Judicial Diversity

2016 May ZA
5. What measures have been taken in recent years to increase the diversity of the
judiciary and how successful have these measures been?

ZB

5. “We are persuaded that a quota system is now necessary to ensure the fair and
proportionate representation of women and other minorities at senior level in the
judiciary.”
Explain this statement and say whether you agree or disagree with the proposal for
reform.

2017 May ZA
5. “The only way to achieve a diverse judiciary within the next 30 years is to introduce
positive discrimination – or some other special provision – that takes into account
gender and ethnicity.”
Explain why positive discrimination might be necessary to increase the diversity of the
judiciary and describe what diversity initiatives have been introduced in recent years and
evaluate the progress these initiatives have achieved.

ZB
5. “The judiciary must be truly open to everyone of the requisite ability and we are
hopeful that the variety of initiatives being actively pursued will bring more diversity to
the judiciary, more quickly.” (Lord Chief Justice, 2016).
Describe why the judiciary is said to lack diversity and explain what initiatives have been
introduced in recent years and evaluate the progress these initiatives have achieved.

2018 May ZA
7. Explain the ‘diversity issue’ that is said to exist in the judiciary and discuss the
attempts to solve this issue.

ZB
7. Explain why diversity among the judiciary is said to contribute to its legitimacy and
discuss the extent to which the judiciary in England and Wales can be rightly described
as ‘diverse’.
General remarks
This question relates to Chapter 5 of the module guide. It required: (1) an explanation of the
term ‘diversity’ in the context of the English judiciary; (2) a discussion of how diversity can be
said to be important in terms of legitimacy; and (3) a consideration of whether the English
judiciary can accurately be described as diverse.
Law cases, reports and other references the examiners might expect you to use
This would vary significantly depending on the approach taken to the question, but the
Constitutional Reform Act 2005, the Judicial Appointments Commission and equal merits
provision in the Crime and Courts Act 2013 would likely be appropriate in most answers.
References to the Essential and Further
readings at Section 5.10 of the module guide would also be anticipated.
Common errors
The most common error was to ignore the word ‘legitimacy’ in the question and/or to focus on
the system of judicial appointments before and after the Constitutional Reform Act 2005.
A good answer to this question might…
start by explaining what a diverse judiciary might look like and how, according to some
viewpoints,most notably Ewing, diversity within the judiciary is important because institutionally
the judiciary exercises legislative power as well as power over the fate of citizens in disputes
and criminal matters. This might lead to a discussion of diversity in terms of a judiciary that is
reflective of the society it serves and, in examining whether the English judiciary can be
described as diverse, factors of race, gender and social background might be noted as features
of under-representation. Other issues such as sexual orientation, age, educational background
and non-barrister background could also be considered as well as the interlinking of these
strands. This could lead to a discussion of the attempts that have been made to increase
diversity, starting in the 1990s with the Constitutional Reform Act 2005, the appointment of the
Judicial Appointments Commission and appointments based solely on merit. The diversity
statistics over the last decade show a modest increase in the numbers of women appointed to
the judiciary but less progress in terms of BAME and non-barrister background and this would
lead to the conclusion that the English judiciary is becoming more diverse but at a somewhat
slow pace.
2019 May ZA
11. ‘Increased diversity in the judiciary will positively shape the development of the law. It
is important that justice is not only done by, but can be seen to be done by, a judiciary
which is more reflective of society today.’
Describe what a judiciary ‘reflective of society today’ might look like and discuss what
positive legal developments a more diverse judiciary might achieve.

