There are many senior judicial appointments to be made in the next five years – including nine members of the Supreme Court – and a “substantial number” of these are likely to be women, Sir Brian Leveson has predicted.
The president of the Queen’s Bench Division also described as a “fallacy” the notion that the judiciary can only reflect the make-up of the legal profession from which it is drawn.
Entering the heated debate over judicial diversity sparked by Lord Sumption’s comments last month that it may take 50 years to reach gender equality on the bench, Sir Brian admitted that “we still have far, too far, to go. But things are improving”.
In a speech last Friday in the Isle of Man, said that in the next five years, even assuming that every judge continues until compulsory retirement, all nine of the English members of the Supreme Court will fall to be replaced, as will four heads of division and at least 12 members of the Court of Appeal, plus “many” in the High Court.
“For my part, I anticipate that a substantial number of these appointments will be of women and that progress will also be made in the area where we do not do anything like as well, namely in relation to black and ethnic minority practitioners,” he said.
Examining why improvement at the higher levels of the judiciary have not matched those at the lower ranks, he put forward several factors, including the relative youth of the Judicial Appointments Commission and its efforts to effect change, and the difficulties of attracting “practitioners from the highest reaches of the solicitors’ profession to take up the initial part-time positions, thereby gaining experience which provides helpful evidence to demonstrate the skills required for full-time appointment”.
He noted that “the judiciary, the Law Society and the law firms are working to overcome this problem, by helping to remove the barriers that solicitors face in making applications and taking up appointments”.
Sir Brian continued: “[Another] reason often proffered is that the pool of talent from which appointments are made is reflective of entry into the legal profession 30 to 40 years ago and of those individuals from that cohort who are now at the top of the profession.
“I find this… less than convincing. It rests on the fallacy that, as the judiciary is drawn from the legal profession, it cannot but reflect the profession. There is absolutely no reason why this should be the case…
“This line of argument is an excuse not a justification. It fails because there are sufficient numbers at the highest levels of the legal profession. In this number I include all lawyers, whether private practitioners, government or in-house, as well as the academics: they could be appointable and be appointed on merit and would help to secure a properly diverse judiciary in the near future.
“Such individuals are within the profession now but how many actually apply? Suffice to say that the path to appointment must be and must be seen to be attractive to them; it needs to be secured.”
But equally Sir Brian made clear that he opposed quotas, “which I believe are the antithesis of appointment on merit and demeaning whether to women or those from minority ethnic groups”.
He added: “We simply don’t need to go there… We must get on with it to realise [judicial diversity’s] benefits sooner rather than later. And we are taking those steps, whether it be through new schemes to widen entry into the High Court through the current deputy High Court Judge competition, through outreach, mentoring, judicial work-shadowing, flexible working patterns, and through early entry into the judiciary with a more clearly defined judicial career path.”