The judicial diversity consultation is flawed

Lack of clarity over criteria and processes undermine the credibility of the Judicial Appointments Commission's consultation on the promotion of diversity on the bench, says Adrian Jack

The Judicial Appointments Commission (JAC) is consulting on promoting diversity when two candidates for judicial office are of equal merit. Under the Constitution Reform Act 2005 the JAC is obliged to nominate candidates solely on merit (section 63(2)), but the Crime and Courts Act 2013 '¨amends this requirement so that the JAC '¨is not prevented, "where two persons are '¨of equal merit, from preferring one of '¨them over the other for the purpose of increasing diversity". The consultation, however, which closes on 5 August, is seriously flawed.

The legislative idea is simple. Where '¨an identifiable group is underrepresented, '¨as black, Asian and ethnic minorities (BAME) are in the court judiciary, then where two candidates are of equal merit the BAME candidate should be preferred over the white.

Protected characteristics

At once a problem arises. The Equality Act 2010 identifies nine "protected characteristics", all of which are potentially relevant to the diversity of the judiciary. However, the JAC is proposing to use its 'trumping power' only to give a preference to women and racial minorities. The exclusion of the other seven characteristics is because, the JAC says, reliable statistics are not available of the other characteristics.

This appears arbitrary. Of the other protected characteristics, the age of judges and how many are in marriages or civil partnerships could be easily obtained facts. Likewise gender reassignment is unlikely to be kept secret. Statistics on sexual orientation are not available, but '¨gay, lesbian and bisexual lawyers are very likely to be underrepresented among '¨sitting judges.

Moreover the consultation assumes, without discussion, that "race" is a neutral objective classification on which "reliable data is [sic] available". Yet race is not just genetic, but social and cultural. At present, the JAC's statistics on race are based on judges' and candidates' self-assessment, without any objective check. As soon as race becomes an element in selection, candidates will have an incentive to game the system by claiming, with more or less plausibility, membership of a minority. The JAC does not say whether or how it will check claims to belong to a particular race. Nor does it say what criteria it will use in determining whether a claim to minority status is valid or not.

Further the JAC imply trumping will be based simply on white versus BAME. Yet this bifurcation is a blunt instrument. White Roma and travellers comprise 0.1 per cent of the population of England and Wales, yet are underrepresented in the judiciary. Likewise it is probable that lawyers of Indian heritage are better represented among judges than those of Pakistani or Bangladeshi heritage.

Equal merit

The JAC discusses how the "equal merit" provision will operate. In a competition '¨with 100 candidates selectable for appointment, but with only 50 posts available, at present a line would be drawn under the 50th candidate and the 51st candidate would not be selected. The JAC suggests that there might be up to a dozen candidates around the 50th place who would not be "demonstrably more meritorious" that the others, so that candidates from the 45th place down to the 56th place could be subject to trumping.

There are two problems. Firstly "demonstrably more meritorious" is '¨a different - and wider - test to the statutory "equal merit". If the JAC can distinguish between the 50th and 51st candidate, then surely No 50 is "demonstrably" more meritorious than No 51.

The view of Lord Judge LCJ was that cases of equal merit would be extremely rare for this very reason. The proposed test may not be lawful.

Secondly the consultation is completely evidence-free. The JAC has recently run a very large competition for First-tier Tribunal judges in the Social Entitlement Chamber with 983 applicants for 241 places. Treating this competition as a dry-run would have allowed consultees to know what practical impact different approaches to using trumping might have.

Which pool?

The JAC propose to consider diversity on an exercise by exercise basis, but does not say at what point a particular bench or tribunal will be considered as "sufficiently diverse". The problem is this. Around 40 per cent of tribunal judges are women. Now that is more than the percentage of female lawyers eligible for appointment, but less than the percentage of women in the population at large. Does that mean that women will have a trump card played in their favour or not?

Similar issues arise with race. The '¨BAME population of England and Wales '¨is much younger than the white population. Should judges reflect the ethnic profile '¨of the population as a whole? Or the '¨profile of the population aged 40 to 70? Or the profile of lawyers eligible for appointment? The JAC do not seem to realise there is even a problem.

Lastly, will the JAC tell candidates whether they have been trumped or not? The JAC should recommence its consultation, so that all the problems can be addressed.