Emma Dixon, barrister, Blackstone Chambers

Boys’ club justice is second rate

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  • The selection panel recommended the candidate who best demonstrated the qualities required for this exceptional office.

    However, progress on judicial diversity is being made. Three women (out of 10 recommendations) were recently promoted to the Court of Appeal and women made up a third of the last recommendations to the High Court (Queen’s Bench and Family Divisions). All selections were made solely on merit. Women have been making good progress at the entry and middle levels of the judiciary for some time and it is very positive to see this filtering through to the High Court and above.

    The Crime and Courts Act 2013 has introduced a number of changes aimed at enhancing judicial diversity, such as extending salaried part-time working to the High Court and above.

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  • I think this is a really interesting issue. It is a good thing for there to be more women judges because it makes the judiciary as a whole look more representative (increasing confidence in it) and because it encourages girls to believe that they can have high-flying careers. However, do women really bring something different to their judicial decision-making? The suggestion that Baroness Hale has been a minority of one because (or in part because) she thinks like a woman is very worrying. As a society, do we expect e.g. black jewish women to make different judicial decisions from white christian men? If so, this would be OK if they were members of a mass decision-making group (e.g Parliament) but it is not OK when in the majority of courts/tribunals you get one judge making a one-time decision in your case. As a party to a case, I want to know that any judge will reach the right decision and I don't want that decision to depend on which diversity boxes they tick (or don't tick).

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  • This article highlights an important issue, but proposes an unfair and unworkable solution, while also failing to tackle the structural/systemic bias in the selection system that favours, unfairly, members of 'the club' she complains about. Is Emma Dixon really saying that Sir John Thomas should have been passed over for appointment as LCJ even though he was considered by the selection panel to be the best candidate? Perhaps she thinks it was wrong of him even to apply for the job, at least once he knew Hallett LJ would be applying?

    The real problem is that the selection systems - for new judges, QCs, members of prestigious committees, etc - still rely to a significant extent on references from serving judges. It is inevitable that members of 'the club' will have the kinds of personal connections that make it easier for them to obtain significant numbers of highly positive references, whilst unfairly disadvantaging 'outsiders' who lack those connections. Indeed, potential 'outsider' candidates for judicial appointment may be discouraged from applying in the first place by a feeling that potential referees will be surprised at their decision to seek appointment; and reference writers who are members of 'the club' will inevitably be influenced, even if only unconsciously, by their own personal prejudices about whether or not a particular candidate, for whom they have been asked to write a reference, 'looks like' someone who would make a good judge. That immediately creates a potential for assessments to be influenced by irrelevant factors such as sex, age, race, cultural background, etc.

    The LCJ selection process was even worse than the usual judicial selection processes in this respect, because candidates were asked to nominate as a referee the most senior civil servant they had dealt with, i.e. a reference from a different kind of professional but drawn predominantly from the same 'club'. It is hardly an approach that is going to favour a 'non-traditional candidate', let alone one who might have had the courage to ruffle a few feathers within the senior judiciary or MoJ from time to time.

    The only effective way to change things is for the Judicial Appointments and QC Appointments bodies to take the radical step of getting rid of references altogether, and selecting candidates based on a combination of: (a) objective evidence of experience (e.g. range and level of cases that the individual has been instructed in); and (b) assessment centre-style practical exercises to test judicial qualities at the relevant level. Taking such an approach would change the composition of the judiciary rapidly, including by encouraging more 'non-traditional' candidates to apply, and do so without the monstrous unfairness of discriminating against excellent candidates based on their sex or race, as proposed by the writer of the above article.

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  • Are we really arguing about whether one Oxbridge former barrister should have been appointed to a post rather than another Oxbridge educated former barrister on the basis of a difference in sex. It doesn't appear hugely representative to me.

    The reality is until we move to a system of judicial appointments which provides for a judicial career starting at the bottom from District Judges/employment judges and allows for career progression up to Circuit Judge then High Court the CA and SC according to ability as a judge we will always have people from the same background being appointed directly to the High Court bench.

    It is not entirely clear why being a successful advocate makes a person a better judge. Furthermore being a successful advocate quite often depends on the chambers you are in which in turn depends generally on having gone to Oxbridge.

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  • The JAC is carrying out a review of our selection processes. This includes reviewing what references are needed and when in the process.

    Solicitors have many judicial skills - case management, analysis, communication, time management, authority and decision-making.

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