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In the UK, Supreme Court justices are appointed by the Queen, after receiving advice from the Prime Minister, following recommendations by a panel of legal experts. However, it is often referred to as an old-boy network, and consists of mostly old, white men.
The president of the court sits on the selection commission. This president is now Lord Reed, who succeeded Lady Hale back in January 2020. Much like his predecessor, Lord Reed, who became a justice in February 2012, has stressed the need for the court to diversify.
Recently, in his first interview since taking office, Lord Reed stated that the courts’ lack of diversity “cannot be allowed to become shameful if it persists”.
The current statistics on diversity in UK courts, show a startling lack of representation across the board. Of the senior judges appointed to the High Court, or above, only 4% are from a Black, Asian or minority ethnic (BAME) background. Meanwhile, 7% of court judges, 11% of tribunal judges and 17% of non-legal members of tribunals, are from BAME backgrounds. Although there has been a 2% increase in each group since 2014, this is hardly an improvement.
Female representation within the courts is slightly better. Out of all court judges, 32% are women, and this rises to 47% for tribunal judges. Accordingly, back in 2019, Lady Hale, the former president of the Supreme Court, called on the courts to take note of the tribunal service’s diversity record and do more to reflect it.
When it comes to senior court appointments, female representation is still low, with women making up just 26% of the High Court. However, within the Supreme Court specifically, there has been some progress in terms of female representation over the last three years, with the percentage rising from just 8.3% to 25%.
Yet, elsewhere within the Supreme Court, the percentage of BAME justices remains at zero, and from 2018 to 2019, the percentage of BAME judges in the Court of Appeal actually decreased by 1%.
On top of this, some have even raised issue with the terminology used to describe the racial and ethnic mix of the judiciary. The most recent diversity report by Justice, a law-reform charity, outlined that using the term BAME, can give a “distorted picture” of the judiciary’s racial and ethnic mix. As an example, the report references that in the High Court and Court of Appeal, all four of the serving “BAME” judges are of Asian origin while none are of Afro-Caribbean origin.
Finally, while measuring social mobility proves more difficult due to socio-economic background not being considered a protected characteristic, out of the current 12 Supreme Court justices, not one comes from a “disadvantaged background”.
Ten years ago, a 112-page report, commissioned by the government, made over fifty recommendations to increase judicial diversity. Following the report, Jack Straw, the former Justice Secretary, promised to enact change. Speaking about the importance of a diverse judiciary, he said: “Becoming a judge must be, and must be seen to be, open in practice to everyone with the right skills and qualities”.
However, since then, BAME judge appointments have reached a point of stagnation. But, what does this lack of diversity mean for the judiciary, and what impact is it having? Well, according to Justice, it poses an “acute challenge” to both the credibility and legitimacy of the judiciary, and also potentially undermines trust and confidence with minority communities.
While some argue that diversity in the judiciary, or lack thereof has no bearing on the decisions that are made, this is simply not true, and the preservation of a judiciary that is largely “pale, male and stale,” can lead to a false consensus effect. This is stated within the 2019 Justice report, whereby it is outlined that “different but complementary perspectives” are better for “collective decision-making” than “homogenous ones”.
Creating a more representative judiciary as a whole, would also help to eradicate “us versus them” mentality that is established when the highest courts in the country are made up from such a narrow sub-set of society.
Speaking about the importance of improving diversity within the judiciary at the Constitutional Law Summer School Belfast in 2017, Lady Hale said: “People should be able to feel that the courts of their country are ‘their’ courts, there to serve the whole community, rather than the interests of a narrow and privileged elite. They should not feel that one small section of society is dictating to the rest. These days, we cannot take the respect of the public for granted; it must be and be seen to be earned”.
This lack of progress around diversity also means that the sexist, racial and classist prejudice which is unfortunately ingrained within the justice system, will continue to be perpetuated.
Last month, reports circulated about a black barrister who had been continually subjected to racial prejudice. Alexandra Wilson, a criminal and family lawyer, reported that she had been mistaken for a defendant three times in one day, by a security officer, a solicitor and a clerk. She said that the experience had left her feeling “exhausted”.
HMCTS acting chief executive, Kevin Sadler, apologised to the lawyer and promised an investigation would be launched into the matter.
Elsewhere, in a report by the Law Gazette, Kishma Bolaji, principal associate at Shoosmiths and co-chair of Birmingham Black Lawyers, said she had experienced the same kind of humiliation. The solicitor said that on the basis of her race, white colleagues had made assumptions that she was a clerical assistant, or supporting staff rather than a solicitor.
Responding to Alexandra Wilson’s account of racial prejudice, Lord Reed said: “I thought that was appalling. Alexandra Wilson is a very gifted young lawyer, an Oxford graduate who has won umpteen scholarships, and for her to be treated like that was extremely disappointing to say the least,” he said.
Commenting on his vision for the future when asked about when there would be an appointment of a justice, from a Black, Asian or minority ethnic background, Lord Reed said: “I hope that will be before I retire, which is in six years’ time”.
However, he will have to do a little more than “hope” if anything is to change before he retires.
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