This article is replicated from The Times: Catherine Baksi
In 2006 Lord Falconer of Thoroton, the secretary of state for constitutional affairs in Tony Blair’s government, took steps to end the “tap on the shoulder” style of appointing judges. To move the process out of the hands of ministers, Labour created the independent Judicial Appointments Commission (JAC), which was given a statutory duty to select candidates solely on the basis of merit. But has it succeeded?
About 32 per cent of court judges are women and 8 per cent have an ethnic minority background, although the latter figure falls to 4 per cent for circuit and High Court judges and 3 per cent for the Court of Appeal.
Diversity has slowly improved since the appointments commission came into being. Women comprise about 35 per cent of applicants and 38 per cent of recommendations, compared with 16 per cent and 22 per cent respectively before its launch. Recommendations for court appointments for candidates from ethnic minority backgrounds rose from 4 per cent to 11 per cent. The commission has introduced education and support schemes to attract candidates from underrepresented groups, including women, non-white people and those with disabilities.
The austerity programme imposed after the 2008 financial crisis led to a freeze on most recruitment, but it was gradually lifted and appointments have increased fourfold since. There were 290 court appointments in 2016-17, rising to 1,031 in 2018-19, and dropping only slightly in 2019-20 to 979. Commission officials expect appointments to continue at the higher rate, and that the diversity figures will improve. A recent recruitment competition for 400 deputy district judges, first tier and employment tribunal roles attracted 4,000 applicants.
Richard Jarvis, the commission’s chief executive, tells The Times that there have been positive steps, but there is more to be done. He points out that the pool of candidates for judicial office comes from the legal professions, where gender and ethnic diversity tend to decrease with seniority.
“It’s a complex picture and demonstrates the need for the professions, the judiciary and the JAC to work together to break down any barriers,” he says.
Peter Herbert, a barrister and part-time judge who is suing the Ministry of Justice for race discrimination, argues that the JAC’s “failure” to achieve significant diversity can be addressed only by the imposition of recruitment targets.
Herbert’s view echoes a call by David Lammy, now the shadow lord chancellor, in a report in 2017 on the treatment of ethnic minorities in the criminal justice system. Herbert says that fast-track recruitment and a rule that would guarantee interviews to all eligible ethnic minority candidates “are necessary to increase the snail pace nature of reform”. He believes antiracism training must be thrown into the mix.
Five years ago Lord Sumption, then a Supreme Court justice, argued against rushing to appoint more women to senior posts. He said that the move could dissuade male candidates and suggested that it could take 50 years to achieve gender equality.
In recognition of claims that progress has been too slow, this month the lord chief justice, Lord Burnett of Maldon, and Lady Justice Simler, chairwoman of the judicial diversity committee, published a five-year plan to increase diversity. In the foreword, Lord Burnett states that the “testing and ambitious” objectives demonstrate commitment to ensuring that the judiciary provides an environment in which talented individuals, whatever their personal or professional background, can thrive.
“We recognise that we must ensure that those from diverse backgrounds feel welcome and comfortable as members of the judiciary,” he says. Yet The Times has heard allegations that many ethnic minority judges do not feel welcome on the bench. A sitting judge who wanted to remain anonymous says that discrimination and bullying within the judiciary prevent judges from ethnic minority backgrounds climbing up the judicial ladder or push them to retire early. The judge reported that many experience a “culture of fear”, saying: “If you want advancement, good work or to be treated well you have to toe the line. People are too scared to speak out.”
Quoting a newly appointed colleague, the judge says: “We know they don’t really want us, they have to have some and we just have to keep quiet and be grateful.”
Similar claims were made by Asian judges in an article published this year in the Eastern Eye, a newspaper for British Asians. It purported to blow the whistle on “a culture of racism, fear and bullying” in the judiciary. The article reported claims made by ethnic minority judges who “have had their career paths blocked because of their colour, been told that their appointment to the bench was only to fill quotas and have been shunned by white colleagues.”
In August an employment tribunal dismissed a claim against the Ministry of Justice and two judges brought by Nawal Kumrai, a district judge. Judge Kumrai claimed that he suffered racial discrimination in the way a complaint about him was handled.
A spokesman for the judiciary said: “It is fundamental to the ethos of all judges to treat everyone equally and with respect. The judiciary is committed to ensuring that the environment in which judicial office-holders work is free from racism, harassment, victimisation and bullying of any kind.”
He said that “suggestions of structural or systemic discrimination within the judiciary have not been apparent”, but added that complaints could be raised through internal grievance procedures or investigated by the Judicial Conduct Investigations Office and emphasised that help was at hand in the form of mentors, HR advisers, helplines and support groups.