My Lords, I said at Second Reading that I regarded the area of judicial diversity as a significant one for the improvement of the Bill. Amendment 2 is an attempt—drawn as widely as possible while keeping it within scope—to retain the Government’s focus on the need to have judicial diversity at the centre of their programme for the modernisation of the courts.
I am not one who believes that the Government do not understand the need for the judiciary to look, feel, seem and actually be more similar to and representative of the public at large, whose cases and disputes it is their job to determine and resolve. Often, such disputes involve very human problems. Only as recently as 24 April, the Lord Chancellor wrote jointly with the Lord Chief Justice and the noble Lord, Lord Kakkar, the chairman of the Judicial Appointments Commission, to your Lordships’ Constitution Committee to announce a funded programme to encourage applicants for judicial office, aimed partly at increasing the diversity of successful applicants by providing targeted support to underrepresented groups.
However, I emphasise that the importance of this issue has become all the greater as the number of unrepresented litigants in civil and criminal courts has increased. It was bad, but not so bad perhaps, when advocates looked and sounded like me and perhaps the noble Lord, Lord Pannick, and we addressed judges in court who looked and sounded like the former judges in this House, for whom we all have the greatest of respect and affection. But a great deal of modern litigation in courts and a great many cases in tribunals are not like that at all. Litigants are often representing themselves or are represented by informal McKenzie friends. It makes it no better that they are often opposed by more powerful parties represented by qualified lawyers whom they perceive, probably rightly, in part at least, as having an understanding with the judge or tribunal that leaves them at a serious disadvantage. I fear that, for too many unrepresented litigants, we lawyers, judges and tribunal members often sound as if we come from another planet.
Judicial diversity will not solve all these problems but it can do a lot to help. We have come a long way in securing better representation of women on the Bench. It is now somewhere between 20% and 25%, but that is nowhere near enough. The recent and frankly long-overdue appointment to the Supreme Court of Lady Arden has of course helped, but we need the appointment of more women at all levels of the judiciary. In 2010, the report of the advisory panel chaired by the noble Baroness, Lady Neuberger, on improving judicial diversity pointed out that there was no easy route to achieving a representative judiciary. It made a large number of important recommendations which were widely welcomed by the professions and the Bench but which, frankly, have not been addressed with the full-hearted commitment that they demanded.
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From 2010 to 2014 we had the work of the judicial diversity task force which reported on progress in implementing the recommendations of the noble Baroness, Lady Neuberger, but which was left with the uncomfortable view that there was still a great deal to
be done. Since then there has been some progress, but it has been painfully slow. Even the most enthusiastic optimist would struggle to discern even the beginnings of anything approaching a transformation. In 2013 we had the so-called tipping-point amendment to the Crime and Courts Act, which I enthusiastically supported, but which, while useful, I do not now perceive as having made a great deal of difference. I have no doubt that the Judicial Appointments Board under the chairmanship of the noble Lord, Lord Kakkar, has continued to press for further improvement. So, why is there the relative failure?
On the recruitment of more women, I suspect that we have simply failed to acknowledge and understand the way in which women’s expectations of work/life balance have changed. Women, particularly professional women, are tending to have children later. That means that their childcare responsibilities carry on later into their lives. At the same time, an ageing population means that obligations to look after elderly parents go on longer. These long-term developments have all been happening against a background where judges have been appointed at a younger age than before and where they have had to serve longer in order to qualify for a full pension.
At the same time, in something of a perfect storm, changes and efficiencies—in themselves desirable—in court procedures have meant that the volume of pretrial reading and the writing of reserved judgments have increased exponentially, so that the demands on judges’ out-of-court time have become ever more severe. It is no wonder that against that background the Lord Chief Justice had cause to complain in his Mansion House speech last week that, for the fourth year running, High Court vacancies would not be filled and there was a risk that we would be 20% short of High Court judges. The difficulties of accepting an appointment are therefore much more serious for women, as well as for men, with caring responsibilities. Just imagine being sent on the circuit for six weeks as a civil lawyer to try crime with one child at home doing GCSEs, another struggling with A-levels and an elderly parent in poor health who needs regular attention.
The difficulty lies not just with attracting women to apply for the Bench. We have been hopelessly unsuccessful in attracting ethnic minority applicants to the Bench and to tribunal membership. With 14% of the population being of ethnic minority origin, there are no Court of Appeal judges of ethnic minority origin and only 1% of High Court judges and 1.4% of circuit judges are of ethnic minority origin. The recommendations made by Justice in its 2017 paper Increasing Judicial Diversity would make a good start. But that means positive targets for selection bodies and an obligation to report on progress to the Justice Select Committee. It means a responsibility on selectors and the judiciary as a whole to play their part in encouraging more diverse candidates to apply. It involves assembling lists or pools of judges who might be suitable for each court or tribunal, and the flexibility in deployment in this Bill may play a part in that. It involves an external and rigorous review of selection processes and trying to give junior lawyers who join the Bench at a lower level a realistic chance of being promoted to more
senior positions. Most of all, it involves improving the attraction of a judicial career and working conditions. It is not necessarily the case that flexible working times or part-time working will always be the answer. We need to develop a combination of working patterns that attracts, suits and retains the maximum number of diverse candidates. We need to make a positive effort to search out candidates from regional solicitors’ firms and sets of chambers, well outside the traditional range of metropolitan firms and metropolitan sets.
In turn, the professions need to work to ensure that life as a junior lawyer is both rewarding and flexible enough to fit in with family life, because we need to help at that stage of people’s careers as well. While at the moment solicitors do this better than barristers, both sides of the profession are pretty hopeless. Junior solicitors in corporate departments or in litigation can be kept in their offices well into the night for weeks on end. That would not be acceptable in many organisations in either the public or private sector and is no way to encourage diversity, and if we do not secure diverse professions then we will not secure diverse judges and tribunal members. We must all do better.
I hope that flexible deployment may help. It should help in building up a pool of suitable candidates. However, I sound a note of caution about judge arbitrators, whose appointment is encouraged in the Bill. I appear as an advocate in a number of arbitrations, and a system is developing in which there is a kind of macho determination to make everyone appearing in an arbitration work as hard as possible so as to conclude hearings in the shortest possible time. That is often enough to put off able advocates from this kind of work. Arbitrations have a great role to play in dispute resolution but those involved in them at all levels also have their role to play in broadening and improving professional and judicial life.
These solutions are not easy to achieve but they are perceptible and the goal is important. I hope my modest amendment to this limited Bill may play its part in moving us all towards that goal. I beg to move.