Tag Archives: judicial appointments

Judging Judges – Is there a need for greater judicial scrutiny?

I attended Cheryl Thomas‘ inaugural lecture at the Judicial Institute at UCL last Wednesday where she talked about judicial studies and in particular, the study of judges and juries. I’d never really thought about judicial studies until I was trying to find empirical evidence of the behaviour of juries in criminal trials for a paper I was writing. All I found was a study from the early 1990s – The Crown Court Study, by Professor Michael Zander and Paul Henderson, so I used this slightly outdated evidence, feeling a little disheartened about my research skills. At the lecture I found out that this paper was in fact one of the few empirical studies of juries in the UK. Thomas described the study of juries in the UK as a as a “black hole” with academics remaining cautious about conducting research in the area, for fear of breaching Section 8 of the Contempt of Court Act.

Royal Courts of Justice Photo courtesy of Gareth Davies

However it is not only the study of juries that is largely neglected in the UK, but perhaps more surprisingly, the study of judges is also neglected even though this wouldn’t be limited by the Contempt of Court Act. This paucity of research could be due to a number of factors, most notably the commonly held belief that the judiciary should not be interfered with. In 1955 Lord Kilmuir famously claimed that there is a need for ignorance to “protect” the judiciary from scrutiny, establishing the so-called Kilmuir rules. This changed in the 1980s when these rules were revoked. In March, the current master of the rolls, Lord Neuberger, stated in a speech to the Student Law Society at Birmingham University:

“it seems to me only proper that judges, with their wisdom and experience, should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.”

His assertion that members of the judiciary should be able to make extra-judicial comments as well as having a public profile also came with a warning that judges must be cautious about what they say publicly.

In the US the area of judicial studies has greatly evolved since the 1950s with prominent academics such as Theodore L. Becker making it a well respected field of study. In the UK there has been little attempt to study the work of judges, the book by JAG Griffith on politics of the judiciary is based on very little empirical evidence and has failed to encourage further study. This also means that assertions made by those who write or comment on behaviour of the judiciary, as well as assumptions or sweeping statements, often go unchallenged regardless of their accuracy.

Thomas claimed that academics in England and Wales lack curiosity in relation to the judiciary, but she also stated that while they are not in opposition with judges, they do not have a great deal of contact with one another. It appears to her that academics have lost touch and no longer have the appropriate skills to study the judiciary.

The key problem in the judiciary of England and Wales lies with judicial appointments and the failure to improve diversity. While there is some progress being made in relation to the number of women appointed in the judiciary, the number of black, Asian and minority ethnic (BAME) candidates remains very low. The current appointments to the judiciary of England and Wales are significantly unrepresentative of society, this is not only regarding gender and ethnicity but also taking into account socio-economic background.

The judiciary of England and Wales is often cited as being one of “the best” legal systems in the world. Although there is no international study to confirm or reject such an assumption, there is evidence to suggest that it fares very well in comparison to other states in terms of corruption and speed. Nevertheless it’s reputation is tainted by its poor diversity statistics, the public debate on the issue of diversity has become sterile and unproductive as a result of progress being so slow.

Establishing judicial studies as a respectable and rigorous academic field could not only increase public understanding and interest in the judiciary, but it could also serve to improve the quality and openness of our legal system.

Diversity in the Judiciary – Are Times A’Changing?

The judiciary has long been criticised for being made up of white upper class men, however how accurate is this picture of the modern bar? It appears that in the area of diversity little has changed or at least  not enough.

In the recent Report published by the Lords Select Committee, the statistics show that in 2011 only 5.1% of judges were Black, Asian and Minority Ethnic (this is officially referred to as ‘BAME’) and only 22.3% were women. While the Committee stressed that the ‘diversity factors’ incorporate a number of other elements including disability, sexual orientation and social background, I have always found it odd to be asked to disclose highly personal information such as sexual orientation on an application form to the Inns of Court. That however is an entirely different matter.

The Committee stated that while judicial appointments should be based on merit it is vital and should continue, it appears that this has not resulted in a judicial system which is representative of society. It welcomes the idea of greater diversity and has agreed that the application of section 159 of the Equalities Act 2010 to judicial appointments would be beneficial in encouraging a change in the makeup of the legal system.

However why are these groups under represented? One of the most puzzling factors here is the lack of female appointments. There are such a large number of women studying law that the measly figure of 22.3% seems completely unrealistic. Not only because women obviously account for half the population, but also because there are so many top female law students and lawyers.

Dame Elizabeth Kathleen Lane: First female judge in the UK

When you walk into a lecture at City Law school, at least half of the lecture theatre will be filled with women. Where are these faces in the judiciary? How and where do they get lost on the way to the top appointments. Lady Justice Hallett highlighted this issue by indicating that her appointment was rather an anomaly than a symbol of modernisation. Maybe most of these law graduates choose to become solicitors rather than barristers/judges, where there is greater diversity.

The bar is by definition quite an exclusive and closed profession. The tuition for the BPTC now costs between 14,000 and 17,000 pounds, which many aspiring barristers embark on with no, or very little funding. Who can afford such a high price, especially at a time where the chances of securing a pupillage are so slim. These constraints prevent many law graduates from gaining access to the bar, unless of course they have an alternative income or support from their family. This however still does not explain the lack of female judges.

Constance Briscoe one of the first black judges and author of Ugly

Women and candidates from minority backgrounds should be encouraged to apply for these positions by creating more compatible working conditions. The Committee has recognised that there should be wider opportunities available for flexible working hours and career breaks, in order to encourage applications from women and others with caring responsibilities. (not that it should only be women caring for children – this may also attract a different sort of man who may be more adapted to home life)

The Committee has not actually set out any targets for the number of BAME and women judges it seeks to appoint, however it says this issue should be reviewed in five years if no significant progress has been made. I won’t hold my breath on the next set of statistics, but I hope that those making judicial appointments will be more open to embracing change.

Video Clip of Baroness Jay discussing judicial appointments