In recent years, increased judicial diversity has been widely discussed in England and Wales. As of 2006, a Judicial Appointments Commission was established with the objective of increasing diversity in the judicial application process (Malleson, 2022). However, the relevance of judicial diversity has also been debated, with some saying that it is irrelevant. However, judges have significant constitutional and societal authority to make important judgments. This essay argues that diversity is important for the courts and plays a key role in promoting equality in decision-making.
Diversity in the UK Supreme Court Today
Diversity is the belief that each person is unique and has a function in society (Hunt, Layton, and Prince, 2015). A person’s worldview, viewpoint, and attitude are shaped by their distinctions. Diversity is about recognizing, understanding and appreciating distinctions caused by factors such as race, gender, culture, religion (Hunt, Layton, and Prince, 2015). The UK Supreme Court Justices have the ability to make final decisions and judgments with respect to debatable matters of law of wide public interest arising from civil and criminal proceedings in the UK (The Supreme Court, n.d.). They also consider matters involving devolved governments, parliaments, and assemblies (The Supreme Court, n.d.).
The Supreme Court justices make decisions when the law is vague, ambiguous, or contradictory (Malleson, 2022). Almost every case considered by the UK Supreme Court is one where no clear legal rule governs the conclusion. The Court’s very modest docket is dominated by cases involving “difficult problems of principle.” In other circumstances, the Justices’ options are confined to narrow or technical legal concerns, even though they are significant within a particular legal sector. These challenging cases force the Justices to select between legally viable opposing arguments based on their personal convictions, either explicitly or indirectly. A deeper level of principle usually then steers the approach taken. This is where diversity comes in. Individual variations among the Justices may directly affect the outcome of a case.
There is a major deficit of diversity on the current Supreme Court. The court has 10 justices since Lord Lloyd-Jones retired on January 13, 2022, while Lady Arden of Heswall retired on January 24, 2022, leaving two vacancies (The Supreme Court, 2022). Only one of the ten is female (Lady Rose of Colmworth), and none is BAME (BAME is an umbrella word used in the UK to designate non-white races.) This composition issue points to a difficulty with diversity influencing selection of justices.
Sections 25 to 31 and Schedule 8 of the Constitutional Reform Act 2005, as modified by the Crime and Courts Act 2013, regulate the appointment of Supreme Court Justices. (Supreme Court, n.d.). The selecting process is multi-step. When a vacancy among the Justices opens, an impartial selection committee is formed. The group includes the President of the Supreme Court, a senior UK judge who is not a Supreme Court Justice, and representatives from England, Wales, and Northern Ireland. Selection commissions have traditionally posted job positions and invited written responses, even though it is not required by law. Candidates for justice appointments must have held a high judicial office for two years, or have met the judicial appointment eligibility condition for 15 years, or be a qualified practitioner for 15 years, according to Section 25 of the 2005 Act (The Supreme Court, n.d.).
The process of deliberations begins with the selection committee contacting top politicians and judges throughout the UK before shortlisting applicants based on merit (The Supreme Court, n.d.). A report is sent to the Lord Chancellor for evaluation once the shortlisted candidates have been interviewed. The Lord Chancellor has the power to accept, deny, or urge the commission to review its decision. The Prime Minister sends a proposition to the Queen as immediately the Lord Chancellor approves it. The Prime Minister’s office announces after official approval by Her Majesty (The Supreme Court, n.d.).
The Supreme Court selection procedure, as described above, is highly influences by individual judges and politicians. Their attitude on diversity in the judiciary influences who is shortlisted and chosen for these jobs. Leaving this procedure up to the judges and politicians opens a gap that may generate a negative bias towards achieving Supreme Court justice diversity. Amending the selection process to include a specific law or statutory requirement requiring that a percentage of the Supreme Court justices be women and also include justices from the BAME communities would be effective in ensuring more diversity.
The Impact of Diversity on How Decisions Are Reached
It is vital to recognize the value of a diverse supreme court. First, a diverse court helps underrepresented populations trust the legal system. According to a 2010 study by Scherer and Curry, having more Black judges on the bench improved Black Americans’ perceptions of the courts’ trustworthiness. The Supreme Court’s job is to deliver justice fairly and evenly. It is impossible for the public to trust the court if the communities it is meant to protect are excluded from its bench composition.
