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Fine-tuning the judiciary: the real meaning of diversity

23 Feb 2023

| Author: Leslie Thomas KC

Do we truly need judges? I’m going to lay my cards on the table here and say that the answer is yes.

It would be virtually impossible to maintain the rule of law and legal certainty without an independent judiciary. And at its best, the judiciary genuinely does serve as an important check on the power of the executive and the legislature, and a safeguard for minority rights.

But that doesn’t mean the role of the judiciary should remain the same as it is now. First, we need a much more diverse judiciary. I don’t just mean we need more women and minoritised ethnic groups in the judiciary, although we do.

We also need a judiciary which is drawn from a wider range of backgrounds. We need fewer judges from wealthy backgrounds, fewer judges who attended fee-paying schools and more judges from non-traditional backgrounds.

We need judges who grew up on council estates, judges who are refugees and migrants, judges who are transgender and judges who belong to under-represented racial groups. And we need judges with a more diverse range of professional experience. We need fewer commercial lawyers and treasury counsel on the bench and more legal aid lawyers. We need to abandon the lazy assumption that the ideal High Court judge is a barrister from a prestigious London set who got a First from Oxbridge.

Secondly, I’m not in favour of expanding ministerial influence in the judicial appointment process. However, I would be in favour of reforming the statutory framework for judicial appointments. One of the recommendations of Keir Monteith’s report was to overhaul the process of judicial appointments. The authors agree with Law Society President Stephanie Boyce that the “statutory consultation” process, in which existing judges are asked for their views on appointments, should be abolished.

I agree and I think we need to go further. I think diversity should be explicitly enshrined in statute as a goal of judicial appointments, alongside merit, and should be regarded as equally important. In short, we need affirmative action in the judicial appointment process. This shouldn’t just take account of race and gender, but should also include characteristics such as socio-economic background, refugee or migrant background, sexual orientation and transgender status.

Some people will take strong exception to this suggestion. They will argue that judicial appointments should be purely based on merit and should not take account of whether a person belongs to a marginalised group or not. However, that approach ignores the reality of institutional bias in our society.

When it comes to judicial appointments, “merit” is a subjective concept. All too often, in the law as in other professions, selection panels will see the most “merit” in candidates who fit the existing typical profile, rather than candidates who are different. We need to take radical action to change the default image of what a judge looks like. As Keir Monteith’s report says, we need to create “a critical mass of diverse judges reflective of society, rather than occasional and isolated appointments”.

Thirdly, we need to diversify legal and judicial training. The Monteith report argues for “compulsory and ongoing high-quality racial bias and anti-racist training for all judges and key workers in the justice system”. I agree with that. I also think we need to incorporate other kinds of training. For example, an understanding of mental health, trauma and the limitations of human memory should be part of legal and judicial training.

Mental health literacy should be a core part of every lawyer’s and judge’s skillset. We should stop teaching young barristers that inconsistencies in a witness’s account are evidence of fabrication. Legal and advocacy training need to change to reflect the current state of scientific knowledge about how witness testimony actually functions. And it would be good if lawyers and judges got some basic education in statistics, scientific literacy and how to read and understand scientific papers.

Throughout their careers, lawyers and judges will need to deal with a wide range of complex issues which are outside their experience or knowledge. Yet legal education focuses only on a narrow range of skills and doesn’t prepare lawyers for the challenges they will encounter, both as lawyers and as judges.

Fourthly, we need to reconsider some of the things we expect judges to do. In particular, we need to reform criminal sentencing and decentre punishment in the criminal justice system. That will require not only changes in the law, but also changes in judicial culture and the perceived purpose of sentencing. ■

Professor Leslie Thomas KC is a lecturer at Gresham College in central London ■

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