Lady Hale: "The judiciary would be better off without prima donnas"

In her typically self-deprecating and affable style Lady Hale took Lord Sumption to task for his gloomy forecast for the prospects of a more diverse judiciary this week, in her Kuttan Menon Memorial Lecture, offering a much brighter outlook - in theory at least.

In November, Lord Sumption marked his imminent arrival to the Supreme Court with a lecture on judicial diversity (available here) in which, whilst recognising the typical socio-economic and cultural barriers to making a career on the bench, concluded in no uncertain terms that a more diverse judiciary was impossible, at least in the short term. The principle of appointment solely on merit, albeit with regard to the public interest in promoting a more representative judiciary, was utterly inconsistent with any notion of positive discrimination or affirmative action. Whilst she agrees with his "diagnosis of the problem:

Where I respectfully disagree (as we judges say) with Lord Sumption is in his belief that we will not make quicker progress (if it would be progress) without some measure of positive discrimination which he thinks would be a bad thing. I disagree because I think that tackling the above obstacles would make a considerable difference if it were done with the right amount of enthusiasm.
 

In setting out her case, Lady Hale identifies four "uncomfortable truths" that need to be taken into account regardless of whose perspective one shares on the debate: (i) the lamentably low number of female and judges from Black and Minority Ethnic (BME) backgrounds, (ii) that, particularly in terms of gender, our judiciary is out of step with the rest of the world, especially at the highest levels, with the percentage of female judges (8%) is the lowest in the OECD (iii) the strikingly similar educational and professional backgrounds of many of our top judges - Oxbridge, privately educated, successful barristers - a trend only bucked my Lady Hale in terms of gender and professional history (coming  to the bench from academia) (iv) despite being so unrepresentative, our judiciary remains amongst the most admired in the world (although there is much to justify that admiration) (v) our judiciary is amongst the highest paid in Europe which (vi) is consistent with a trend showing that in countries where the role of the judge carries less status and consequently lower pay, there are "far more" women judges. These are uncomfortable truths in the sense that they:

 "lead some people to fear that, if we changed the system so radically that the composition of our higher judiciary also changed radically, we might not like what we saw. In fact, might it not be a whole lot worse? I raise this demon, not because I believe in it, but because I fear that there are some who do, but may not wish to say so publicly."
 

Lord Sumption on the other hand, had no such reservations.

In his speech in November, Lord Sumption rejected the idea that the tie-breaker clause created by Equality Act s.159 should apply to judicial appointments on the basis that at the highest levels at least, it is rarely if ever, the case that two candidates would be presenting candidacies of equal quality whereby the public interest in promoting diversity would make their gender or ethnicity a material consideration in the decision to appoint. Indeed, he went further, to have any regard to race or ethnicity would be a contravention of the Judicial Appointments Commission's statutory obligation to make appointment decisions "solely on merit". This presupposes two things. Firstly that the concept of merit is an entirely neutrally one and secondly, that it is not broad enough to encompass the public interest in a representative judiciary - that the principles of merit and diversity are competing rather than complementary objectives. These assumptions are reinforced by statute given the obligation to appoint solely on merit whilst having regard to the need to encourage diversity. However, as Lady Hale points, the idea of "merit" being self-defining is misleading. At the very least, interviewers asked to mark candidates against a list of criteria will have their own views about the relative weight to attach to them. Even Lord Sumption acknowledges that:

"it would be foolish to pretend that interviewers are not occasionally influenced by unconscious stereotyping and by perceptions of ability moulded by their own personal experience." 

More candidly, Lady Hale would drop the "occasionally". Therefore, for all the changes to the process of judicial appointments, particularly in the creation of the JAC, there is still more to be done. Getting the process right is one thing but

"we have to get the definition and assessment of merit right too, that is much harder [because] either side of  JAC there sit episodes in the saga which tend to disadvantage non-standard candidates"
 

Those episodes are the result of inflexible modes of working that are ill-suited to say, those with childcare responsibilities, a bias towards barristers in the appointment of judges -itself the result of a "self-fulfilling" assumption that advocates make the best judges and the innate lack of a judicial career structure - a career that is able to encompass solicitors, barristers and academics and which spans across one unified judiciary. At the moment the path of the judiciary forks off between appointments from part-time-judges with the right tickets, tribunal judges and those responding directly to a recruitment drive. "All this amounts to affirmative action but it does not amount to positive discrimination."

But what of Lord Sumption's argument that ideas of a "tie-breaker clause" or other kinds of positive discrimination would dilute the quality of the bench? That "top white males would not apply if they thought that they would be discriminated against; and top women [or candidates from a BME background]" would not apply because they felt undermined by any notion of preferential treatment?

"We do not know whether this would happen. I tend to think that the judiciary would be better off without prima donnas who might apply for such reasons."
 

I am inclined to think that the concerns of those in under-represented groups not to be seen as tokenistic appointments is under-played here. I am also disappointed to see another talk about judicially diversity not specifically addressing the cost of legal education, particularly for Bar Students as one of the barriers to judicial diversity, as well as the legal profession as a whole, perhaps I will leave that for another post. However, none of that should detract from the force of Lady Hale's argument, especially in a week where her lone position as the only female voice in the Supreme Court was reinforced with the appointment of three new Law Lords.There is more to affirmative action than quotas, diversity policies or better recruitment training. It is about addressing structural and cultural deficits. In advocating this argument, "no one is suggesting that people should be appointed who will not be able to do the job and do it very well" but that in determining what constitutes merit, one must look beyond the idealised notion that it is a neutral criterion and further still, beyond the man in the mirror.