The lack of judges from a black, Asian and minority ethnic (BAME) background is down to discrimination, according to the MP who investigated the treatment of BAME people in the criminal justice system.
Labour’s David Lammy said that, “for too long, the judiciary have treated its eligible pool as the scapegoat for its homogeneity”.
Mr Lammy, a non-practising barrister and former justice minister, was writing in the weekly newsletter of the Criminal Bar Association, about his 2017 review, which made 35 recommendations, including a call for a national target to achieve a representative judiciary.
The Ministry of Justice rejected this, “even though other groups were calling for me to recommend a much more stringent quota”, Mr Lammy observed.
“Issues of trust with BAME communities are not just relevant to the police. It is also hugely important that those in the highest positions of legal authority represent the communities over which they preside.
He said he had been told that, despite searching high and low for an explanation, the Judicial Appointments Commission (JAC) simply cannot find one, at least not one that is obvious, for the lack of BAME judicial representation.
Mr Lammy continued: “To me, however, the explanation is strikingly evident, and this self-proclaimed unfamiliarity makes it even more strikingly so. That’s because if people cannot say what is happening, it is likely that what is happening is discriminatory practice.
“This grounds my message today, a message that requires uncomfortable reflection: discrimination is not exhaustively conscious or deliberate. Invisibly generated but very visibly endured, prejudice is often the consequence of unconscious and implicit bias.
“However, the moment we deny our responsibility to redesign the very institutions that engender these racial biases is the moment that we refuse to overcome them.”
Mr Lammy said that, “for too long, the judiciary have treated its eligible pool as the scapegoat for its homogeneity”, and made the argument that racial diversity somehow supplanted appointment by merit.
“However, trading off racial diversity and meritocracy is not only implicitly prejudicial, but is a palpably deceitful way to hinder reform.
“Of course we should always look for ways to diversify the legal profession, but this simply cannot explain everything. That’s because BAME people are already in the system. The problem is that they disproportionately drop off at every stage of the application process.”
Mr Lammy wrote the article in the wake of his appearance before the House of Commons justice select committee as part of its work monitoring the progress in implementing his recommendations.
He told fellow MPs that when he asked the JAC to explain the difference in profile between those who applied for judicial post and those who succeeded in being appointed, “I detected a degree of complacency, frankly, in the system”.
He said this was such that “had we stuck with the old tap on the shoulder, we would have more diversity today than the £10m situation we set up, with a whole load of forms and a whole load of systems that still seem to weed out ethnic minority candidates”.
Mr Lammy also said: “My view is that you cannot be in the criminal justice business – you cannot be a prison officer or a prison governor; you cannot be a judge; you cannot be a probation officer; you cannot be in the CPS – if you are not in the business of racial difference and disproportionality. You have to be engaged in that subject.”