For 796 years, since Magna Carta, judges in this country have played a vital role in upholding the unwritten constitution. They guarantee protection to each individual against arbitrary action by the State. The current ranks of the judiciary include some of the best minds of a generation. At the very top of the profession, people such as Lord Judge and Baroness Hale of Richmond combine integrity, intellect and independence with an emotional intelligence that gives them insights into the anguished, flawed or furious human beings who come before them.
Yet the cariacature of the remote, pompous judge is not without substance. As judicial decisions have become increasingly the subject of public debate in recent years, there have been corresponding calls for judges to look and sound more like the people coming up in front of them, and capable of empathy.
The creation of the Supreme Court, replacing the House of Lords as the highest court in the land, has led to a new level of public interest in its members. The incorporation of the Human Rights Act into British law has brought a new international dimension to many cases. It has become more obvious that the judiciary is heavily white and male; and this has become more worrying to the public.
It is therefore time to ask whether the system for appointing judges is producing enough people with the right qualities to secure public confidence. It would be absolutely wrong to impose quotas, or to demand that the bench should mirror the population. But it is worth asking why so few academics and solicitors apply. Not a single solicitor has been appointed directly to the High Court in the past decade, despite solicitors making up 90 per cent of the legal profession. The Bench is very much the preserve of the Bar, and even a subset of the Bar: the people who, it is sometimes said, “go to the opera”.
The existing judiciary has too strong an influence over appointments. Many judges, perhaps unwittingly, give glowing references to lawyers in their own image; barristers who appear regularly in court and who may have been to the same university. This system excludes many able lawyers, including white men. It needs to be opened up. The inquiry by the House of Lords Constitution Committee, into whether the system for appointing judges is fair, independent, transparent and open, should consider how to change the references system.
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While there are fewer ethnic minority and female candidates available, there is a pool of able people who do not apply to the bench, knowing that they do not “fit”. One way to change this would be for the Judicial Appointments Commission to open the references to scrutiny. The judicial complaints system should also be made transparent.
It is refreshing to see powerful voices lining up to change the status quo. Baroness Neuberger has suggested that the concept of a “judicial career” should be established to help people to move up through the courts. Lord Collins of Mapesbury has argued for less emphasis on advocacy in making appointments. The Lords committee should focus not just on diversity per se, but on the self-perpetuating biases in the system; biases that must be eradicated if judicial appointments are to be as fair as their judgments should be.