More judges to work flexibly in latest diversity push

Burnett: Five-year plan coming shortly

More flexible working hours and a review of the eligibility criteria are part of the latest plan to improve diversity in the judiciary, especially in the senior ranks.

A new report which for the first time combined the diversity data of the legal professions, judicial appointments and the judiciary showed that those who apply have “considerably more legal experience than the minimum required by statute”, hinting at a push for lawyers to apply earlier in their careers.

Those applying for roles requiring a minimum of five years’ experience on average had 17 years, while those seeking the more senior roles requiring seven years of experience had actually been in practice for 27 years on average.

This links straight to diversity as the proportion of senior practitioners who are women and/or come from Black, Asian and minority ethnic (BAME) backgrounds is lower than in the more junior ranks.

The plan has been drawn up by the Judicial Diversity Forum (JDF), a body set up last year whose members are the Lord Chancellor, Lord Chief Justice, chair of the Judicial Appointments Commission, chair of the Legal Services Board and leaders of the Law Society, Bar Council and Chartered Institute of Legal Executives (CILEx).

The JDF – which stressed the importance of the different various professions’ efforts to improve diversity as vital – said that, while “significant progress” has been made since the Judicial Appointments Commission was set up in 2006, women remain under-represented in judicial roles.

This is particularly the case in the courts where 32% of all judges, and 26% of those in more senior roles (High Court and above) were women – compared with 47% of all judges in tribunals.

The proportion of judges who identify as BAME has also increased in recent years, but remains lower for court appointments compared to tribunals, particularly at senior levels (4% for High Court and above, compared with 8% of all court and 12% of all tribunal judges).

For judicial selection exercises during 2019-20, the statistics showed that overall there was no statistically significant difference in success rates for women or BAME candidates relative to the pool of eligible candidates, though this varied between exercises.

BAME individuals are overrepresented in applications for judicial appointment, but less likely to be successful. Across all legal recruitment exercises, candidates identifying as BAME accounted for 25% of applicants, 14% of those shortlisted and 12% of those recommended for appointment.

Non-barristers represented 32% of all court judges and 63% of all tribunal judges – a decrease from previous years – but just 3% in the High Court and above.

Solicitors were half as likely to succeed as barristers – 33% against 50%.

The last 18 months has seen the first female chartered legal executive recommended for appointment, but overall legal executives formed only a very small number of judicial appointments – in any case they cannot currently apply for roles above district judge level.

Most judges are aged 50 or over – 76% of court judges and 72% of tribunal judges, with 40% aged 60 and over in both jurisdictions.

Across all legal selection exercises, those aged 50 and over accounted for 35% of applicants, 34% of those shortlisted and 29% of those recommended for appointment.

The JDF said the report showed “a complex picture”, where a range of factors and influences interacted.

  • “There is no single issue and therefore solution. This demonstrates the importance of effective diversity initiatives across all JDF partners at all career stages, and the need to work together to continue break down barriers to candidates making successful applications for judicial roles.”
  • Its action plan also includes steps to boost the number of solicitors appointed to the parts of the judiciary where they are currently underrepresented. Other measures include:
  • A two-year pilot programme of targeted outreach and support activity by the Judicial Appointments Commission for senior roles;
  • A unit within the commission providing advice and guidance to potential candidates from underrepresented backgrounds including BAME, women, disabled and solicitor candidates for specific senior court and tribunal roles;
  • A review of the eligibility criteria for appointment with the aim of reviewing and removing any unnecessary barriers that discourage or prevent applications for judicial posts;
  • A revised salaried part-time working policy offering a more flexible working offer, accounting for childcare commitments; and
  • The commission using the ‘equal merit’ provision at each stage of the selection process, full name-blind sifting and ensuring ethnic diversity on recruitment panels.

The Lord Chief Justice, Lord Burnett, said the findings emphasised the importance of “all partners in the Judicial Diversity Forum continuing and building on the action being taken to promote diversity at all levels”.

The judiciary’s contribution would include a new five-year judicial diversity and inclusion strategy with “testing and ambitious” objectives, which will be published shortly.

Dr Helen Phillips, chair of the Legal Service Board, said the pace and degree of progress needed to increase.

“The board will use its regulatory oversight role to drive the improvements needed. This will include ensuring the regulatory performance framework enables us to measure regulators’ performance on increasing the diversity of the profession.

“Everyone working in this area must assess the diversity initiatives they have put in place and build on what is working well and rethink schemes that aren’t making a difference.

“The profession needs to increase its understanding of the barriers to entry and progression, and of the differential impact of disciplinary action on different groups of people. It must also develop a programme of activity to mitigate barriers and put measures in place to evaluate effectiveness.”

Professor Chris Bones, the chair of CILEx, argued that “real change will only come from there being equality of opportunity”.

With 72% of CILEx lawyers being women and 12% from a BAME background, he said they could provide the solution to continuing under-representation.

“CILEx lawyers have already proven themselves as effective judges… yet today they remain ineligible to apply for 60% of judicial appointments.

“The government was elected on a mantra of ‘levelling up’ opportunity in the UK – this isn’t just an economic challenge, it is a social one as well. We look forward to a positive and progressive response to this report that opens up competition for judicial roles to lawyers from all backgrounds, not just from top universities.”

Amanda Pinto, chair of the Bar Council, said all the members of the JDF “have more to do independently of each other to improve the judiciary’s performance in terms of inclusivity”, while Law Society president Simon Davis said it would continue to work on “increasing the diversity and inclusivity of the profession at all levels”.

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