Diversity in the Judiciary: The Case For Positive Action
| Date | 01 September 2009 |
| Published date | 01 September 2009 |
| Author | Kate Malleson |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00472.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 3, SEPTEMBER 2009
ISSN: 0263-323X, pp. 376±402
Diversity in the Judiciary: The Case For Positive Action
Kate Malleson*
A range of policies has been developed in England and Wales to
reform the judicial appointments process so as to promote greater
diversity. But despite two decades of official activity, the pace of
change has been far slower than anticipated. Increasing awareness of
the intransigence of the problem has led to a greater willingness to
revisit some of the more fundamental tenets which have underpinned
the approach to the problem to date, in particular, the unquestioning
and inflexible commitment to the principle of equal treatment. This
article examines the different forms of positive action which might play
a part in the development of new diversity strategies for the judiciary.
It reviews the arguments for and against different types, in terms of
effectiveness, quality of appointments, and equity. It goes on to
consider the legal frameworks which govern diversity and equality
policies and assesses the legal implications of adopting different forms
of positive action.
For over twenty years there has been official support for the goal of
increasing diversity in the judiciary in England and Wales. While academic
debate continues about the relative merits of equity versus utility-based
arguments in favour of greater diversity, there is now a clear consensus, both
on and off the bench, that `a diverse judicia ry is an indispensable
requirement of any democracy.'
1
As a result, a range of policies has been
developed to reform the judicial appointments process and encourage a
wider range of applicants for judicial office; the most recent and radical
376
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, Queen Mary, University of London, Mile End Road,
London E1 4NS, England
k.malleson@qmul.ac.uk
1 Baroness Hale, The Appointment and Removal of Judges: Independence and
Diversity (International Association of Women Judges 8th Biennial Conference 3±7
May 2006 Sydney, Australia) 2.
being the creation of a new Judicial Appointments Commission which
started work in 2006.
2
Yet despite two decades of official activity, the pace of change has been far
slower than anticipated by many in the judiciary, the government, and the
legal profession and there remains little prospect of any significant shift in the
composition of the bench in the near future. To date, academic discourse
highlighting the deep-seated nature of the lack of diversity in the judiciary has
generally been disregarded by policy makers in the judicial appointments
process. The official approach to the problem has been dominated by a belief
that it will resolve itself naturally and inevitably with the need for only modest
official intervention. However, as the intransigence of the problem has
become clear, it has become increasingly possible to challenge the orthodoxies
which inform the debate and to revisit some of the more fundamental tenets
which have underpinned the approach to the problem to date, in particular, the
unquestioning and inflexible commitment to the principle of equal treatment
as the foundation for all judicial diversity policies.
Against this background, this article examines the different forms of
positive action which might play a part in the development of new diversity
strategies for the judiciary. It reviews the arguments for and against these
policies in terms of effectiveness, quality of appointments, and equity. It
briefly considers the legal framework, both domestic and EU, which governs
diversity and equality policies and assesses the legal implications of adopting
different forms of positive action. The focus of enquiry is on the particular
legal, historical, and political context of judicial appointments in England
and Wales, but the arguments explored have wider implications both geo-
graphically and institutionally. The ongoing lack of diversity in the judiciary
is a problem which is currently being tackled, with more or less success,
across many different jurisdictions around the world.
3
Likewise, while the
issues raised here are in some respects particular to the judiciary as an
institution, the relative failure of equality and diversity policies to change
377
2 For a full overview of the reforms to the judicial appointments process in England and
Wales, see J.L. Maute `English reforms to Judicial Selection: Comparative Lessons
for American States?' (2007) 34 Fordham Urban Law J. 387±423. The current
Ministry of Justice statement on increasing diversity in the judiciary sets out its goals
as follows: `In partnership with the Judicial Appointments Commission and judiciary,
our aim is to increase public confidence in the justice system through a judiciary
which better reflects and has a greater understanding of the society it serves' at:
ments in the judicial appointments process in relation to diversity are set out in the
Judicial Appointments Commission (JAC) Annual Report 2007/8, Selecting on Merit
and Encouraging Diversity,HC(2007±8) 724.
3Inrelation to the issue of gender diversity amongst judges in a range of jurisdictions
see special issue, `Women of the Courts Symposium', (2005) 36 University of Toledo
Law Rev.; special issue on `Gender and Judges', (2008) 15(1/2) International J. of the
Legal Profession; and forthcoming special issue on `Women and Judging', (2009)
17(1) Feminist Legal Studies.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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