Addressing the “lack of social diversity at the top of the legal profession” is an important part of improving judicial diversity, the Lord Chief Justice declared yesterday.
Lord Burnett also spoke of the need to investigate the issue of sexism in the professions and courts more closely.
Delivering the Treasurer’s Lecture at Middle Temple, the Lord Chief talked about how the judiciary was changing and has become more diverse and representative of the society it served.
“A diverse judiciary is not an optional extra. It is a necessity,” he emphasised.
The key, he said, was to increase the available pool from which appointments are made.
Lord Burnett posed the question of what more must be done to secure a broadly diverse judiciary and – as the source from which that was drawn – a properly diverse profession at its senior levels.
“An important part of the answer is to work on the lack of social diversity at the top of the legal profession,” he said.
“It lies in changes to the working practices of the professions and the judiciary too, looking critically at the way in which litigation is conducted and harnessing technology to improve those practices. And the culture across the legal professions must be supportive of all.
“It may lie in further and better outreach and support programmes. Whatever the answer, the responsibility lies on us all.”
He cited a recent speech by Sir Geoffrey Vos, Chancellor of the High Court, in which he questioned whether the working practices and culture both in solicitors’ offices and at the Bar, coupled with the way in which high-value litigation was conducted, were in part responsible for the low proportion of women at the top of the professions.
There were also the recent stories of the sexism faced by some women at the criminal Bar.
Lord Burnett said: “I have little doubt that this is a significant feature which needs further investigation and consideration, both by the professions and the judiciary.
“A handful of unnamed judges have been criticised. Any inappropriate conduct is likely to have been captured on a digital recording.
“This alleged behaviour should be called out and then it will be dealt with either by the leadership judges or within the formal, independent complaints procedure for which the Lord Chancellor and I are responsible.
“Judges must behave with courtesy and respect for all who appear in our courts and tribunals and there will be little tolerance of those few who do not.”
The Lord Chief said there was “no doubt” that the rate of progress on diversity in the judiciary has improved since the creation of the Judicial Appointments Commission, of which he is a former vice-chair.
“Change is happening. That is a matter for quiet satisfaction because it has come about as a result of the efforts of very many people; but it is not a matter for complacency.
“As with the legal profession, more needs to be done to secure the greater and more representative transition of female and ethnic minority judges into the senior judiciary.”
Lord Burnett suggested that, in the past, “there was perhaps too great a reliance on the belief that time, and time alone would secure a diverse judiciary”.
But, he continued, “experience has shown that more than time is needed. Co-ordinated action will encourage suitably qualified individuals to apply, and to do so with appropriate support”.
He was, however, “deeply sceptical of targets because, as has been seen in other areas of life, they are capable of distorting behaviour and might undermine the statutory merit principle”.
Lord Burnett continued: “My experience of involvement in judicial appointments… makes me fairly certain that further external encouragement to the JAC to recommend for appointment diverse candidates is not what is needed.
“My scepticism about targets extends to principled opposition to quotas. They are not compatible with appointment on merit nor, ultimately, in sustaining public confidence in the judiciary.
“They would undermine the overall standing of the judiciary and fatally undermine the authority of judges who were known or thought to be ‘quota judges’.”
Nobody would support the notion of surgeons being appointed by quota, he said: “Judges at every level make important decisions that fundamentally affect the parties in the proceedings before them.
“Those parties are entitled to assume that the judges they appear before were the best available for appointment judged by reference to criteria which are objective and internationally recognised.”