The need for diversity on the Supreme Court

Shortened version published on Halsbury's Law Exchange here

Introduction

The question of appointments to the Supreme Court continues to generate controversy across the legal blogsophere, and now the House of Lords Constitutional Committee has decided to launch an inquiry into judicial appointments generally.

In a previous post, I have argued that a final vetting stage of candidates for the Supreme Court should be carried out by a cross-party Parliamentary committee, as a way of a more open process with some democratic imprimatur and an affirmation of the status of Parliament as supreme in our constitutional arrangements. It should, however, be no more than a final vetting.

I have also argued that the court should continue as a general appeal court, rather than refashioning itself as some sort of constitutional court or local version of Strasbourg. I would add that I do not see how the court has the power to do so. There is nothing in the Court’s founding statute (the Constitutional Reform Act 2005) limiting the right of appeal and any suggestion that the court should only hear certain cases would amount to an unlawful fetter on its discretion.

Of course, the court could do so de facto simply by refusing permission to appeal for anything other than public law cases, but to exclude valid appeals simply because of their subject matter would deprive litigants of access to justice. The Court of Appeal deservedly has an outstanding international reputation, but the sheer volume of cases it hears means that inevitably there will be some cases where further review by the Supreme Court will be justified.

The issue on which I have not yet commented concerns the controversial question of diversity on the bench.

Three caveats

It is often said that the judiciary is unrepresentative of society, and its legitimacy suffers as a result, hence the composition should be changed whatever the appointments process.

I would agree with that proposition, with three caveats. The first is that, despite the large number of public law cases heard nowadays, it is not the role of the judiciary to "represent" the community, or a particular constituency thereof. The role of the court is to resolve disputes before it according to the law.

Of course the judges are involved in making law, but they do so subject to Parliament, which remains supreme in our constitutional arrangements.

They are also involved in evaluating questions of policy, but in doing so they are not in the position of a political party attempting to implement a manifesto. Rather, their role is limited to assessing the particular policy against the legal parameters of Wednesbury review and the European Convention, taking account of domestic case law and that of Strasbourg.

Secondly, however representative the bench becomes, it is inevitable that each individual judge will spend most of his or her time hearing cases the facts of which are largely outwith his or her personal experience. Even if it were otherwise, it would lead to accusations of bias if judges were always assigned to particular cases because they happened to share the background of one of the parties. There would be no point in multiple judges hearing appeals if they were always expected to defer to the one who was the expert on the particular subject matter or who was thought to have particular awareness of the litigants’ social group however defined.

Thirdly, resolving cases always involves a great deal of technical legal knowledge. This necessarily narrows the field for judicial selection to suitably qualified and experienced lawyers.

In other words, judges are not equivalent to politicians and therefore should not be appointed on the same basis.

The case for diversity

Those caveats aside, the justification for a more representative bench may be stated fairly simply. British society is far more diverse culturally than historically, and old notions about deference and class distinctions have long been discredited. If the judiciary remains as homogenous as it has been in the past - that is, dominated by elderly white middle-and-upper class, public school and Oxbridge males – it will have the appearance of a self-serving elite, however radical the actual decisions judges make. It will suffer the objection that the members are "out of touch"; and wider issues about social mobility will be (as indeed they presently are) engaged.

An homogenous bench will also suggest bias or discrimination in the selection process. Even if the judges are appointed purely on merit – defined as the best legal ability – if the pool of experienced lawyers from which they are drawn is itself unrepresentative, then the question arises of barriers to entry to (and promotion within) the profession, and prior to that university selection and the education system generally. (Needless to say those are much wider questions than simply the appointment process to the Supreme Court or the bench as a whole, and I won’t attempt any exposition here.)

Statistically it would be implausible to say the least for all the best lawyers to be from one small demographic, so it may be seen as advancing – not retarding – the search for the best judges to look to a more diverse pool.

Moreover, on appellate courts the virtue of having more than one judge may be partially vitiated if all are drawn from identical backgrounds. Alexander Horne’s important recent study expands upon this point (at Pt 5.2). In corporate newspeak this is known as the danger of "groupthink". (See Rackley, E. What a difference difference makes: gendered harms and judicial diversity, International Journal of the Legal Profession, Volume 15, Issue 1 & 2 March 2008, and generally Horne Pts 5.3 and 5.4).

This extends beyond the demographics of the bench, to include their professional experience. Lord Pannick QC said of a well-known public law case (YL v Birmingham City Council [2007] UKHL 2):

With three Chancery judges (Lord Scott, Lord Mance and Lord Neuberger) outvoting Lord Bingham and Baroness Hale, the House of Lords decided on the meaning and application of s.6(3)(b) of the Human Rights 1998 ([2009] Judical Review 109)

Mr Horne responds: “This somewhat sneering reference to the former Chancery judges reflected the view of many in the human rights community that they should have deferred to the views of their public law orientated brethren.”

(I would interpolate that Lord Pannick, with the greatest respect, hasn't done his homework on that particular case: Lord Mance was a judge of the Commercial Court, as was Lord Bingham.) True one might expect a judge whose practice concerned exclusively commercial cases might take a different view of public law cases than, say, a former tax lawyer, or human rights lawyer, or indeed family lawyer, but then again two of the leading human rights judges of recent years have been Lords Hoffmann and Bingham, formerly of the Chancery Division and Commercial Court respectively. This shows again that judges do not necessarily conform to expectations or stereotypes once appointed, and it reinforces the futility of trying to elicit judges’ political views before appointing them.

In other words, one should have a diverse bench, and expect a diversity of views accordingly, but predicting how that diversity will play out in practice is not really possible.

Conclusion

The need for a more representative judiciary is manifest. I would caution, however, that it still needs to be confined to meritorious candidates, meaning those with the appropriate skills (including black letter law, which is a technical expertise) and experience. “Political” appointees would be a disaster for the reputation of the judiciary: it would set back the cause of equality no end if someone was appointed and thought simply to be a beneficiary of tokenism. Commercial confidence in the judiciary would drop and overseas litigants and businesspeople would look elsewhere.

It follows that the lack of diversity cannot be remedied overnight. In the case of the Supreme Court, however, as I have argued elsewhere, a wider pool might be appropriate given that the judges do not need expertise in fact finding (and hence cross-examination) or procedural law, both of which are central parts of the lower courts' role. A precedent has already been set with Jonathan Sumption QC who, whilst not of any recognisable minority himself, was appointed straight from the bar (albeit not without some controversy, it has to be said). Senior lawyers from academia, business, the civil service and elsewhere might also be considered.