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More diverse judiciary
Why, If At All, Do We Need A More Diverse Judiciary?
The Judiciary (also known as judicature) is made up of the various courts in a country that interprets and applies the law created by the sovereign body, which in the United Kingdom is Parliament. The apex of this court system in the UK as of October 1st 2009 is the Supreme Court which previously was the House of Lords and headed by the Lord Justice.
The courts do not make laws; they only interpret them after they have been created. This process is clearly defined by the Separation of powers, which states that each organ of Government shall have a clearly defined function, in order to prevent confusion or abuse of power by any of the organs. The judiciary is very important in governance. Not only do they interpret and enforce the law in the country, they also provide various institutions and mechanisms for resolving disputes. Further diversity is needed in the judiciary to address the growing diversity in society itself, for example, most countries now comprise people of various races, languages, cultures and religions. Gender diversity is also becoming more important as women seek equal rights with men. All the foregoing has resulted from improvements in transportation and education creating a universally mobile workforce. There are now large numbers of ethnic and racial minorities in most countries, the UK inclusive.
Diversity is a reality created by individuals and groups from a broad spectrum of demographic and philosophical differences. It is extremely important to support and protect diversity because by valuing individuals and groups in a manner free from prejudice, and by fostering a climate where equity and mutual respect are intrinsic, we create a fair society, which is needed for a country to run smoothly.
From the founding of the judiciary in the United Kingdom, the composition of the judges at the top of the judicial system have comprised mainly upper class older white males, with hardly any female judges or judges from ethnic minorities. The major breakthrough for female judges in the profession was by Baroness Hale in 2004 when she became the United Kingdom's first woman Lord of Appeal in Ordinary and in 2009 she became the first female justice of the Supreme Court. Statistics of the number of female and non-white judges show a misrepresentation of these minorities. Figures taken from the 2007 statistics show that there are no female heads of divisions and only one in the Supreme court, ethnic minorities make up 0.9 of the High court's and above, females make up 8.3% of the Courts of Appeal, 9.3 % of the high courts, while ethnic minorities make up 0.9%, 1.4% of the circuit courts and 4.4% of the recorders. However, the lower courts have better representation, both in ethnic minorities and women. In the Deputy District courts, women make up to 28.1% of the figures, and ethnic minorities make up to 3.5%, whilst in the District courts 23.7% of the judges are women with only 5.15 of the judges been from ethnic minorities.
This does not efficiently reflect the country's diverse population, as national statistics show; Britain is becoming more and more diverse as there are now people from different backgrounds and races entering the country. If that is the case then a large section of the population are ethnic minorities. Also, more than half of the population is female, why do women for example make up less than 20% of judges in courts? This shows how poorly represented these groups are in the Judiciary, this may mean their rights are not being properly safeguarded, and may eventually lead to the infringement and violation of such rights. If the judiciary is using a loose construction towards interpretation, then a very narrow homogeneous group of upper middle class older white men are not necessarily going to reflect the views and values of society as a whole, particularly on issues involving diverse cultural and generational matters because they would require more perspectives, as the judges would interpret and enforce law based on their own background.
Many Scholars in the legal profession have complained about the lack of diversity in the United Kingdom judicial system, including Lord Robert Taylor the 1992 Lord Chancellor when he said “The present imbalance between male and female., white and black in the judiciary is obvious..............I have no doubt that the balance will be redressed in the next few years” meaning that it is indeed a big problem. Many of these scholars trace this problem back to the appointment process for higher judges. If the process were more diverse, there would be more chances of minorities been in the higher courts. But the process has been criticized and said to be biased as the Lord Chancellor has too much influence on the process. A lot of emphasis is placed on the “old boy” network were majority of the new appointments come from sets of barristers whose ex-members were judges. There have been no female Lord Chancellors and none from ethnic minorities. There are only a smaller number of female judges in total and the number of judges from ethnic minorities is only 1% of the total number of judges. Majority of the judges that have been appointed went to private schools and graduated from Oxbridge. They represent a minimal portion of the population as less than half of the population has had this experience. Their life experience and ideologies differ considerably from the rest of the population. How then are they meant to effectively interpret and enact the law to citizen fairly and efficiently if they do not share the same back ground as more than half of the population?. It could also be difficult for the judges as they may not be able to relate to some of the situations put before them. Robert Stevens examined the judiciary and recommended the introduction of positive action and the commission for appointing judges in order to open up the opportunities for women and those from ethnic minorities.
A more diverse judiciary is desirable because without one, the chances are greatly increased for a violation of the rights on these under represented and could indirectly imply discrimination especially on both gender and race. How else can one explain the lack of women and ethnic minorities in the courts? It is not that they are not qualified enough. Most universities have stated in the news and on newspapers that there are a higher number of female students in their universities than men. Why do women not occupy these high paying jobs and positions in the same proportions as men if they all have equal qualifications?
