The Legal Profession as Gatekeeper to the Judiciary: Design Faults in Measures to Enhance Diversity
| Published date | 01 March 2011 |
| Author | Kate Malleson,Lizzie Barmes |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00845.x |
| Date | 01 March 2011 |
The Legal Profession as Gatekeeper to the Judiciary:
Design Faults in Measures to Enhance Diversity
Lizzie Barmes and Kate Malleson
n
The gate-keepingrole played bythe legalprofession in the judicial appointments processgives rise
to the translationof entrenched group-based identityhierarchies from legal practicei ntothe judi-
ciary.The relationship between the compositionof the legal profession and the judiciary has been
almost completely una¡ected byrecent reforms designed to increasediversity in the composition
of the judiciary.This article identi¢es legal and institutional defects which help to explain the fail-
ure to disrupt the reproduction of these patterns of appointment.We identify two particular
defects which we call ‘soft target radicalism’ and‘regulatorybi nd’ as important factors inhibiting
change.We conclude that if the legal profession is to retain its gate-keeping role, equality law
which directlyregulates legal practice should be strengthened and the regulatory binds in which
the Judicial Appointments Commission and other public entities are caught shouldbe loosened.
INTRODUCTION
Many years of institutional and regulatory activitydesigned to promote diversity
in the composition of the judiciary in England and Wales have failed to bring
about signi¢cant substantive change.
1
Some of these interventions have been spe -
ci¢c to the judicial appointments process while others are part and parcel of the
broaderlegal framework. Most recently, theAdvisory Panel on Judicial Diversity
has produced a report recomme nding yet further reforms.
2
In this article we ask if
there are defects in the design of legal measures to date, and in the surrounding
law, which help to explain this failure.
Our methodinvolves analysis of recent legislativei nterventions, and surround-
ing law, in the empirical context in which they operate. This enables us to tease
out, and to hypothesise, recurrent inadequacies in law and public policy in this
area. Our analysis recognises throughout that the tendencie s which we ide ntify
n
Department of Law, Queen Mary, University of London. We are grateful to Kenneth Armstrong,
RogerCotterrell, Richard Nobles, SirThomas Legg, DavidSchi¡, Sir Stephen Sedley and the MLR’s
anonymousreferees for detailed and chal lenging comments on earlier drafts.The thinki ng in this piece
also bene¢ted from discussion with participants i n the Birkbeck Judicial Conversation with Sir Terence
Etherton in November 2009, the Spring Con ference of the Industrial Law Society in May 2010, the
meeting of the InternationalWorking Groupfor ComparativeStudies of Legal Professions in July2010
and the Equal Justices Initiative. Remainingerrors are our own.
1The Joint Committee on the Draft Constitutional Renewal Bil l concluded in its report in 2008:
‘Weare disappointed by the lack ofmeasurable progress towardsi ncreasingdiversity at all levels of
the judiciary, although we acknowledge the short period of time during which the JAC has been
operating.We encourage the JACand others, including the LordC hancellorand Lord Chief Justice,
to continue exploring the best ways of addressing this important issue.’ (HC 551-Iand HL 166-I,
paragraph197 31July 2008) The Government’s response to the report in July 2009 acknowledged
that‘further work needs to be done’,Cm 7690 (2009) para135.
2The Reportof theAdvisory Panel on JudicialDiversity(Mini stry of Justice, 2010) (2010 Panel Report).
r2011The Authors.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(2) 245^271
are not alone responsible for the continuing lack of diversity i n the composition
of the judiciary. Deeper social, economic and political factors are evidently at
work, elucidation of whichwould require an account of, for example, social and
economic structures, cultural norms and political in£uences, all of which a¡ect
the relevant institutions and actors. A full analysis would also need to engage
further withwork thatanalyses howidentity interactswith experience toproduce
systematic group-based inequality, exclusion and disadvantage in the legalprofes-
sion and in professional and public life more generally.
3
Our contention is simply
that we have identi¢ed defects in recent measures taken in England and Wales
regarding judicial appointme nts that independently impede change. Further-
more, our analysis of UK equality law seeks to demonstrate that eventhe general
law which is explicitly concerned with the pursuit of equality re£ects non-legal
forces that support the judicial status quo and may interact with these forces
further to determi ne that change does not occur.
4
The necessary ¢rst step in developing these arguments is to scrutinise the legal
profession, since this is the body that provides the primary pool of potential
judges.
5
In doing so we demonstrate that the profession plays a gate-keeping role
that gives rise to the translation of entrenched group-based identity hierarchies
from legal practice into the judiciary. Segmented and strati¢ed recruitment pools
for di¡erent categories of judicial post mean that the legal profession, in practice,
polices accessibil ity to the di¡erent sections of the judiciary, including its highest
echelons.The e¡ect is that the judiciary, and especial lythe senior judiciary, re£ects
the systematic disadvantage and marginalisation in the legal profession of certain
identity groups; notably but not exclusively, women and members of ethnic
minorities. It is also signi¢cant that our mapping of the legal profession and the
judiciary not only uncovers the close match in identity terms in the power struc-
3See, eg, D. Wilkins and G.M. Gulati,‘Why are there so few black lawyers in corporate law ¢rms?
An institutional analysis’(1996) 84 CaliforniaL aw Review 496;P.Thomas (ed),DiscriminatingLawyers
(London: Cavendish Publishing, 2000); U. Schultz and G. Shaw (eds), Wom e n i n th e Wo r l d ’s L e ga l
Profession, An International Study (Oxford, Hart Publishing, 2003); D. Wilkins, ‘From‘‘Separate is
Inherently Unequal’’ to ‘‘Diversity is G ood for Business’’:The Rise of Market-Based Diversity
Arguments and the Fateof the Black Corporate Bar’(2004)117HarvardLaw Review 1548; H.Som-
merlad,‘‘‘Becomi ng’’ a lawyer: gender and the processes of professional identity formation’ in E.
Sheehy and S. McIntyre (eds) Calling for Change:Women, Lawand the Legal Profession (Ottawa: Uni-
versity of OttawaPress, 2006); H. Sommerlad,‘Researching andTheorising the Processes of Pro-
fessional Identity Formation’ (2007) 32 JLS 190.
4Westart from the premise that there is a broad consensus within the legal profession, the judiciary
and the government, as wel l as the public at large, that the advent of a more diverse judiciary is
important. See, for example: B. Hale ‘Equality and the Judiciary: Why Should WeWant More
WomenJudges’ [2001] PL 489; the then Lord Chancellor, Lord Falconer,‘Increas ing judicial diver-
sity: the next steps’speech for Commission for Judicial Appointments,November 2005; the then
Minister for Justice and LordC hancellor,Jack Straw’s speech at the launch of the Law Society ‘Mar-
kets,Justice and Legal Ethics’ campaign,March 2008;The Lord Chief Justice, Lord Judge,‘Encoura-
ging Diversity in the Judiciary’speech at The Minority Lawyers’Conference, April 2009 and the
2010 Panel Report, n 2 above.
5While non-practising lawyers, in particular academics, are often eligible for judicial o⁄ce, and
their appointment has been recognised as one way of increasing diversity i n the judiciary, in prac-
tice the recruitment pool remains almost exclusively composedof practitioners. For this reason we
concentrate on issues arising in relation to the legal profession.
The Legal Profession as Gatekeeper to the Judiciary
246 r2011The Authors.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(2) 245^271
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