Why Is the Equal Merit Principle (Almost) Straightforwardly Wrong?

DOIhttp://doi.org/10.1111/1468-2230.12302
Published date01 November 2017
Date01 November 2017
AuthorTamas Gyorfi
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Why Is the Equal Merit Principle (Almost)
Straightforwardly Wrong?
Tamas Gyo r
This article challenges the ‘Equal Merit Principle’, introduced to the judicial appointment
process by the Crime and Courts Act 2013. The author argues that this principle does not take
diversity seriously enough and none of its possible justifications stand up to close scrutiny. The
author also claims that the doctrine that judges should be appointed solely on the basis of merit
is either wrong, for the very same reasons as the Equal Merit Principle, or rather uninformative
because it fails to give sufficient guidance to those who select judges.
INTRODUCTION
It is commonplace that the UK Supreme Court (previously the Appellate
Committee of the House of Lords) is less diverse than the highest courts of most
Western democracies.1The typical judge of the Court is a white, heterosexual
male from an upper middle-class background, and was privately educated and
graduated from Oxford or Cambridge. The professional background of the
justices also shows a fairly consistent pattern. Most of them come from a
small number of commercial chambers based in London.2By the 1990s this
homogeneity ‘had become the subject of growing concern as the lack of
diversity in the make-up of the Court increasingly stood in contrast to the
changing composition of many other public institutions.’3
Since then the judicial appointment process has undergone a major change.
The Constitutional Reform Act 2005 (CRA) has replaced the old ‘tapping
on the shoulder’ method of appointment with a transparent and open process.
Increasing diversity has become one of the declared objectives of the legal
system4and the issue has attracted serious attention from lawyers, academics
Senior Lecturer, University of Aberdeen. The author would like to thank Abbe Brown and Alan
Paterson for their helpful comments. Any remaining errors are the responsibility of the author. All
websites cited were last accessed on 15 December 2016.
1 For comparative data, see C. Thomas, ‘Judicial Diversity in the United Kingdom and Other
Jurisdictions’ (2005) at https://www.ucl.ac.uk/laws/judicial-institute/files/Judicial_Diversity_
in_the_UK_and_other_jurisdictions.pdf; A. Paterson and C. Paterson, ‘Guarding the
Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary’ (2012) at
https://pure.strath.ac.uk/portal/files/14551390/guarding_the_guardians.pdf; P. H. Russell and
K. Malleson (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the
World (Toronto:University of Toronto Press, 2006).
2 For the social and professional makeup of the Appellate Committee of the House of Lords, see
K. Malleson, ‘Appointments to the House of Lords: Who Goes Upstairs’ in L. Blom-Cooper, B.
Dickson and G. Drewry (eds), The Judicial House of Lords: 1876-2009 (Oxford: OUP, 2009).
3ibid, 114.
4 For a recent view on the issue, see ‘UK’s top judge unveils plan to make supreme court
more diverse’ The Guardian 21 November 2016 at https://www.theguardian.com/law/
2016/nov/21/lord-neuberger-uks-top-judge-unveils-supreme-court-diversity-plan-retirement.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017)80(6) MLR 1052–1072
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Tam a s G yo rfi
and politicians alike.5Today, there is a lively public debate about how the
judiciary can be made more diverse.6The Judicial Appointments Commission
(JAC) has both a statutory duty and a well-defined action plan to encourage
diversity.7Access to regularly updated data on the make-up of the judiciary
is freely available and makes the monitoring of appointments possible. As a
result of these efforts, the British judiciary has become more diverse than it was
before.8
As part of these developments, the Crime and Courts Act 2013 has intro-
duced a new element into the selection process, the so-called Equal Merit
Principle. Although judges should be selected ‘solely on merit’9,iftwocandi-
dates have equal merit, this process allows the selecting body to prefer one of
them over the other for the purpose of increasing diver sity.10
The aim of this paper is not to assess the success or failure of all these efforts
to advance diversity.11 More generally, I do not tackle the practical question of
how the judiciary can be made more diverse. Instead, I focus on the theoretical
question of how much diver sity is desirable. I will specifically challenge the
Equal Merit Principle and argue that it does not take diversity seriously enough
and none of the possible justifications of the principle stand up to close scrutiny.
I also claim that the ‘Solely on Merit Principle’ is either wrong, for the very
same reasons as the Equal Merit Principle, or rather uninformative since it fails
to give sufficient guidance to those who select judges.
The rest of this introduction makes some preliminary points, while the
remaining part of the paper is divided into three sections. The next section
distinguishes three possible readings of the Equal Merit Principle and argues that
none of them are able to make the principle attractive. After that, I challenge an
alternative argumentative strategy developed most skilfully by Erika Rackley,
which aims to eliminate the conflict between merit and diversity. In the final
section, I address some potential objections to my position and fine-tune the
main argument of the paper by introducing a few qualifications.
In the course of my analysis, I will set aside two possible objections to
the Equal Merit Principle. First, some scholars have argued that merit is so
subjective that it is impossible to use it as a selection criterion.12 If correct,
5 For a detailed survey of the debate, see Annex iii to the ‘The Report of the Advisory
Panel on Judicial Diversity 2010’ at https://www.ucl.ac.uk/laws/judicial-institute/files/
Report_of_the_Advisory_Panel_on_Judicial_Diversity.pdf.
6 See, for example, House of Lords Select Committee on the Constitution, ‘Judicial
Appointments’ 25th Report (2010–12) at http://www.publications.parliament.uk/pa/ld201012/
ldselect/ldconst/272/272.pdf.
7 ‘Judicial Appointments Commission - DiversityStrategy’ at https://jac.judiciary.gov.uk/diversity-
strategy.
8 ‘Judicial Diversity Statistics 2016’ at https://www.judiciary.gov.uk/wp-content/uploads/2016/
07/judicial-diversity-statistics-2016-2.pdf.
9 CRA, s 63(2). Supreme Court justices must be appointed on merit: s 27(5).
10 CRA, ss 63(4), 27(5A)(b).
11 See, for example, K. Malleson, ‘Diversity in the Judiciary: The Case For Positive Action’ (2009)
36 Journal of Law and Society 376; L. Barmes and K. Malleson, ‘The Legal Profession as Gatekeeper
to the Judiciary: Design Faults in Measures to Enhance Diversity’ (2011) 74 MLR 245.
12 D.Roithmayr, ‘Deconstructing the Distinction between Bias and Merit’ (1997) 85 California Law
Review 1449; R. Delgado, ‘Rodrigo’s Tenth Chronicle: Merit and Affirmative Action’ (1994) 83
Georgia Law Journal 1711.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(6) MLR 1052–1072 1053

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