Rethinking the Merit Principle in Judicial Selection
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00351.x |
| Published date | 01 March 2006 |
| Author | Kate Malleson |
| Date | 01 March 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 1, MARCH 2006
ISSN: 0263-323X, pp. 126±40
Rethinking the Merit Principle in Judicial Selection
Kate Malleson*
Against the background of the continuing lack of diversity in the make-
up of the judiciary in England and Wales, this article explores the
reasons behind the consistent rejection of affirmative action policies in
relation to the judicial appointment process. It examines the
relationship between affirmative action and the merit principle in this
context and argues that the belief that the two are inherently in tension
rests on implicit assumptions about both which are open to question.
`I would like, obviously, the judiciary to be as diverse as we can get it. But that
must not interfere with the fundamental principle that we have got to choose
the best man for the job.'
1
The concept of affirmative action has attracted very little support in the
United Kingdom as a means of promoting diversity in the selection processes
of public and professional life. The belief that affirmative action results in
unfairness to individual applicants and a reduction in the overall quality of
those selected has led to a general consensus that such policies are
incompatible with selection systems based on merit. This view is particularly
strongly entrenched in relation to the judicial selection process. While there
is increasing acceptance amongst members of the judiciary, government, the
legal profession and academia that the lack of diversity in the composition of
the judiciary has a corrosive and damaging effect on the work of the courts,
2
126
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
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* Department of Law, Queen Mary, University of London, 339 Mile End
Road, London E1 4NS, England
k.malleson@qmul.ac.uk
1
Lord Lloyd of Berwick, evidence to the Constitutional Affairs Committee, First Report,
Inquiry into the Provisions of the Constitutional Reform Bill, 2003±4, HC 48-II.
2 The main arguments in support of a more diverse judiciary focus on the damaging
effect that the current make-up of the bench has on public confidence, the loss of
potential judicial talent through the absence of well-qualified lawyers from non-
traditional backgrounds, and the danger that those appearing before the courts will
feel they are being judged by a society to which they do not belong. See, for example,
Department for Constitutional Affairs, Increasing Diversity in the Judiciary (October
2004) 14 and C. Banner and A. Deane, Off with their Wigs (2003) 129±37.
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