ZB
Question 11
‘The Judicial Appointments Commission, the senior judiciary, and the legal professions
have all expressed their commitment to a diverse judiciary, but despite this commitment,
little has changed.’
Describe the attempts by the Judicial Appointments Commission and others to create a
diverse judiciary and discuss why these have not resulted in significant changes.
General remarks
The question considers the topical matter of diversity in the judiciary and asks for an account of
what has been done to try and create a more diverse judiciary and an exploration of why,
despite these attempts, the judiciary remains relatively homogenous.
Law cases, reports and other references you might use
The Essential and Further reading at 5.10 in the module guide.
Common errors
The lack of up-to-date knowledge was a particular issue. Many candidates noted that Lady Hale
was the first woman to be appointed to the Supreme Court but failed to mention that she is also
the court’s first woman President and that she was joined by Lady Black in October 2017 and
Lady Arden in October 2018. Many answers restricted the idea of diversity to the gender
imbalance in the judiciary.
A good answer to this question would…
Perhaps start by outlining what is meant by a diverse judiciary in terms of representation of
society, equal opportunity and the legitimacy of the judiciary and underrepresentation on the
basis of race, gender and social background. An account of what has been done to create
diversity among the judiciary would include discussion of the Judicial Appointments Commission
(JAC) noting that the JAC recommends for appointment rather than appoints and that it selects
solely on merit but is required to encourage diversity in the selection pool but the equal merit
provision in the Crime and Courts Act 2013 enables the balance to tip in favour of
underrepresented groups (gender/race only). A discussion of why there have been no
significant changes might note some signs of diversity in terms of gender and race and excellent
answers would note that the women in the Supreme Court are all white and primarily from the
Oxbridge backgrounds of their male peers. Reasons for the slow pace of change would include:
experience deficit; self-exclusion; selection bias; the illusion of merit as concept for selection.

11. The Judicial Appointments Commission, the senior judiciary, and the legal
professions have all expressed their commitment to a diverse
judiciary, but despite this commitment, little has changed.’
Describe the attempts by the Judicial Appointments Commission and others to create a
diverse judiciary and discuss why these have not
resulted in significant changes

1. How has the JAC attempted to increase diversity?

2. The movie made
3. All that he judiciary has done to ensure diversity
4. Selection bias
5. Different legal professions
6. Solicitors and other legal professionals
7. Lord Philip / Sumption
8. Perspectives differ
9. Quality wise how it affects
10. Why haven't the remedies brought about significant changes
11. Bring statistics to show the lack of changes
12. Experience deficit
13. Selecting people who resemble them a lot
14. Although these changes have been brought about, the core issues have not been
addressed
15. No part time options or flexible working patterns
16. No profound changes brought it
17. So other options have to be considered
2020 June ZA
2. ‘The judiciary must be representative of society, not just one section of it.’
Explain why judicial diversity is important and discuss the extent to which the judiciary
in England and Wales can be described as diverse.

ZB
2. ‘The progress made in achieving a diverse judiciary has been slower than is
necessary. We must work to achieve a judiciary that is more closely representative of
society.’
Explain why the judiciary should be representative of society. Discuss the steps that
have been taken to work towards a more diverse judiciary, and the extent to which these
have been successful.

2022 May ZB1

4. ‘A diverse judiciary is not an optional extra. It is a necessity and one the judiciary is
working hard to achieve.’
Discuss.

