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Positive action no 'panacea' for lack of diversity, JAC warns

15 February 2012

The Judicial Appointments Commission has warned that the government’s plan to use the positive action provisions of the Equality Act to boost the diversity of judges is no “panacea”.

Justice secretary Ken Clarke said in November that sections 158 and 159 of the Equality Act could be used to allow the appointment of minority judges where two candidates were of “genuinely equal ability” (see solicitorsjournal.com, 21 November 2011).

In its response to the MoJ consultation, the JAC said today that “merit should be primary” in appointments and, given the amount of information collected about applicants, use of the Act would be a “rare event”.

The commission said that although it was appropriate where two candidates were indistinguishable to pick the one from a minority group, there were “several issues to be addressed”, including how to prioritise protected characteristics, such as ethnicity and gender.

“Many from underrepresented groups are uncomfortable with the use of this provision as they fear it would devalue appointments,” the JAC said.

The commission said that diversity data it currently collected from candidates for statistical purposes was not available to those making selection decisions. If this changed, there was “a real risk that this would prove counterproductive and candidates would not choose to provide us with their data on this basis”.

The commission went on: “We consider that as this is a provision that would be used rarely, it should not be considered a panacea to address judicial diversity.”

The JAC questioned the government’s suggestion that the number of its commissioners should be reduced, saying that the “breadth of views brought by a range of commissioners has resulted in a rich and balanced exchange” in making decisions.

Cutting the number of commissioners would not reduce the length of selection processes or “have a significant financial impact”, the response said.

The commission strongly opposed any move to prevent it from getting involved in lay appointments.

“It is important to recognise that non-legal tribunal members form part of collective judicial decision making that has considerable impact on the public and business – some of these are of life-changing importance to those involved.

“Consequently, the JAC believes that selection processes used to select these members should be just as robust as those used to select legal members in order to retain public confidence.

“As we have not seen any robust evidence that selection exercises can be run more cheaply or effectively outside of JAC processes, while retaining the same standards and levels of public accountability and scrutiny, we can see no strong argument for making these selections outside of the JAC.”

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