Judiciary Diversity and Separation of Powers in the UK

“The law the legal profession and the courts are there to serve the whole population, not just a small section of it. They should be as reflective of that as it is possible to be”

In this paper I will discuss the extent to which I agree with the statement above. The judicial diversity stats published 12 July 2018 show that 29% of court judges in England and Whales are female. I will examine the ways in which judicial diversity has been encouraged and assess whether there is still further work that needs to be done to achieve full diversity.

The State of Justice System in the UK

The justice system is one of the three branches of the state. The other two branches are the executive, or the government, and the legislature, which is the two Houses of Parliament. In most democracies these three branches of the state are separate from each other. They have roles and functions that are defined within written constitutions, preventing the concentration of power in any one branch and enabling each branch to serve as a check on the other two branches. This is known as separation of powers.

When pursuing a career within the law sector it has long been described as distinctly challenging for women and BAME to considerably progress to achieve what a comparable male colleague of the same level of education, intelligence and successes will within the same timeframes. It was only when the Sex Disqualification Act was given royal assent in 1919 that women were legally allowed to become Lawyers. According to the Law Society, women have represented more than 60% of entrants into the solicitor profession since 1990. Yet while just over half of practising solicitors are female, woman account for only 30% of partners in private practice2 which confirms that there is a lack of diversity. As it currently stands, of the 12 Justices in the Supreme Court, Lady Hale, the president of the Supreme Court and Lady Black are the only two female Justices. As discussed in an article by practising solicitors Anna Wong and Landy Marr Kats LLP, “Diversity on the bench enhances judicial impartiality as well as public confidence in the administration of justice. It is a truism that impartiality is essential to a well-functioning judiciary.  They arrive at the bench shaped by their experiences and by the perspectives of the communities from which they come”. This seems to be the forethought of most across the vast array of materials available on the subject, but the statistics do not project these thoughts.

Statistics and Cases

Upon study of the numbers given by the judiciary, since 2014 there has been a 7 percentage point increase in women’s representation among judges in the court across the board and of the 143 judges in the court that were appointed to a senior judicial role in 2018/19, 45% were women. But, Andrea Coomber, director of Justice, said: “Nearly three years since our last report there has been only modest progress towards a more diverse senior judiciary. Our senior judiciary continues to be dominated by white men. The judiciary play a critical role in our democracy and hold immense power in society. They can take away people’s liberty, their children, their rights and more. That such power is held by such an unrepresentative group of people – however meritorious – should be of concern to us all.” We as a country, need a diverse selection of judges because it is valuable. Only with adequate varied representation will our courts be able to understand a wide spectrum of experiences enjoyed, or suffered, by our diverse population.

Lady Hale has suggested that the Supreme Court may need to develop “some special provision, akin to that in Northern Ireland, to enable the appointing commissions to take racial or gender balance into account” when making appointments.

According to Honorable James Andrew Wynn, Jr, in his article Judicial diversity: when Independence meets Accountability, the more diverse a judiciary is the greater the judicial accountability and judicial independence. Judicial independence pre-supposes that judges are non-biased and make impartial decisions, while greater accountability is expected from popular and greater representation. Hence, if there is no diversity within a judiciary the chances of gaining either judicial independence or judicial accountability are farfetched, almost impossible. Judge Scalia clearly stated that “lack of judicial predisposition is neither desirable nor possible”. That statement conforms to the expectation that a judge’s judgment is based on his background, i.e. his racial, gender and ethnic experience. A judge’s ability to hear a case, interpret it and pass judgment is based on his coherent diverse experience and views. This then means that any judgments without considerable ideological and narrative judicial diversity or experiences without the relative advantage of an accountable or fairly independent judiciary would be biased and partial.

The United Kingdom parliament enacted the Race Relations Act 1976, which was to prevent discrimination based on race. If there is a misrepresentation of ethnic minorities in the judiciary, how would this Act be properly and fairly upheld? The case of Hasanali Khoja Vs the Metropolitan Police shows some evidence of this fact. Mr. Khoja a British citizen of both Indian and Muslim decent was employed by the Metropolitan police and head of the catering department. He claimed his rights were infringed upon when he informed his employers that he would be unable to cook food that contain pork as it is against his religion, but his employers insisted that he make pork sausages and bacon. He took the Metropolitan police to court and sued on the grounds of both Religious and Racial Discrimination and he lost the case. The judge’s decision was not in favour of the claimant. This shows how poorly represented some minorities are in the judiciary. His lawyer later claimed that the judge’s decision did not uphold the claimants freedom of expression, freedom of thought, conscience and religion, because he had the right not to cook pork and his employers by law are meant to accommodate his choice but they did not and were not punished for infringing on this right. If the judges that ruled over that case shared the same background as the defendant, be it Muslim or Indian the judgment may have been different because they may have had better understood the claimant’s position.

This lack of diversity in the judiciary can also lead to discrimination based on race especially when it comes to immigration issues. This is evident in the case of East African Asians vs. United Kingdom 1983, where the husbands of UK citizens were not allowed entrance to the UK despite the Commonwealth Immigration Act of 1962 which stated that citizens of the Commonwealth countries have guaranteed access to the United Kingdom. Despite this legislation these men were still denied access into the country. This case went against the Act and clearly violated the rights of claimants, as by deliberately singling out a group of people and subjecting them to differential treatment on the basis of race is racial discrimination and torture which goes against Article 3 of the Human Rights Act. It also violated article 8 and 14 because by refusing Commonwealth husbands of British citizen into the country, where the wives of these men have already gained entrance into the country constituted an intrusion with family life and discrimination contrary to both articles, it also went against article which is right to liberty and security of person the right is guaranteed and should be protected especially when there is an interference of that right by a public authority.

In conclusion, over the past ten years important steps have been taken to improve diversity in the judiciary. However, progress has been too slow, and interventions have, to date, been insufficient. The judiciary is still dominated by white and privately educated men. The United Kingdom remains significantly worse in terms of diversity than other European and common law jurisdictions. However, progress at the highest levels has remained stagnant.