Written by Robert Verkaik, The Times
The senior judiciary of England and Wales found itself in the dock towards the end of last year as it faced twin accusations of systemic racism and bullying.
A study by the University of Manchester and Keir Monteith KC revealed that court users believed judges are “just as racist as our police forces, our education system and our health service”.
This finding came after reports in The Times of widespread allegations of bullying made by junior members of the judiciary against their senior colleagues.
Both controversies were predictably met with official condemnation and a round of race and harassment awareness training for those on the bench.
But we have been here before. In 2016 a report by David Lammy, the Labour MP, found widespread racism in the criminal justice system and called for an “ethnically representative judiciary and magistracy” by 2025.
This is a historic issue — 30 years ago there were similar promises to improve the complexion and training of judges. So perhaps the time is right for a radical overhaul of the preparation and selection of judges, one that follows the continental model of judicial colleges.
This would be a discrete route to the professional judiciary through study and training, just as there is for barristers and solicitors. Under such a scheme the government would have to set up a “judge school”, perhaps based on Platonic principles focusing on the apprenticeship and training of the guardians of the state.
This could help to create a confident, independent judiciary. And a school for judges could nip unconscious racist and sexist bias in the bud. People management skills could be instilled from the start of a judge’s training rather than as an afterthought when a middle-aged barrister or solicitor opts to take his or her place on the bench.
Richard Moorhead, a law school professor at the Exeter University, says there is “real merit” in the idea, arguing the present recruitment processes for judges “do not work well”.
“While the judiciary, and many in practice, might reflexively resist the idea of a separate career track, an intermediate approach which took practitioners much earlier in their careers and trained them up might also be worth thinking about,” he says.
He adds that the present system relies “on middle-aged practitioners getting fed up with practice and being willing to submit to the processes of the judicial appointments commission, well intentioned but marked as much by the willingness to practise tests and interviews as by competence development”.
The unconventional career path of a senior judge such as Baroness Hale of Richmond, the former president of the Supreme Court, who was an academic, shows that years of toiling at the Bar need not be a prerequisite for judicial excellence.
One senior figure who has given the idea of a continental-style judge school some serious thought is Lord Sumption. He sat on the Judicial Appointments Commission for six years before being appointed to the Supreme Court bench and has visited judges’ schools in France and Italy.
He argues that judge schools are necessary in countries that have a career judiciary, those where students join the judiciary at the outset of their careers in their twenties as an alternative to private practice, and progress through the hierarchy from local magistrate to appeal judge.
But after speaking to students, practising judges and trainers in France and Italy, Sumption concluded that such a model is “unnecessary” in a system where judges are recruited from experienced practising lawyers.
“Barristers and solicitors going to the bench will have worked in the courts for at least two decades and know how they work,” Sumption says. “They will also have dealt face-to-face with the human beings whose problems are the concern of the courts. That is the best possible training. It also gives judges a strong independence of mind, which can hardly be replicated by training in government institutions.”
Nor does he discern problems of lawyerly cosiness or conflicts of professional interest that some attribute to the present system.
Sumption questions whether, even if such problems existed, government training establishments would be likely to correct them. “As for judges being unrepresentative of the country, that will always be the position, however judges are formed, first because judges should have exceptional abilities and experience which are not common in the population at large, and secondly, because the job itself is inescapably an elite function, judges being servants of the state at a particularly high level,” he says. “What judges need is not representativeness but empathy for people very differently situated to themselves.”