Mr Justice Elephant in the room

‘Choose women, gay and disabled judges over white, middle-class men’

The Times reports: “Women, gays, ethnic minority and disabled applicants for jobs as judges should receive preferential treatment over white men in an attempt to make the judiciary reflect modern Britain, an official report recommended today. The proposals said the “positive action” should apply where two candidates for a judicial appointment are seen to have equal abilities. A report by an Advisory Panel on Judicial Diversity said that the judiciary has historically drawn its membership from well educated, middle-class, white, male barristers. It said that despite increasing numbers of women and ethnic minorities in the legal profession, this had been reflected only slowly in appointments to the judiciary.”

This hoary oldchestnut has been around for years.  I recall reading Professor Griffith’s book The Politics of The Judiciary many years ago.  As far as I recall, a central theme ofGriffiths’ book was the judges were ‘white middle class, middle aged and middle minded’.  It is quite possible, after a lifetime of enjoying red wine while reading about law, that I may have added the ‘middle minded’ bit.

I am all for diversity.  But… I am also all for getting the right people in the job and certainly would not wish to see the so-called ‘ethnic lesbian with one leg cliche’  being promoted to the judiciary ahead of better candidates simply to satisfy the needs of those who wish to mould and engineer society. The judicial appointment process has undergone significant change in recent years. Lawyers are coming from a wider cross-section of society.  Solicitors are now being appointed to the bench.  Lord Collins, an experienced law lord – now a Justice of the Supreme Court – is a solicitor. It takes time for changes to filter through. Women are far more numerous in the profession at the entry point than men.  When I was at law school in the mid-1970s the ratio was 90:10 approximately in favour of men.  Now it is 45:55 , possibly more, in favour of women. More students from ethnic minority families are coming into the law.

I am not in favour of any form of ‘positive discrimination’. It doesn’t work – it demeans the individual appointed, it demeans the process of fair appointments.  It may well have been unfairly weighted in the past, but this does not mean we have to counter past unfairness with a different kind of unfairness going forward. Best person for the job…whatever their gender, orientation, race, religion?  A wonderful ideal… but can we pull it off?

Some of the comments in The Times reflect public attitudes. I quote a couple as a taster….

Martin Carter wrote:
So having deceitfully engineered mass immigration and changed the make-up of the country, Straw’s friends now want to change the judicial appointments system to reflect the population.

Presumably the only reason they didn’t call for full-blown Sharia law was that the country isn’t quite ready for that just yet?

Roger HUDSON wrote:
I loathe with a loathing unsurpassed anything that smacks of ‘positive discrimination’ but, looking at some of the lunatic, irresponsible verdicts dished out by ‘white male’ judges, maybe your black, disabled lesbian couldn’t do worse.

12 thoughts on “Mr Justice Elephant in the room

  1. I’m not averse to some positive discrimination provided its applied on a broader base, and with very specific goals and time limits.

    If it was applied to individual roles – such that you could get two equally matched candidates for one post, and one loses out/succeeds solely due to their gender or ethnicity – I think that would be deeply unfair.

    By contrast, pooling roles – such that you have a pool of candidates for several roles, and where there are ties apply the positive discrimination criteria – might be a reasonable way to inject some diversity into the bench.

    There has to be a time limit, or (picking up on your example of the gender balance in the professions) you start imposing quotas per se, rather than fixing pre-existing perceived problems.

    Perhaps they should be looking at a better career path for the judiciary. If top flight solicitors could spend five or ten years on the High Court bench during their 40s or 50s, and then return to practice, you might well see a significant increase in applications from excellent female and BME candidates.

  2. Taking the last sentence, isn’t that the problem with positive discrimination summed up?

    “maybe your black, disabled lesbian couldn’t do worse”

    Of course not, but raise the issue and you start to see the judge as a black, disabled lesbian, rather than as a judge.

    If the government wants to get a more diverse range of people onto the bench, they’d be better placed to look at the barriers that exist far further back. Apart from Masters and District Judges, the majority of the judiciary are barristers. If you want to get the wider range of people in, the government needs to address the issue of the training being a high-cost, high-risk (5 applicants per pupillage, with 5 pupillages for every 2 tenancies) investment of time, effort and capital, with potentially (especially in crime) low returns. When you then look at the number of middle-class Oxbridge graduates in the profession, it’s no wonder people get put off.

  3. Those who become Judges should be chosen from the elite practising at the bar. As Ben has already said, herein lies the problem. The Bar is an “equal opportunities employer” but any old Tom, Devin or Ahmed cannot just “apply”!

    As for Martin Carter’s comment on Sharia law, what a preposterous immature suggestion. It reeks of the arguments proffered by the ill-educated masses and the “what next” brigade.. “What next, Sharia law over UK law?” Highly unlikely. Sharia Law already exists in Sharia courts in Britain and works as a separate institution to those who apply to it.

    There is nothing to suggest that having a more diverse judiciary will not lower the quality of the decisions made, provided that they go through the same selection process and meet the criteria the current judiciary face.

  4. It is no surprise that the Judiciary is dominated by white males. Looking at Chambers, particularly in London, they are dominated by students of Oxford and Cambridge regardless of the degree taken. The Chambers seem to think it is better to have a degree in geography from Oxford than a Law degree from Kings Collage London. So goes the judiciary, they employ reflections of themselves hence the boredom and fuddy duddy middle class stodgy reputation of the bench. When will we have a Chambers with the guts to employ the best person for the job not the university, when will be have a judiciary select a Judge that is best for the job regardless of colour, creed, sex or University attended? Who has what it takes to step up and be the first? Time to have some barristers with balls (oh you know what I mean) and Judges with street smarts a bit of dirt under the nails and a real life human.

  5. I would add to comment regarding “The Bar is an equal opportunities employer” Of course it is as long as you have an Oxbridge degree in anything, flower arranging will do, and you have a private education, you should be white, we do not care about sex but pretty would help, you can apply, pupillage is yours.

  6. When the Supremes and their tea-boy, Jolly Jack Straw, have snubbed white, male, Eton & Oxbridge educated, Sumption, for that most telling of inadequacies, of not being called Buggins, one fears that there is a very long way to go before anyone is going to believe that there is any sincerity in these messages.

  7. MAGISTRATES & OPERATION BLACK VOTE. That was the title of a blog I wrote January 22nd criticising the very divisive, in my opinion, organisation. So called positive discrimination is a bit like gravity….once one is in its grip it`s rather difficult to be extracated. Unfortunately with many Labour candidates relying upon so called ethnic minority votes for election or re-election blatant appeals to the basest manifestations of human nature will be difficult to stop.

  8. Presumably this affirmative action policy trumps sex and race discrimination legislation as a qualified derogation of some sort.

    If I’ve got this wrong, it might be because the only legal research I have done recently is watching the marvellous film ‘Legally Blonde’ and glancing through a second-hand Nutshells from 1995 for the duration of a good dump.

    You see, I lost motivation for becoming a qualified lawyer a while ago. I realised pupillage was and is reserved only for those with reedy figures who look good in a suit, can blather in public half-competently and who went to one of the Camford universities. None of these qualities vests in me. I am now an inappropriately-qualified binman. Sorry, off-topic…

    I say this: “You go, women and blacks! We won’t judge you if you judge us!”

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