14:52, December 19 256 0 theguardian.com

2017-12-19 14:52:05
The Guardian view on diversity in the courts: not just women

Diversity among judges is about bringing a different perspective, maybe a different experience of life, to the interpretation of the law. But that is only part of its value. There is a performative aspect to the court system too; it needs to be an active demonstration of the impartial application of the law that is underscored by the way judges are drawn from among all the country’s citizens. It isn’t.

On Tuesday, the justice secretary, David Lidington, accepted all but two of the 35 recommendations made in a review by the Labour MP David Lammy of the experience in the criminal justice system of black and minority ethnic people. The review, commissioned last year, was published in September. Mr Lidington signed up to more detailed monitoring of the ethnicity and faith of offenders, and to the call for targets to ensure diversity among prison officers. He accepted that a system that locks up a proportionately greater number of BAME citizens than in the US but is run largely by white people is unacceptable.

He rejected just two proposals. One related to ending the way that convictions for relatively minor offences can linger destructively for the job prospects of ex-offenders (a third of those on jobseeker’s allowance have a criminal conviction), though the supreme court may resolve this anyway in the coming months.

The second recommendation was the big one: that by 2025 the number of judges should be proportionate to the size of the UK’s BAME population – about 14%. Mr Lammy is convinced that only a target, against which progress is closely monitored, can shake up the approach to a judicial appointments system that is deeply resistant to change. He warns that a failure to reform will dangerously undermine trust in a system where it is already eroding.

In his defence, Mr Lidington points to programmes to encourage qualified applicants to come forward regardless of background. He insists that appointments are made on merit alone. But the figures cast doubt on his claim. Last year, 12% of the applications to the circuit court – 20 people – came from BAME candidates. Just two were appointed. Of the 149 white applicants, 38 were appointed – 95% of all the new circuit judges. Can merit be so unevenly distributed, Mr Lammy wonders. In the last three years, the proportion of BAME judges in the higher courts has crept up from 6% to 7%. It would have to be double that to reflect the wider population. No wonder Mr Lammy is demanding a much more determined push.

For more than a decade Lady Hale, now the first female president of the supreme court, has shown the value of alternative viewpoints, bringing to her legal expertise a feminist interpretation that has subtly introduced an understanding of the differential impact of the law on men and women. It is easy to imagine how the perspective of a critical mass of non-white judges could reshape the way the courts think. Like Mr Lammy, Lady Hale questions whether the narrow definition of merit, based on the traditional successful barrister’s career, is really the only model for the good judge. Like Mr Lammy, she wants to encourage diversity among judges with the kind of supportive approach to recruitment of talent-spotting and mentoring that big firms use. The justice secretary must take note before more damage is done.