Diverse perspectives

The overriding concern must be to ensure the legitimacy of our judges in the eyes of all those served by the courts, the Lord Justice Clerk told a conference held last month on achieving judicial diversity.

In practical terms, Lord Carloway maintained, the legitimacy of the judiciary will depend on the qualitative diversity of its decision-making processes and, “If our perceptions of judicial diversity are broadened in this way, it is demonstrably clear that we do, indeed, have a diverse judiciary in Scotland”.

In a contrasting address focusing on recent developments in England & Wales, where she chaired an advisory panel which reported in 2010, Rabbi Baroness Julia Neuberger recommended an action group to promote diversity in judicial appointments, similar to a group that had recently begun to make an impact in England & Wales.

Both were speaking at an event in Edinburgh entitled “Merit and Diversity – Compatible Aspirations in Judicial Appointments?”, hosted jointly by the Judicial Appointments Board for Scotland, the Judicial Office for Scotland, the Law Society of Scotland and the Faculty of Advocates, for a (diverse) invited attendance.

“Informed impartiality”

Accepting that “equality plays an important role in achieving diversity on the bench”, Lord Carloway distinguished the “quantitative” and (more important) “qualitative” senses of diversity, arguing: “Success cannot be measured by a mere tally of the relative numbers of men and women or of ethnic minority and other groups.”

In order for the judiciary to be truly diverse, its decision making had to be consciously informed by an awareness of the diverse interests and values of those who came before the courts.

Pointing out that the vast majority of cases will be dealt with by a single judge who will, in quantitative terms, inevitably be “undiverse”, Lord Carloway commented: “It is a dangerous notion that litigants might begin to question the validity of any judicial decision that is perceived to have been made by an insufficiently diverse bench” – hence the need to broaden our horizons in measuring success in promoting judicial diversity.

A tick-box assessment of diversity of backgrounds was not sufficient, as the desirable judicial qualities were not solely the preserve of a visibly diverse bench. “The same absolute standard – to do right by all people – applies to all judges, and the exercise of ‘informed impartiality’ must be the cornerstone of a truly diverse judiciary.”

The judicial appointments process had to remain first and foremost a meritocracy, but there required to be a guard against prejudice, discrimination or other barriers to judicial appointment. There was also “an important role for meaningful judicial education on diversity awareness in judicial decision making”.

Package approach

Baroness Neuberger, on the other hand, was in favour of more proactive measures to advance the cause of diversity in general, and gender balance in particular, while keeping the appointment process free from political influence.

Speaking of the picture in England & Wales, she commented: “I do think progress has been made, if not enough and not fast enough.”

The Baroness said that since her report, there had been “a huge improvement, especially in the appointment of women” – at Queen’s Counsel as well as judicial level, with more women putting themselves forward. However, there had not been a similar improvement in the number of solicitor applicants.

“The current gender balance must suggest that there are good women out there who would do better than some of the men,” she added.

She believed senior judges should encourage people from the protected groups to apply for judicial posts; that a proper appraisal system for judges would encourage more women to apply, and to seek promoted judicial posts (there is disagreement, she said, about how this would be carried out, though it has proved beneficial at tribunal level); that it was beneficial that there was now a statutory duty on the Lord Chancellor and others to encourage diversity; and that a group modelled on the diversity forum now operating within the English Judicial Appointments Commission would be the most effective first step that could be taken in Scotland – provided the politicians buy into it.

Considering the definition of merit for judicial appointments, it did not require taking diversity into account, but it had to go beyond looking at the skills of advocacy and being able to marshal arguments, and should include what kind of presence a person had on the bench and the life experience they brought.

Baroness Neuberger was “delighted” that the JAC had amended its criteria for merit to include a commitment to justice, public service, and fair treatment.

There was a package of things that should be done, she concluded, that should lead to more women and other groups applying, of which training was a very important part, to help them develop the right characteristics.

Lady Stacey, Senator of the College of Justice, chaired the conference, which also featured breakout sections and a panel discussion on what judicial diversity is intended to achieve, with Professor Neil Hutton of Strathclyde University, Shona Simon, President of Employment Tribunals (Scotland), and David Strang, HM Chief Inspector of Prisons.