1. Necessity
2. That the judiciary is striving hard to achieve
3. How successful have they been in the attempt to achieve diversity
4. Explain judicial diversity
5. Why is judicial diversity important?
a. Contributes to the legitimacy of the judiciary
b. Judiciary is unelected so there must be a certain element of legitimacy
c. So a representative judiciary reflective of society, will contribute to legitimacy -
Ewing - cite
6. Judicial selection process is important because that is the
7. Increasing diversity in the judiciary is also important because it is what brings the
confidence of people in and as cited by the department of constitutional affairs in 2004
8. As they are unelected there must be a source of legitimacy and this is brought in by
diversity. A representative judiciary that is reflective of the society as a whole contributes
to legitimacy (ewing - says that the judiciary has to be representative).
9. The process of judicial selection is important because it is here that we can ensure that
we appoint candidates to office who are reflective of the society that they serve.
10. Increasing diversity in the judiciary is also important because this is what brings the
confidence of the people and this is as cited by the department for constitutional affairs
2004 (increasing diversity in the judiciary paper). In other words, if there is no diverse
judiciary people are not going to be confident in a judiciary which is not diverse. They
may feel like they are not being represented by that particular judiciary. 13.10.2 Society
must have confidence that their problems will be understood and solved accordingly.
11. Also important because it increases the quality of judicial making. Discuss under 13.10
12. Reasons why judicial diversity is important
13. Efforts that have been made by the UK judiciary to increase diversity and whether it has
been successful
14. Diversity issue in the UK at the moment
 a. Historically the composition of the judiciary included well educated, middle class,
white male barristers
b. In the recent decades, the eligibility criteria has been broadened and the
profession has now been diversified
c. However, since the 1990s, it has been recognized that despite these efforts, the
diversification of the judiciary has been a slow process
d. Cite lord chief justice lord taylor - comment in 1992 - SJ Pg 241
e. Bring in examples regarding any possible high level judicial appointments in the
recent years - pg 242
f. Mr Justice Singh , Lady Hale, Lady Black, Lady Arden , Lady Rose, Dame
Victoria Sharpe
g. Some progress in increasing diversity, but it is a slow process
h. JAC - they tried to achieve diversity by making amendments to the judicial
appointments procedure- fair and non discriminatory processes, advertising and
outreach, working with others to break down barriers
i. Every year judicial diversity statistics bulletin is published
j. This says how diverse the appointments are for the given year in the courts
k. Done under the headings of gender, ethnicity , age and professional legal
background
l. Cite 2023 statistics
15. The committee that present their findings in may 2011 based on which the crimes and
courts act 2013 was introduced
a. 3 main changes brought under this act
16. Subject guide stats note down
17. How were the changes implemented?
18. Diversity continues even after implementing the recommendations
19. Lack of progress since their previous report - committee in 2017 - pg 248
20. Lammy review
21. Advisory panel on judicial diversity
22. Judicial diversity forum and their given recommendations
23. Discuss the equal merit provision under the crime and courts act 2013 - has been
heavily criticised
24. No subsequent legislation that has amended this legislation
25. Also appreciation and criticism
26. Why has there not been more progress in increasing diversity
a. Self exclusion
b. Selection bias
c. Experience deficit
d. The concept of merit in action
27. There is success to an extent, but there is a long way to go
28. A work in progress

ZB2
4. ‘Over the past ten years important steps have been taken to improve diversity in the
judiciary. However, progress has been too slow, and interventions have, to date, been
insufficient.’
Discuss.
9. ‘Merit as the criterion for judicial appointment is doomed to fail. Only a quota system
would achieve a diverse judiciary.’
Discuss.

1. Intro
2. How diversity legitimises the judiciary
3. A little bit of its past
4. Pale male and stale with similar SOCIAL backgrounds
5. JAC
6. Steps to ensure the diversity
7. JAC will make appointments based on merit only - good character , diversity t
8. After the CRA 2005
9. Lady Hale
10. New appointments
11. Based on merit - some form of success
12. LAdy justices
13. Diversity has ben a question because it can be used
14. All the committees
15. Choose and say the measures taken by the committees
16. 2023 - bulletin statistics
17. Merit has the criteria needed
18. 20 years since the CRA 2005 was passed and thee JAC wa established
19. But not much has changed
20. 20 years on we haven't gotten any improvements
21. Quota system
22. Is it better

The judiciary is the collective name given to the judges of the United kingdom. They are
showcased to the public as being in senior offices within the legal system of the state, and
thereby making decisions with regards to matters of law and developing precedents. As such,
the term is an umbrella one, including all kinds of offices, not simply the judges alone. Other
characters also play a part in the system when looking at it as a whole, such as magistrates and
other lay people who are not legally qualified. In considering the judges within the system, it
includes the Justices of the Supreme Court, the Lords and Lady Justices of Appeal found in the
Court of Appeal, the puisne judges of the High Court, Circuit judges, Recorders and District
judges. Further, these judges may be holding certain important offices such as that of the Lord
Chief Justice, Master of Rolls and Presidents of certain divisions. When considering the weight
of such offices, it is important to consider how they are selected and appointed into office, which
requires an understanding of issues such as diversity within the judiciary.

