Diversity in the UK Supreme Court: a radical rethink is required
By REMI TROVO
All twelve Justices who sit on the UK Supreme Court are white and only two of them are women. Lord Reed, who succeeded Lady Hale as president of this prestigious body, appears to have made it his goal to change this. In an interview with the BBC, he expressed his hope that a judge from a Black, Asian and Minority Ethnic (BAME) background would be appointed to the Supreme Court before his retirement in six years. Can this goal be achieved? If so, how can it be done?
Justices on the Supreme Court are appointed by the Queen based on recommendations from the Prime Minister and a special panel on which the current President of the Supreme Court sits. This suggests that in order to have a chance of being appointed to illustrious organisations like the Supreme Court, people must have a strong presence within the highest circles of both the government and the judiciary. However, the number of people from BAME backgrounds who are present in such circles remains low, meaning that the pool of talent from which to draw people from BAME backgrounds into the highest levels of the judiciary is still very small. At present, the experienced appeals judge and current president of the Investigatory Powers Tribunal Lord Justice Singh seems to be the most likely candidate from an ethnic minority background to be appointed to the Supreme Court. It is possible that people like him will be important role models for future generations of high-ranking BAME judges to follow.
But how can more people from a BAME background gain access to the highest circles? One aspect of the answer could lie in bringing in more BAME judges to the middle levels of the judiciary. In an article for The Guardian, Owen Bowcott argued that “the upper echelons of the judicial hierarchy are overwhelmingly white”. Statistics would appear to support this argument. Only 4% of senior judges who are appointed to the High Court or similarly ranked levels of the judiciary come from a BAME background. Women face a similar situation as they make up only 26% of judges who sit at the High Court or on more senior levels of the judiciary. With this in mind, increasing the number of women and people from BAME backgrounds in the middle levels of the judiciary would seem like a step in the right direction. The organisation JUSTICE has proposed to do just that through the implementation of ‘appointable pools’ wherein people are promoted based on their abilities and the impact they would have on the diversity of judicial institutions.
Yet bringing in a wider range of people into the judiciary requires a much more fundamental change than just tinkering around with numbers and diversity quotas. This change involves our perception of who belongs in the legal profession. Alexandra Wilson is a young Black barrister who was mistaken for a defendant three times in a single day. This was not an isolated incident. Lord Reed was also asked about the case of a judge of South Asian heritage who was repeatedly mistaken for a court clerk. This raises the worrying prospect that people from BAME backgrounds are still not associated with the legal profession. Instead, they appear to be associated with more junior roles and sometimes even with criminality. Lord Reed has suggested that this is “down to ignorance and unconscious bias which has to be addressed by the courts service”. Such ignorance will also need to be addressed across the whole of society. It is only by doing this that we can encourage a wider range of people to pursue a legal career and, with time, address the imbalances that exist across all levels of the judiciary.
Increasing the diversity of the UK Supreme Court could also potentially involve changing the nature of the institution itself. One way in which this could be done is by increasing the turnaround of the judges who sit on it. While Supreme Court Justices do not have lifelong terms like in the USA, they usually retire when they are around 70. If a Justice was appointed before 1995, they serve until they are 75. This means that judges can end up serving very long terms. Fixed terms could increase the turnaround rate of Supreme Court Justices. This, in combination with a larger and more diverse talent pool, could increase the diversity of the UK Supreme Court. However, it must be noted that although the Supreme Court was only established in 2009, it is tasked with defending the law of the land and is therefore conservative by its very nature. Resultantly, any sort of change is likely to take a lot of time.
Fulfilling Lord Reed’s goal of increasing the diversity of the UK Supreme Court is a challenge which needs to be tackled from the bottom up. In order to increase the diversity of the highest echelons of the judiciary, the diversity of its lowest levels must also be increased. In order to diversify the lowest levels of the judiciary, a radical rethink of who can work in the judiciary is required. An approach like this could also help to address other imbalances within the Supreme Court; whether they be along the lines of gender, sexuality or socio-economic background. This could create a meritocratic Supreme Court which is truly representative of our modern society.