Good morning. I'm delighted to be here to discuss the important subject of judicial diversity. I think this is an issue which it is important we get right: important to the Government, important for the judiciary - and important for justice.
Can I begin by welcoming you all. I am particularly grateful to those of you who have come from abroad. We have, as ever, so much to learn from each other. I hope today's events will help us to do that.
What I want to do this morning in my remarks is three things:
I want to begin by saying something about our current judiciary. I believe we have an excellent judiciary. A judiciary which is the envy of the world, and a model for the world. Democracy and the rule of law are vital for this country, and the judiciary play a vital role in upholding those values and those practices. Nothing I want to do will in any way interfere with that, or diminish that. Far from it: all I want to do is to maintain and sustain the independence of the judiciary, the excellence of the judiciary, the effectiveness of the judiciary.
And can I say from the outset that merit is central to that. Merit is currently the basis on which judges are selected. Merit will continue to be the basis on which judges are selected. But merit is not immutable. To maintain merit, we have to work at it. We have to make sure that those who are appointed as judges can meet the standards that appointment on merit rightly requires. To achieve that, we need to work to maintain it. Merit without maintenance will decay. Merit needs to be nurtured. Merit needs to be sustained. Merit needs to be renewed. That has always been the case. It is no less so now. Judicial diversity is not peripheral to merit. Judicial diversity is not additional to merit. Instead, it is the opposite. Judicial diversity is central to merit, and to the maintenance of merit.
My strong view is that, over time, we will not continue to have the best judges, as we do now, unless we increase their diversity. We will not, over time, continue to have judges, as we do now, who understand the communities they serve unless we increase their diversity. We will not continue to have judges, as we do now, who carry the confidence of their communities unless we increase their diversity.
Diversity matters. Diversity is not an afterthought - something we do at the end of the process to see whether we have got things ‘roughly right'. Nor is it a politically correct gesture - something we do to tick boxes to prove how forward thinking we all are.
So, why is it important? Firstly, and above all, it increases quality. There is no area of national life where increased diversity has not also increased quality. Look at education: who can doubt that extending secondary and tertiary education for women has improved standards? The increased participation of women in further and higher education over the last century has contributed hugely to the well-being and prosperity of our nation. A country that fails to develop, recognise and promote the skills of 50 per cent of its population is a country that's getting things only half right.
The same should be said for our judiciary. A country where you are much more likely to become a judge if you are a man rather than a woman is losing out on a whole range of people who without doubt have the merit to be judges.
The position is exactly the same for judges from Black and Minority Ethnic groups. We must continue to attract people of diamond quality to become judges. But we will not do that if we discriminate, exclude or discourage - in any way - people from considering judicial appointment. If an excellent black solicitor thinks being a judge is for ‘other people' - then our judiciary is all the weaker for it.
Diversity also increases justice. Justice cannot be done unless it carries broad support: the aggregated assent of the people in wanting justice to be done. That assent rests on a number of issues - probably most centrally, that the justice being done is the justice people want done. But that confidence in justice rests too on confidence in those dispensing justice.
People do have confidence in their judiciary. Rightly so. But from the final court of appeal to the magistrates court, the make-up of the bench influences in so many ways the decisions the courts make, and from that the confidence their decisions command. Decisions are shaped, in part, by the background and the experience of the judges.
We need diversity in order to ensure our judicial decision-making reflects the community as a whole. For example: 51 per cent of the population is female - yet women hold fewer than 20 per cent of judicial posts. A figure which goes even further down, the higher you travel up the judicial ladder. This is the same with BME groups. Eight per cent of the population is from non-white minority ethnic groups. Fewer than five per cent of judges are.
It is vital that people's respect for judges is maintained. Because - necessarily and rightly - judges here are not elected, the process of appointment is the only means of ensuring connection with the public. This means the public must feel the judges understand the issues and motivations of the people affected by their decisions. The law-abiding public expects the system to be fair to defendants, and also to understand the experience of victims, and the difficulties of witnesses.
And the public must be confident our judges undergo a rigorous system of appointment based on their skills, not because they have a particular background or know the right people.
I know and believe these arguments for judicial diversity are clear, and they are compelling. It is still important to set them out at every opportunity.
The key question now is: how do we get there?
Firstly, achieving a more diverse bench requires the will to do it. It means recognising the need for a profound change in the way we appoint judges. The Constitutional Reform Act fundamentally re-gears the way we make judicial appointments in this country. The new Judicial Appointments Commission will be in place next year. I believe it provides the opportunity for more far-reaching change than we have seen before. It will have a statutory duty to encourage diversity in the pool of candidates - not disturbing the fundmental principle of appointment on merit. The first Chair - Baroness Ushar Prashar - has a track record of leading and delivering real change. The new Commission will build greater confidence in the system. Confidence that the system will seek as wide a pool of candidates as possible. Confidence that the system now is based on ‘what you know' not ‘who you know'. Confidence that diversity is at the heart of the appointment process.
There are five key points to this:
The first step to deliver change is a bold recognition of the need for change. I recognise that need. No clearer recognition than the setting up of the Commission.
The second step is to ensure the appointments system is fair and transparent. We need a system that considers each candidate fairly on his or her merits. And a system that can show that it does this too. Assessment centres - which are now up and running - are playing their part. But we must not be obsessed with process. It is not an end in itself. We must be watchful of the process becoming so mechanistic that it gets in the way of proper evaluation. The purpose of the process is to appoint the best from the widest possible pool. I have no doubt that the new Commission will have the right combination of vision and pragmatism, ensuring that merit prevails.
The third requirement is an understanding of the barriers to applicants to applying. This is why my Department, jointly with the Law Society and the Bar Council, has commissioned an important new research programme to examine these barriers to application - both real barriers and perceived barriers.