The details of the selection process itself may be a foreign concept to the public, while some
may have a special interest in it, such as academics and the media. Those who are aware of
the power wielded by the judiciary, and that they are an organ of the state, know that they are
not elected to office, unlike other government officials, showcasing a democratic deficit. Despite
the lack of democratic appointments, it is of utmost importance that the public has full
confidence in the judiciary, in order to legitimise their offices. AharonBarak provides that the
judiciary is not the sword or the course of the nation, which are both the executive and the
legislature, and the only baksing they have is the support of the public. Brian Tamanaha
provides that the level of power judges have in terms of interpreting statutes, applying the law
and deciding cases is immense, which makes their selection and appointment all the more
significant.

Well qualified lawyers are selected to be a part of the judiciary to ensure its quality and to
uphold it. Regardless, the important issue now is not of quality, rather the fact that the judiciary
does not seem to be representative of modern society, the one it represents. Ewing (2000- 01)
reasons that one of the key requirements of any body that exercises power is for it to be
representative of those people. Though judges cannot directly be a representation of the
community, they should be representative in terms of race, gender and social and professional
backgrounds. As such, an important keystone of judicial appointment is that it be representative
of the wider society in order to be a legitimate body of authority. An unrepresentative body may
not necessarily do a bad job, but would suffer their legitimacy being undermined.

Prior to the passing of the CRA 2005, in 1990, the Courts and Legal Services Act (CLSA) 1990
was passed, when judicial appointment was only limited to barristers who were qualified and
had practised for a period of time. The belief behind it was that work as an advocate was the
best way to train to become a judge. Following this, the traditional approach was developed,
which was the Lord Chancellor making appointments by invitation. Qualified and potential
judges would be called upon to serve rather than being selected through application. Who was
to be selected was determined based on consultations and recommendations by other
members of the Bar. The process was largely opaque and did not provide opportunities for
others to apply, being devoid of applications and advertisements.

Criticism of this was the lack of transparency, which was that they were all similar; pale, male
and stale, without any sort of diversity within the system. That is, those part of the system were
mostly old, white males who had been educated in private schools. Until 2004, all members of
the House of Lords were male, when Baroness Hale of Richmond was appointed. In 2006, the
system was subsequently changed, where the CRA 2005 established a new JAC, to take over
these duties, following a proposal in 2003.

The aim was to set up an independent commission, with input by lay people as well, even
though it was treated by some level of apprehension by some, as to whether it would be the
best solution. Lord Falconer issued a paper in 2003, setting out the grounds for this body, citing
that there were two reasons for it; emphasising the constitutional division between the executive
and judiciary and the increase in diversity of the judiciary. He also takes in the democratic
aspect of it, especially the fact that a Government minister should not be the sole selector of
judges and their appointments. Although the Commission mentions appointments, they only
make recommendations of potential candidates, while the Lord Chancellor is required to
approve them.

The Judicial Appointments Commission was established with the aim of selecting candidates
for judicial office to the High Court and those below. The commission is made up of both lay
people and judicial entities, forming a 14 - member panel led by a lay chairperson. Their three
main obligations, codified by statute, are to select solely on merit, appoint those of good
character and to try and increase the diversity of the judiciary as much as possible. The
Commission was not given statutory footing simply to relieve them of responsibility, and enable
them to further diversify the judiciary. Their duty, simply put, is to widen the candidate pool for
judicial appointments.

The fact that appointments are made based on merit, is practised to ensure that qualified
people are only selected for the role based on their level of experience and their skills. This
would require the profile of the candidate to be matched against the characteristics needed for
the office to see if they are compatible. There are five selection criteria mainly looked for;
intellectual capacity, personal qualities, ability to understand and deal fairly, authority and
communication skills and leadership and management skills, all required to tackle the job
efficiently.

Although it has been provided that the selection process by the Judicial Appointments
Commission is quite a significant one considering the weight of the option, the process is not so
complex,and is rather transparent, being put up on its website as well. The openness of the
process provides the candidates as well the required information in relation to their potential
selection. It starts off with application forms, references, shortlisting and interviews, followed by
statutory consultations, role plays and character checks. The completion of such steps enable
the Lord Chancellor to receive a report based on all the findings, if the appointment is to a High
Court, or the Lord Chief Justice if the appointment is for courts below the High Court, or the
Senior President of Tribunals, for an appointment to a tribunal.

