RESISTANCE TO DIVERSITY AMONG JUDGES IS MISGUIDED
Lady Hale’s correct – diversity is a constitutional issue but a more representative bench would make for better decisions.
Lady Hale and Lady Neuberger gave evidence to the Lords constitution committee on the importance of increasing diversity of the judiciary and the potential for it to change the outcome of cases recently, but failed to highlight the universality of the issue.
Hale, the only female justice in the history of the supreme court and the law lords, stated before the committee that “the lack of diversity on the bench is a constitutional issue”. Both Hale and Neuberger, the former chair of the Advisory Panel on Judicial Diversity, stressed their disappointment and concern regarding the pace of reform of the upper echelons of the judiciary.
Focusing on the contentious point that justices of the supreme court approach issues differently based on their background, Hale stated that a lack of diversity was affecting the substantive results of cases. Stressing that “in disputed points you need a diversity of perspectives and life experiences to get the best possible results”, she believesincreasing diversity could change the results of a range of cases.
She gave the example of when a mother could receive damages for having an “unwanted” child. This, she suggested, was an issue on which the gender of the justice could make a significant difference, as male judges were more likely to view the issue as one of financial loss while female judges would see it as a wrongful invasion of bodily integrity and autonomy. This argument was backed up by Neuberger, who, having spoken to judges in supreme courts around the world, found that the gender of the justices does matter to the outcome, particularly in cases such as childbirth and rape.
These arguments are specific to the judiciary, recognising the unique role that judges play as arbiters of the rules of society. However, a fundamental argument for diversity was once again overlooked, as it was last week when The Guardian interviewed justices of the supreme court. While the committee’s discussions drew on provisions of the Equality Act and discussed the outlooks for women in other professions and the improvements that have been made there, the committee did not examine the key underlying issue of equality in its true sense.
While Hale remarked that “nobody’s suggesting that quality should be diluted, and there are other people out there who could do the job equally well”, it was not expressly recognised that diversity increases the quality of judicial decision-making in its most traditional sense.
As in every profession, increasing access and diversity to the top of the profession ensures that those who reach the top are the best for the job. Unless one believes that not one lawyer of ethnic minority and only one female lawyer has ever matched the academic calibre of the remaining justices of the House of Lords and the supreme court, then it becomes clear that our appointed justices throughout history, with respect, have simply not been the best possible in terms of traditional, intellectual merit.
This point underscores the fact that much of the resistance to increasing diversity is misguided. In the interview with Owen Bowcott, Lord Hope stated that while he is in favour of increased diversity, it must not prevail over merit, and that “the system depends on skilled people who can actually do the job and we can’t afford to have passengers here, just in the name of diversity.” Increasing diversity is not, however, merely for diversity’s sake.
Not only do different judges from different backgrounds potentially bring different viewpoints to the table, and thereby alter the outcome of cases, as suggested by Hale and Neuberger, they ensure that our justices remain those most qualified on whatever definition of merit is used. Any argument that suggests that diversity will affect the quality of decision-making is regrettable; it risks being offensive to the highly qualified people of minority status that are unable to access positions in the supreme court. Only when women, ethnic minorities, people of all sexual orientation and people with disabilities are both officially and practically able to become justices of the court will we be able to be sure that we are appointing those most qualified for the job.
The importance of this general point is exacerbated in the case of the judiciary. As Lady Hale states, “fairness and equality are central values of the law, and the courts should reflect this. Everyone should be able to see the courts as their courts, there for all sections of society and not just for some.”
Lady Neuberger offered concrete suggestions as to how diversity could be increased, suggesting increased mentoring and appraisals of judges of lower courts. What is clear is that regarding the issue as constitutional heightens the importance of guaranteeing that the upper echelons of our judiciary are accessible to the best candidates, regardless of their background, and ensuring our judiciary is reflective of our society.