In 2004, Baroness Hale was created a Lord of Appeal in Ordinary. She was the first woman to reach the UK’s highest court, and later became the first female president of the Supreme Court in 2017. Whilst Baroness Hale has retired, Lady Ardern will remain (after the retirement of Jill Black), continuing her tradition women in the UK’s highest court. With women making up over 50% of the population, it is an undeniable truism that women need to have a place within the mechanism which dispenses justice. In 2015, Mrs Justice Bobbie Cheema-Grubb was appointed as a High Court judge. She was the first Asian women to carve out space for women of a similar background in the judiciary. We have by no means reached a point that can be considered satisfactory and truly celebratory, but we have reached a point at which we ought to take stock of our judiciary. We must consider the development of the frameworks that are now in place to facilitate greater diversity and representation within the judiciary, as well as what makes our judiciary unique.
Per Incuriam had the privilege of speaking with Robert Rinder (perhaps better known for his TV show Judge Rinder than for his extensive and admirable criminal work) last month at The Cambridge Union. Having spent overtwo decades within the legal community, Rinder commented that he “genuinely[believes] that the situation is improving. When I started, to be a judge, it was literally a tap on the shoulder, and it was stale, pale and male.”Undoubtedly, the procedure for the selection of judges was seriously flawed.Before the Constitutional Reform Act 2005, there was no truly independent method of selecting judges to put forward as recommendations to the Secretary of State for Justice. Rather, the Lord Chancellor (with advice from the senior judiciary) would simply select the candidates he or she deemed most eligible for a position on the Bench.[1] This constitutionally dubious process may have produced a many quality judges, but it created a judiciary which could be predominantly categorized as white and male.Anecdotally, this method of appointment raised eyebrows. “When I first started…you did used to look around and think ‘Gosh, there goes another snaggletooth’”, commented Rinder, when discussing the integrity of judicial appointments prior to the reforms.
Thus, change was needed. Part 4 of the Constitutional Reform Act2005, which had a range of legislative effects (including the establishment of an independent Supreme Court, extinguishing the judicial role of the House ofLords), provided for an independent Judicial Appointments Commission[2]. The purpose of this was to“[ensure] that merit remains the sole criterion for appointment and the appointments system is modern, open and transparent”[3].Indeed, under s64 of the 2005 Act, the Judicial Appointments Commission has a statutory duty to “have regard to the need to encourage diversity in the range of persons available for selection for appointments”[4].Under the reformed method of appointment, individuals are able to put themselves forward for consideration under a policy of open competition. Although in theory this can avoid accusations of bias and nepotism, it is difficult to deny that in practice there are various barriers which prevent the success of those traditionally marginalised in legal practice. It may be a good few years before we see a dramatic difference in the selection of minorities, because of previous issues which prevented advancement into legal careers. However, once we are able to tackle structural barriers and promote applications to the judiciary, the current framework ought to adequately facilitate the creation of a judiciary which represents modern society in the United Kingdom.
The procedures that have been put in place reinforce what makes the judiciary in the United Kingdom unique; namely, that our judiciary is intended to be impartial and unbiased in their roles. Unlike the US, where the President nominates judges, the UK seeks to uphold a judiciary which cannot be attacked for its poor (or at least, biased) application of the law. Although, the media does not always see it that way (‘Enemies of the People’). Nonetheless, the effects of the 2005 Act have emphasised this element of our approach to law. In regard to this point, Rinder commented that “our judiciary isn’t politicised… I know, for sure, that every single Law Lord will have an allegiance to the eccentricity of the case, rather than any political or philosophical point of view that the government may want.” The impartiality and severance from politics that captures our judiciary is, indeed, what makes it so appealing to those outside of the United Kingdom.London is the centre of international arbitration (and a great percentage of arbitrations pursue in the LCIA involve international claimants), and many international contracts have UK jurisdiction clause. Why? “Because the judiciary are great”, says Rinder, and part of what makes it great is it's freedom from politics.
Whilst the judiciary may not have yet reached an optimum point in terms of diversity and representation, there is progress. The introduction of an independent mechanism for selecting and appointing judges reinstates the significance of providing a reliable judiciary, who seek to uphold the rule of law. Inside the legal community, there has been limited criticism over the current procedures: “it is very difficult within the legal community now to think of a judicial appointment where colleagues have gone, ‘That’s odd’”, said Rinder. Meritocracy is a term which chimes true for the judiciary, which seeks to create an impartial mechanism for the dispensation of law. Of course, within the selection process, diversity and representation is equally as important; the threat of inherent bias cannot be undermined. If we are to create a judiciary that can be celebrated for its diversity, we need diversity within the groups involved in the selection process. Equally, the method of selection is vulnerable to the effects of structural inequality, which may prevent women and people of colour accessing a legal career in the first place. Being conscious of this fact, so that our generation of lawyers can promote the necessary change, cannot be dismissed.
Beyond his comments on the judiciary, Rinder offered many pieces of advice for young advocates. Rinder offers three pieces of advice to zealous advocates.Firstly, “remembering that you are persuading a jury”. Whilst long, beautifully crafted sentences may demonstrate your expansive vocabulary, the jury simply want to know the merits of the case. Secondly, “sometimes people suggest that criminal barristers are actors, but juries can sniff out inauthenticity”.Thirdly, “mastering the brief, knowing it better than anyone else in the room”will put you in good stead for successfully arguing your position. Rinder also recommended, for the bar, against mooting in favor of debating, especially in the criminal bar — it helps one think and construct compelling arguments and questions on the fly in away that carefully prepared moots simply cannot. Rinder also recommended that young advocates and lawyers get involved with the Free Representation Unit andShelter — both of those are charities that require volunteers and lawyers, and really improve one’s skills.
Many thanks to The Cambridge Union for allowing Per Incuriam to interview Robert Rinder in October 2020.