The aims of the JACK are apparent by the steps that they take , which is to make the process of
selection a transparent one along with finding more appropriate candidates for offices. In order
to widen the scope of potential candidates, they have initiated outreach and educational
programmes to encourage and educate people of judicial appointments in order to get more
applications, especially from groups who are under-represented within the judiciary.

Such groups may be identified as being women, BAME (Black Asian and Minority Ethnic)
applicants, solicitors, and those with disabilities. The objective is to ensure more of these
candidates applied for office, in order to diversify further the judiciary. Although this has been a
well criticsized objective, certain reforms have indeed been pursued in order to rectify the
situation, which will be discussed in depth later on. A Selection Commission is convened by the
Lord Chancellor when applying candidates to the Supreme Court, including senior members of
the judiciary judicial appointment bodies, to follow their own procedures in selecting
appointments.

Certain concerns have been expressed regarding the way in which such judicial offices are
filed. Significantly, the level of recruitment of the judiciary itself is one of concern. Lord Thomas
has provided in his 2016 report to the Parliament that difficulties are being faced in finding well
qualified and suitable candidates for these offices. Some of the reasons for such a stagnation,
being the issue of morale as well that of the pay restraint. This was also agreed upon by the
House of Lords Constitution Committee in 2017, voicing their concerns about recruitments to
the bench.

There are however, certain alternatives to the process of appointing judges as such, as seen in
civil law jurisdiction where the judges are selected from recent graduates of law based on
examinations and tests. In common law systems such as that of ENgland and Wales, the strict
requirements that are imposed make it difficult for judges to be appointed in office any earlier
than the age of 50, whereas judges of 20s and 30s may be found within civil law systems.

These have been categorised by Lady Hale as the different ways to appoint a judge; career
judiciaries in the civil law system, common law systems, the system prevalent in England prior
to the CRA 2005, which is the ‘tap on the shoulder’, election by popular and the independent
merit- based selection currently operative in the UK. She explains these procedures in her 2017
speech “Judges , Power and accountability”, where she also talks about the reasons for
diversity as being democratic legitimacy, fairness, equality, the exploitation of talent and the
quality of decision making which is influenced by personal views and characteristics. She
explains, based on the view o f Beverley McLachlin, the long-serving Chief Justice of Canada,
how judging is influenced by the experience of leading one’s own life.

Drawing examples from the civil law nation of Germany, where judicial selections are made from
a category kept separately called the ‘career judiciary’. Those hoping to apply for higher offices
are expected to sit an examination for a professional qualification and study specifically for the
office. This pathway is for all those who are hoping to become a solicitor, barrister, judge or
prosecutor. Appointment as a judge will depend on their performance at these tests.

Further, in 2012, the House of Lords Constitution Committee took into account some
alternatives, such as the use of pre and post appointment hearings for the senior judicial posts
or the involvement of the Parliament in the process. This was considered in cases such as R
(Miller) v The Prime Minister and Cherry v Advocate General for Scotland 2019. However, it was
countered that these would put judicial independence at risk, in which case the appointment
process should be kept separate from politics. Although the career judiciary system of civil law
systems was considered bridal, the idea was later rejected.

Since judges are generally appointed while being a practising barrister, there appears to be an
amount of training that they are required to go through. The Lord Chief Justice takes up
responsibility for the training of the judiciary as per the Constitutional reform Act 2005. The
training done by the Judicial College is made up of induction courses and continuing courses
fen by the judiciary themselves. The College was established under the CRA 2005, prior to
which there existed the Judicial Studies Board and the Tribunals Judicial training Group. Prior to
all of this, there was only menial training given for future judges, which, in contrast to systems in
nations such as Germany with a career judiciary, is very minimal.
Coming to the essence of the question which is diversity, one must realise what exactly is
meant by the issue of diversity. The demographic of the nation must be reflected in the
composition of the Bar, in order to provide the image of a legitimate and representative body.
Since the 1990s, although there has been increasing eligibility for office as well as diversity, the
changes have been slow and only at entry level, not so much at the higher levels.