On the other hand, having a proportion of female justices and judges has been found to symbolize diversity. This is vital in the administration of justice. A paper by Rosemary Hunter attempted to explore the relevance of women judges in the judiciary and how this effects decision making. The paper found that having female judges strengthens the judiciary’s democratic legitimacy, since a female bench represents more of the society it serves than a male court (Hunter, 2015). Second, feminine justices are more likely to sympathize with female petitioners and witnesses, especially female crime victims, and so provide a smoother court atmosphere. It also protects female attorneys from sexist remarks or other forms of gender prejudice from the bench, as well as outright sexism and gender bias by those in the courtroom. Another research found that female justices are more likely than male judges to notice and resolve gender bias in the trial (Lonsway, 2002) According to this research, appointing female judges would add a gender sensitivity to decision-making and, as a result, influence case results (at least periodically).
An equally diverse court also creates a richer jurisprudence. Diversity on the bench ensures ongoing feedback from judges who have seen challenges from many perspectives. This includes the Supreme Court judges. Where individuals come from, what they’ve been through, and who they’ve spent time with all influence decisions. As an example, one recent research indicated that white federal district court judges imposed more restrictions on pretrial release than Black judges (Boldt et al., 2021). Another recent research indicated that former corporate attorneys and prosecutors, who make nearly 70% of current federal judges in the US, were more likely to rule against putative victims in employment discrimination complaints (Shepherd, 2021). According to a 2013 study by Kastellec, when a female judge or a person of color sits on an appellate court, their male or white counterparts are more likely to side with plaintiffs in civil rights cases. All the above studies show how personal experience impacts judges’ views of the law.
What Has Been Done To Tackle the Problem of Diversity in the UK Supreme Court?
Various attempts have been taken in the past to ensure judicial diversity. In 2010, the Advisory Panel on Judicial Diversity, for example, released 53 suggestions aimed at making the court more diverse (Neuberger, 2010). A Judicial Diversity Taskforce was in charge of the recommendations, and it issued three annual status reports (Rackley, 2012). In 2011, the House of Lords Constitution Committee looked at judicial nominations, with a particular emphasis on judicial diversity (Delaney, 2016). By law, the Lord Chancellor and Lord Chief Justice must now encourage judicial diversity. Also, in a report published by the Shadow Secretary of State for Justice in 2014, one of the recommendations was to accelerate progress toward a more diverse court (Bindman and Monaghan, 2014). The Supreme Court adopted a four-year strategy in 2016 to incorporate fairness and diversity into all it does (The Supreme Court, n.d.).
Today, the UK Supreme Court acknowledges that diversity enriches the court to better serve the public and that’s why it launched the Judicial Diversity and Inclusion Strategy 2021-2025 (The Supreme Court, 2021). This strategy aims to help underrepresented groups advance into judicial jobs and to provide an inclusive and courteous workplace for justices (The Supreme Court, 2021). The primary goal is to foster an inclusive and courteous culture at the Court, where all judges support and lead the strategy (The Supreme Court, 2021). The policy also intends to help underrepresented groups advance in the court. It also aims to increase the number of eligible applications from underrepresented groups to the UK Supreme Court and seeks to actively promote diversity and inclusion among lawyers and the public (The Supreme Court, 2021). Finally, it aims to guarantee that the court upholds the Equality Act 2010 in order to eradicate all forms of illegal discrimination, harassment, and victimization. The strategy also outlines how each goal will be attained by introducing an action plan with specific dates of action (The Supreme Court, 2021).
Diversity is, therefore, an important factor in Supreme Court decision-making. Research suggests that a diverse judiciary improves judicial decision-making and public trust in the Supreme Court’s legitimacy. Having a diverse bench reduces prejudice and leads to better decisions. While the present Supreme Court makeup lacks diversity, the court has been and is to expand its diversity, with the latest being the judicial diversity and inclusion agenda.
Bindman, G. and Monaghan, K., 2014. Judicial diversity: Accelerating change. Retrieved, 11, p.2017.
Boldt, E.D., Boyd, C.L., Carlos, R.F. and Baker, M.E., 2021. The Effects of Judge Race and Sex on Pretrial Detention Decisions. Justice System Journal, pp.1-39.
Delaney, E., 2016. Searching for constitutional meaning in institutional design: The debate over judicial appointments in the United Kingdom. International Journal of Constitutional Law, 14(3), pp.752-768.
Hunt, V., Layton, D. and Prince, S., 2015. Diversity matters. McKinsey & Company, 1(1), pp.15-29.
Hunter, R., 2015. More than just a different face? Judicial diversity and decision-making. Current legal problems, 68(1), pp.119-141.
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Lonsway, K.A., Freeman, L.V., Cortina, L.M., Magley, V.J. and Fitzgerald, L.F., 2002. Understanding the judicial role in addressing gender bias: A view from the Eighth Circuit Federal Court System. Law & Social Inquiry, 27(2), pp.205-234.
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