The fourth requirement is to widen the pool. Part of this is about awareness-raising - if people don't know they can apply, we can hardly be disappointed when they don't. This is why we have taken practical steps to increase applications:
In the past, the argument has been that all we can hope to do is ensure that our judiciary is reflective of the pool of eligible candidates. That a ‘trickle up' approach will do the trick. All we had to do is wait for the diversity of the judiciary to ‘catch up' with the increasing diversity of the professions. I don't think that is right. The eligible pool doesn't reflect society. So we need to widen the pool by bringing in new groups who have the skills we need.
That is why I announced in July that some appointments would be opened up to suitably-experienced legal executives and intellectual property practitioners. And I announced that we will lower the period of time someone has to be qualified before they can apply.
But we need to go further. That's what we are doing in the package of measures I am announcing today. That will include:
These are examples of the measures we are introducing. I want to focus on three particular steps.
Firstly, solicitors. Solicitors are an untapped market. There is a substantial disparity between the number of solicitors who are eligible and those that actually apply. Solicitors that do apply tend to apply for more junior posts. There is an assumption - among some solicitors - that being a judge is not just for ‘other people' but more specifically is for ‘other barristers'. This is simply wrong. Experience as an advocate is not a necessary requirement for judicial office. Solicitors are a huge untapped pool of talent for the judiciary.
So I am announcing today a programme of work in partnership with the Law Society to promote judicial appointment for solicitors:
I am delighted to announce today that the Law Society will in the future credit solicitors who undertake work shadowing with a judge with Continuing Professional Development hours. There's now a real incentive to firms to let their fee earners explore judicial office.
Secondly, return to practice. The final one of my key points was making the job of a judge more attractive. So I want to make progress on the issue of whether someone who has held a post as a salaried judge should be allowed to return to practice as a lawyer.
Let me be clear at the outset. In case there is any doubt, I am not thinking of myself. I have already said I won't return to practice if there is ever a day when I am no longer Lord Chancellor.
I recognise there are differing views on the overall issue of return to practice. We've always regarded being a judge as unique. Which it is. And so we've assumed in the past that once someone has given up the legal practice to assume a judicial career, there is no route back to the Bar or to a solicitor's practice. We've worried that judges will have half an eye on their future career. Or that there might be a perception of unfairness if former judges represented litigants in court.
But is that right? The very qualities that enable us to say “this person will make a good judge” - integrity, independence of thought, the ability to recognise a conflict of interest - provide the safeguard against a judge using his or her position to secure future professional advantage or being vulnerable to undue influence from a colleague on the bench. Reasearch suggests that the prohibition on return to practice acts as a real block to people considering judicial appointment at an earlier stage of their career. I want us to access the talents of those younger lawyers with excellent judicial skills.
Neither am I convinced that the ability to return to practice risks undermining the independence of the judiciary or the perception among the public of independence. Many practising lawyers sit now in a very wide range of fee-paid part-time judicial posts. It is not argued that this undermines the independence of the judiciary. Nor is it argued that such practitioners receive preferential treatment. Again, the qualities we search for in appointing judges are those which guard against such risks. And return to practice is a reality in a number of other jurisdictions with highly-respected judicial systems.
I know there is not a consensus - which is why I consulted on this issue last year. But, of those who responded, a clear majority said that the current prohibition inhibits diversity.
I personally am in favour of change. But I recognise that this is a serious change. For all these reasons I am today announcing that I am asking the Judges' Council to consider further the question of whether salaried judges below the High Court level will be able in future to return to legal practice after they have ceased to hold judicial office. And, to look at the nature of the safeguards that would need to be put in place. I will consider their views before reaching any decision.
And thirdly, I want to do more in terms of disability. We simply don't know enough about the incidence of disability in the legal professions or among serving judges. We want to make sure that nothing in the application process acts as a barrier to disabled candidates, and that disabled judges are supported appropriately.
Already we have set up a joint working group involving expert organisations in the disability field. And I'm pleased to be able to announce today that we have agreed a comprehensive action plan with these groups to ensure that disability issues are fully addressed. For example, we will develop and promote a policy that sets out very clearly my Department's positive approach to disability and how issues of reasonable adjustment will be managed, both for applicants and for judges in post.
In conclusion - I believe that the case for greater judicial diversity is clear. A more diverse judiciary is a better judiciary. And a better judiciary means better justice.
I believe too that we have made progress. There are roughly twice as many women and minority ethnic judges as there were ten years ago. There is no longer a single tier of our court system which does not have women in its judiciary. And we are seeing more applications from under-represented groups, with more being appointed - and all of them appointed on merit.
Look at this financial year. So far 47 per cent of candidates appointed are women, compared with 31 per cent for the whole of last year. And 16.7 per cent of candidates appointed this year are from minority ethnic backgrounds, compared with 9.3 per cent for the whole of last year. Not enough. But an improvement. We need to do more.
Relatively minor changes to existing processes is not enough. We will press on with making change. The announcements today are a further milestone.
But we need to go further, and we need to go faster. I need to boldly go where no Lord Chancellor has gone before. We won't have quotas. But in five years' time, I do want to see every under-represented group applying in proportion to its presence in the pool. At every level. In our tribunals and in our courts. Progressing from post to post, according to ability. Regardless of gender, race, disability, sexual orientation, religion or age.
And because every group contains people of talent and ability, appointable on merit alone, that will change our judiciary. So that our judiciary will more clearly reflect our diverse society. And so that as a result, our judiciary will continue to command and to deserve the place and the standing that they do have now, and that they must have in the future.
An excellent judiciary. A diverse judiciary. Delivering the fair justice we all want to see. Justice for all. That is my objective, and the objective of everyone here. That is an objective worth striving for. That is an objective I am determined to secure.