In 1992, Lord Taylor, the Lord Chief Justice at the time, provided that although the lack of
diversity was identified, it should be improved within the next 5 years, however, some would
argue that the required amount of change is not substantial enough. Although recent times have
indeed seen developments, with the appointment of Mr Justice Singh as the first BAME judge in
the Court of Appeal, the appointment of Lady Hale as the first female President of the Supreme
Court along with Lady Black, Lady Arden and Lady Rose as female Justices of the Supreme
Court and Dame Victoria Sharp as the first female President of the Queen’s Bench Division,
progress is still quite slow.

Although the issue is debated much, the question is why it is given the weight it is. The
Department for Constitutional Affairs published a paper in 2004, “Increasing Diversity in the
Judiciary’, explaining the matter. In the view of the government, society should be confident that
the judiciary can understand their problems and provide for it accordingly. In order to be so, the
judiciary should be representative of all types of people that make up the society. To make
appointments more diverse, three factors are taken into account; equal opportunities provided to
all, the legitimacy of the judiciary itself and the quality of judicial decision making.

Taking into account equal opportunities, all those who are qualified should be given the
opportunity to apply. Applicants should be selected solely based on their merits without any
discrimination on the grounds of sex, gender, or other factors. Any such behaviour of not
appointing people of such groudon would raise allegations of a biassed selection process.
Staying true to the concept of human equality, selection should also be vast, diverse and
nondiscriminatory. Further, in considering the issue of legitimacy, the fact is that the lack of
diversity would affect it. A democratic society would expect an unelected body to be
representative, instead of being a narrow representation of a particular group of society, with
wide powers. The democratic deficiency of the judiciary may cause reduced public confidence,
which may lead to a fall in confidence in the legal system as a whole. Paterson and Paterosn
provide that such diversity is a constitutional principle of its own, as it should show fairness.
These arguments were also voiced by Lady Hale in her Fiona Woolf Annual Lecture in 2014.

In addition to these, another factor playing in this matter is the capability of judges to consider
varying legal issues of different sections of society when they themselves are drawn from a wide
variety of backgrounds. Their perspectives, then, on legal issues of significance will be a
balance done rather than a biassed opinion, influenced by their own upbringings. President
Obama commented in 2009, during the nomination of the first Hispanic appointment to the US
Supreme court, Justice Sonia Sotomayor, that in certain legal issues, it is of critical importance,
what is in one's heart.
Sir Terence Etherton, the Master of Rolls, one of the very few senior judges who would
comment on their sexual orientation on a public forum, has also committed that it is important to
have judges of all backgrounds as their personal outlook and views would inevitably influence
their actions.

One of the main issues raised now is whether the progress on this matter is too slow. The JAC
strategies tackle the matter using one of three factors; fair and nondiscriminatory process,
advertising and outreach and working to break down barriers. The Judicial Diversity Statistics
Bulletin is published annually, showcasing the statistics of diversity in terms of appointed judges
in courts and other non -legal members. The statistics are provided in terms of gender, age,
ethnicity and professional backgrounds for easier perusal. The latest statistics are those of the
year 2023, updated in September of 2023, where it is seen that women make up 40 percent of
barristers, 53 percent of solicitors, 77 percent of CILEX individuals and 42 percent of all judges,
which seem to be quite a representative statistic and there is not apparent disparity, visible from
the fact that 50 percent of the eligible pool of candidates account for women. In considering the
ethnicity, there has of course been a gradual increase, with the ethnic minority proportion
increasing within barristers from 13 to 16 percent, 15 to 19 percent in solicitors, 5 to 11 percent
of CILEX individuals and 7 to 11 percent of all judges, with no evidence of any disparity in terms
of ethnicity.

