Apply key section of Equality Act to improve judicial diversity, say peers

Peers have called for a key part of the Equality Act 2010 to be applied to judicial appointments in a bid to create a more diverse judiciary.

In a report published this week the House of Lords Constitution Committee acknowledged that appointment based on merit was vital and should continue.

But the peers added that s. 159 of the 2010 Act would “allow the desire to encourage diversity to be a relevant factor where two candidates are found to be of equal merit”.

Arguing that a more diverse judiciary would improve public trust and confidence in the justice system, the committee also recommended that:

• The Lord Chancellor and Lord Chief Justice should be placed under a duty to encourage diversity amongst the judiciary. This is already the case for the Judicial Appointments Committee (JAC);
• There should be a greater commitment on the part of the Government, the judiciary and the legal professions to encourage applications for the judiciary from lawyers other than barristers. “Being a good barrister is not necessarily the same thing as being a good judge”, the report said;
• The introduction of targets for the number of Black, Asian and Minority Ethnic (BAME) and women judges should be looked at again in five years “if significant progress has not been made”;
• The Lord Chancellor’s role in individual appointments should be limited. The power to reject nominations for posts below the High Court should be transferred to the Lord Chief Justice;
• A system of formal appraisals for judges should be introduced;
• The retirement age for the most senior judges – in the Supreme Court and the Court of Appeal – should be raised to 75. The age for all other judges should stay at 70.

The committee ruled out suggestions that judicial candidates should be subject to US-style pre- or post-appointment parliamentary hearings.

“Political considerations would undoubtedly influence both the parliamentarians chosen to sit on the panels and the questions put to candidates,” it said.

The report cited statistics showing that in 2011 only 5.1% of judges were BAME and just 22.3% were women.

Baroness Jay, a member of the Constitution Committee, said: “It is vital that the public have confidence in our judiciary. One aspect of ensuring that confidence is a more diverse judiciary that more fully reflects the wider population. That even by 2011 only 5% of judges were from minority groups and only 22% were women suggest there is still work to be done in this area.”

She added that support for flexible working within the judiciary would be a good start to encouraging diversity.

“It is also important that solicitors, who are a more representative group of society than barristers, do not face any impediments to a career in the judiciary,” the Baroness added.

JAC Chairman Christopher Stephens said judicial diversity was increasing but faster progress would take “concerted and innovative action” from many different bodies, including the legal professions and the judiciary itself.

He added: “I am pleased to see the Committee recommend extending opportunities for flexible working and career breaks and increasing judicial appraisal. We have already planned to review the new protocol agreed with the senior judiciary for designating Deputy High Court judges and will do so within three years. The JAC is also considering how section 159 of the Equality Act could work in practice.”