What is the Best? Judging the Judges.

Sir John Thomas has been announced as  the new Lord Chief Justice, taking over from Lord Judge in October. He will undoubtedly be an excellent appointment – intelligent, experienced, clear, decisive – but despite this there has been widespread comment that he is a white middle-aged man, and as such should have been passed over in favour of Lady Justice Hallett (a woman), or a suitable candidate from the BME community. There was similar comment when Lady Hale failed to be appointed President of the Supreme Court, missing out to Lord Neuberger.

Much the same points are raised when judges are appointed in the lower courts, or when QCs are picked. Why are there so many white middle-aged men? Should we balance things up a bit?

This brings up a number of interesting questions. The first is whether the selection is unfair because the process is biased against other candidates. Once upon a time when selection was based on the tap on the shoulder this was almost certainly the case. Now, when the process is full of “person specifications” and structured interviews and so on it is much less likely, and although still possible, I think that most observers would say that, by and large, the best candidates are selected.

So the second question is whether this is because inadequate numbers of suitably qualified other candidates apply. The answer is almost certainly yes. The reason is historical. Candidates for the judiciary are generally in their fifties, having spent many years building up the experience and knowledge that the post requires. Sir John Thomas is 65, and Lady Hallett 63, reflecting the elevated level of the post. They would have entered the profession in the early 1970s, when virtually all barristers and indeed most solicitors were white men. I remember how unusual it was to appear before a female judge when I started my career in the late 1970s, and can only recall Elizabeth Butler-Sloss, who sat as a Registrar in the Family Division. It has taken many years for women, and for members of the ethnic communities, to take their places as lawyers. The reason for this is something for another day. But the result has been that while there are almost equal numbers of men and women joining the profession now, there are still only 5 female members of the Court of Appeal (out of 38). It takes time for the candidates to work through, and only now are the numbers getting at all representative. In the next appointment of 4 members, to replace forthcoming retirements, there will be 2 men and 2 women. In the lower judiciary things are much more even, with virtually equal appointments of male and female District Judges. But a significant inequality remains at the top.

Moving on from there some people ask what can be done to even things up. Are there aspects of a legal career and judicial preparation that are discouraging for a woman or somebody from a minority community? Can these be changed? Is child-care an issue? Or discrimination? Is it more difficult to get a tenancy as a barrister, or a partnership as a solicitor? And should there be a quota for future appointments? How long should the present unsatisfactory balance be allowed to remain?

Others ask however whether this is a real issue. If the selection process is fair, and we appoint the best candidates, then in due course we will reach a better balance, if not equality. It may take years, but the alternative is to appoint a candidate who is rated as inferior to the best, solely because of their race or gender. Is that right? Isn’t it degrading and insulting to those appointed, and indeed to all women and minorities appointed, who will look as if they have only got there because of a quota? And won’t the public suffer because second-rate candidates are being put on the bench for “PC” reasons?

Against that you may say that although the Supreme Court and Court of Appeal, and the judiciary generally are not appointed to represent the public in any precise way, such as having the same mix of political views as the electorate hold, they do represent the public, and the state, in a more general way, and if a significant part of the population is unrepresented, or severely under-represented, then this says to parts of the community that they don’t count, and that matters. Furthermore, it removes certain areas of expertise and knowledge from the bench, which is less effective as a result.

This article isn’t going to produce the answer to these difficult questions. The purpose is to make it clear that the questions are difficult, and that simple solutions don’t work. The best solution is probably a combination of nudging, mentoring, and time. It isn’t something that can be changed overnight. And nor should it. We do after all want the best. Whatever that is.