Although the statistics show a reasonable amount of improvement, it is still considered to be

slow progress. Since the establishment of the JAC, only three women have been pointed to the
supreme Court; Lady Black in 2017, Lady Arden in 2018 and Lady Rose in 2021.Lady Hale,
who until her retirement in January 2020 was President of the Supreme Court, joined the House
of Lords in 2004, which was before the establishment of the JAC in 2006. At the beginning of
2013, there were still only four Lady Justices of Appeal, although later in that year an
unprecedented number were appointed (a further three). There are currently 11 Lady Justices of
Appeal (out of a total of 36 Lord and Lady Justices of Appeal).

Individuals other than judges have also been appointed to the Supreme Court as seen from the
appointment of Jonathan Sumption QC and Professor Andrew Burrows QC, the first academic
to be appointed a Justice, noting that neither of them have ever held a full -time judicial role.

There have of course been attempts to improve the diversity within the judiciary, starting with
the Advisory Panel on Judicial Diversity, which was setup by the Lord Chancellor in
2009,disappointed with the lack of results. The objectives of the panel were to identify the
obstacles to ward judicial diversity and to make recommendations to fix the situation. Chaired by
Baroness Neuberger, the panel reported in 2010 and put forward certain measures. Their view
was that no single recommendation would solve the issue, but rather a coordinated combination
of all the recommendations would be capable of bringing about some sort of change. Some of
the recommendations were the concept of a career judiciary, the encouragement of young and
underrepresented individuals to consider a career as a judge, the certain of a Judicial Diversity
Taskforce to oversee future initiatives and to “debunk” any myths prevailing about the working
environment of the judiciary. These were indeed accepted by the government, but there is not
much further to go on about.
In addition, the House of Lord Constitution Committee, in 2011, announced their inquiry into
these appointments to focus on more than just the issue of diversity. They aimed to look into
whether the system was fair and transparent, whether it would give an independent judiciary,
whether candidates are selected based on merit, and whether it was a sufficiently diverse arena.
Following their report in 2012, they made recommendations such as that the senior judiciary
should not select their successors, and also that the increase in diversity was important to
improve public confidence. The latter, as they explained, could be achieved by implementing
certain policies, such as the recommendations of the Neuberger Panel, including lay people in
the selection panel of judicial offices, ensuring the selection panels themselves are diverse and
that the government should set certain targets for the JAC if a certain level of diversity is not
reached within the next few years.

Some of these were put out through the Crime and Courts Act 2013, which include senior
judges not being able to select their successors, the Lord Chief Justice directly appointing
judges below the High Court level and the introduction of more flexible working patterns for the
High Court. The follow up report in 2013 showed a disappointing result caused by a lack of
progress. Progress was acknowledged, but was determined to be not sufficient enough.

In September of 2017, the Lammy review criticised the fact that the criminal justice system was
lacking BAME judges, and conducted an independent review into the treatment and selection of
such candidates. The result was that the defendants were 20 percent BAME individuals, along
with 11 percent of the 16,000 magistrates and 7 percent of about 3000 judges, all within the
criminal justice system. This was suggested to be rectified to the JAC, by ensuring the
selections are more diverse and that the government should set a national target to achieve this
diversity by the year 2025.

Further the Judicial Diversity Forum also exists to bring together different institutions with the
aim of increasing diversity. Replacing the Judicial Diversity Taskforce, they are made up of
members of the JAC, the Ministry of Justice and the judiciary. Their first step was to implement
an education programme funded by the government to support potential future judges. It
involves under-represented groups as well, in order to try and help them overcome certain
barriers and enter the judiciary. The priority within the programme is given to BAME individuals,
solicitors, women, and those with disabilities.

The Equal merit provision is the method used to select judges where two candidates are
shown to be of the same level of merit, in which case they will be deleted with the aim of
increasing diversity. In April of 2014 the equal merit policy of the JAC was established which
was criticised for being used too cautiously. Although they had only been using it at the end of
the application process, it was explained that using it as the early stages of short listing would
reap better results. Although they have only implemented it based on gender and race, widening
the group would create more diversity. However, this is indeed a rather controversial issue as
women and minorities would feel that being appointed in such a manner would undermine their
talent. Those who agree with it do not believe it will bring much change as seeing two
candidates of the same level of merit would be a rare occurrence. This was counted by Lady
Justice Hallet who claims that there are instances as such, where they may be qualified in
different ways, but on equal levels.

