 50 recommendations and ran to 112 pages. He concluded that the lack of diversity among judges affects the experience of people using the courts and limits judicial perspectives on critical legal issues.
It was launched with a fanfare of promises to achieve some equality among judges.
The report confirmed, and politicians accepted, that many barriers to greater judicial diversity were systemic – the talent was there, but the system prevented it from being appointed.
The crusty, conservative legal profession is slower to change than most. It has been rocked by allegations of racism and sexism over the past three decades. Many BAME judges have expressed frustration with the lack of progress, a climate of intimidation and the slow pace of change.
BAME lawyers and judges continue to face daily racism inside and outside the courts. Some have filed complaints in the labor courts. Others have simply resigned from their posts.
eastern eyeCampaign journalism revealed the depth of the problem. Of those in senior judicial positions, the majority have had private training and attended Oxford or Cambridge University.
Elite law firms or “Magic Circle” law firms lure them in, before the conveyor belt propels them into the seat. This was the origin of a self-perpetuating ruling class.
The Eton/Rugby/Oxbridge factory produces identical judges, politicians and business leaders generation after generation, who then appoint others in their image. It takes time and effort to change such a well-oiled machine.
The problem with the judge making machine is that it creates judges with very similar backgrounds and very similar opinions. In the most important court cases, judges don’t just interpret the law, they create new laws.
They are required to bring judgment to a thorny mix of legal, ethical and political issues.
The most important cases would have been tried differently 100 years ago because society thinks and lives differently today, and judicial thinking reflects the change.
Indeed, judges bring their worldview to the issue – a view that is shaped by their upbringing, upbringing, and the people they grow up with.
But if they all have middle-class white parents, went to the same five public schools, the same two universities, the same 10 law firms, then their judgments are likely to be skewed relative to the rest of society.
There is then a danger that their judgments will be disconnected from, or worse still, antagonistic to the society they serve. So where do we go from here?
The starting point is to consider the composition of the Judicial Appointments Commission (JAC). Although it has done some good over the past 10 years, it has not sufficiently delivered on the promise of a diverse justice system.
A new president and new members who would not be chosen from the usual “good and big” stable would be a start.
The JAC needs fresh ideas and fresh blood. She must recognize her flaws. The system of “secret polls” has been discredited and must be abolished from any appointment process.
The growing cases of complaints of unequal treatment by BAME judges must be dealt with quickly and sympathetically before discontent escalates and infects the whole system.
There are plenty of talented lawyers out there who could be appointed if the appointment process were improved and unfair barriers removed. Within the judiciary there is a small but growing group of extremely talented and qualified people.
They should move up the ranks as soon as possible – the more visible their progress, the more it will encourage others to apply.
It is in our interests that the best in their profession be appointed judges.
The bar must remain high. There is a wealth of talent among Black and Asian communities that is overlooked. Our justice system will improve if it better reflects the society it serves.
Sailesh Mehta is a lawyer at Red Lion Chambers. He was appointed recorder (part-time judge) of the Crown Court in 2009. He is a past president and founding member of the Society of Asian Lawyers, as well as a founding member of the Bar Human Rights Committee.