Further, a quota system is also considered. Sadiq Khan, the Labour Shadow Secretary of State
for Justice in 2014, commissioned Sir Geoffrey Bindman QC and Karon Monaghan QC to report
on ways to further diversify the judiciary. The report was published in 2014, explaining their
recommendation of introducing quotas. It was said that it would essentially improve the diversity
of the judiciary by ensuring a fair and proportionate system. Lord Burnett opposed this, by
providing that judges who were to be appointed on this ground would lose legitimacy on the
abscess that was painted as simply ‘quota judges’. The fact that it is a controversial issue would
lessen its chances of implementation.

There have been further points touched upon by various individuals in lectures and reports. In
her lecture “Equality in the Judiciary '' in 2013, Lady Hale took the time to explain a few
‘uncomfortable truths’ about the state of the judiciary of the UK, which included the diversity
issue especially towards women and BAME individuals, as well as the issue of pay. She
explains how some may believe that changing the judiciary so extensively would lead to a vastly
different system, incapable of having the same success as others. The change in question being
more diversity in terms of gender, ethnicity and professional backgrounds. However, she does
note that many have now come to address this issue. Authors such as David Pannick in 1987
and Helena Kenedy in 1993 are some examples.

In April of 2017, JUSTICE published their report which was regarding the barriers faced by
women and those from ethnic minorities, with regards to being part of the judiciary. Their report
was brought in by a Working Party, which provided certain recommendations for the tissue such
as increasing accountability for diversity, external review of selection and the Senior Selections
Committee to work with the JAC.

In 2024, May, the JAC published its new set of strategies for the years 2024 - 2027. The aim of
the plan is to increase the diversity of the English judiciary. The four main aims provided was the
application of the best practices to select talented individuals, working with their partners to
attract well qualified applicants, ensuring that the JAC is recognised as the body that makes
independent and merit based appointments and to develop both people and tools to support the
implementation of their aims.

Despite the reforms undertaken, the question still prevails as to why the diversity of the judiciary
is still in the lows. The first issue considered there is the experience deficit, which is cited as
one of the reasons for the lack of women and individuals of ethnic minorities in high level
positions. The reasoning is that they are not qualified enough to be appointed, which worsens
the diversity issue. Lord Sumption, in a lecture in 2013 explains that this can be remedied by
positive discrimination, as the expectations laid on the JAC are unrealistic. He provides that the
main issue was the lack of talent, in which case the solution would simply be to wait for the rise
of talented and qualified women and individuals of minority ethnicities, which is referred to as
the trickle up effect. This was challenged by Lady Hale as being rectifiable by taking measures
to ensure that a specific proportion of these under represented groups are appointed.
Further, there may be self exclusion taking palace, which is individuals of under -represented
groups not being appealed to apply for judicial office, simply passed on the prospect of being
actually selected. In 2008, Genn conducted a research by which he found that some
well-qualified candidates do not apply as they believe that either they are not suited to be a
judge, would not enjoy the position or other personal beliefs. Additionally, women felt reluctant to
enter such a male-dominated environment.

There is also the occurrence of selection bias where those conducting the selection process
tend to point in their own image, thereby restricting any possible diversity within the system. This
practice of self- replication is common and occurs as the selectors tend to more appreciate the
characteristics that they themselves possess. Given the weight of the office and the importance
of subsequent appointments, judges are reluctant to choose those with non-traditional
characteristics and different backgrounds. Lord Neuberger agrees with Lady Justice Haller on
the matter that all judges should have diversity training solely because they also evaluate based
on similar characteristics.

Further, merit in action relates to the aim of the JAC to appoint based on merit. This maximalist
sense of merit is the concept that there will always be one individual best suited to a particular
post. The issue is the subjective nature of such merits and who determines them. White, male
judges educated in private school would select similar candidates, continuing the cycle of the
English judiciary becoming ‘pale, male and stale’. Patersppn and Paterson (2012) provide that
there must be a better system to determine merit in such selections.