The United Kingdom parliament enacted the Race Relations Act 1976, which was to prevent discrimination based on race. If there is a misrepresentation of ethnic minorities in the judiciary, how would this Act be properly and fairly upheld? The case of Hasanali Khoja Vs the Metropolitan Police shows some evidence of this fact. Mr. Khoja a British citizen of both Indian and Muslim decent was employed by the Metropolitan police and head of the catering department. He claimed his rights were infringed upon when he informed his employers that he would be unable to cook food that contain pork as it is against his religion, but his employers insisted that he make pork sausages and bacon. He took the Metropolitan police to court and sued on the grounds of both Religious and Racial Discrimination and he lost the case. The judge's decision was not in favour of the claimant. This shows how poorly represented some minorities are in the judiciary. His lawyer later claimed that the judge's decision did not uphold the claimants freedom of expression, freedom of thought, conscience and religion, because he had the right not to cook pork and his employers by law are meant to accommodate his choice but they did not and were not punished for infringing on this right. If the judges that ruled over that case shared the same background as the defendant, be it Muslim or Indian the judgment may have been different because they may have had better understood the claimant's position.
This lack of diversity in the judiciary can also lead to discrimination based on race especially when it comes to immigration issues. This is evident in the case of East African Asians vs. United Kingdom 1983, where the husbands of UK citizens were not allowed entrance to the UK despite the Commonwealth Immigration Act of 1962 which stated that citizens of the Commonwealth countries have guaranteed access to the United Kingdom. Despite this legislation these men were still denied access into the country. This case went against the Act and clearly violated the rights of claimants, as by deliberately singling out a group of people and subjecting them to differential treatment on the basis of race is racial discrimination and torture which goes against Article 3 of the Human Rights Act. It also violated article 8 and 14 because by refusing Commonwealth husbands of British citizen into the country, where the wives of these men have already gained entrance into the country constituted an intrusion with family life and discrimination contrary to both articles, it also went against article 5 which is right to liberty and security of person the right is guaranteed and should be protected especially when there is an interference of that right by a public authority.
Also insufficient representation may sometimes compromise the Sex Discrimination Act 1975 which is meant to protect both men and women against discrimination based on gender or marriage. The small number of women in the higher courts implies that they are not been appointed into those positions merely because of their gender. If it were a female judge that presided over the case of Andrea Madarassy vs. Nomura International then the chances of her winning the case might have been higher. The claimant took the case to an employment tribunal complaining of unfair dismissal, sex discrimination, victimisation and contravention of the Equal Pay Act. After a long 5 week court hearing the tribunal ruled in favour of Nomura international instead of Andrea, they ruled that the company had not discriminated against the claimant, but according to Aurura press archive Mrs. Madrassy is not the only woman to have complained of unfair treatment by Nomura. Also, according to the Telegraph, Maureen Murphy and Anna Francis, in November 2009 sued the company on sexually related allegations as well. However, on both of these occasions the women have lost the cases and both occasions the panels of judges have been men. Hence it's not a surprise that they lost the cases. If, however, the cases were heard by a female judge, she would be in a better position to understand were the claimants was coming from and would be in the position to make a fairer judgment as she may have shared the same views and experiences as the claimant as they of the same sex. Although the judgment may be biased it may also be fair. This, however, just goes to show that when an individual or a group of people are been judged, in court be it for tort, contract, criminal offence etc, the judgment is indirectly affected by their racial background, gender, socio-economic status or one legally irrelevant characteristic which should not be considered when passing a fair judgment.
Diane Abott a British MP emphasized, in her article, ‘Multi Racial Britain', that “Ever since the Norman French invaded Anglo-Saxon Britain has been a culturally diverse nation”. Which should mean that the values and attitudes which colour our views of the world, should be effectively engrossed and interpreted in the law and the only way for that to happen is to a have a more diverse judiciary, in terms of factors such age but most importantly gender and ethnicity, which would effectively reflect the ideas of the society as a whole. But this is not the case in British judiciary system presently.
Judges have judicial independence, which itself is as a result of the doctrines of the separation of powers in the eighteenth century which stated that the three primary functions of the state legislature, judiciary and executive must be kept separate in order to safeguard the rights of citizens and to ensure the rule of law. Judges, being human, would only promote and safeguard the rights of citizens who share similar views as them. Judges are said to be pre-established and conservative, they already have set rules, ideologies and beliefs which is precarious as most of them do not tally with beliefs of majority of the population. Hence, they can get away with making partial decisions as judges have immunity from being sued for judgment delivered in the course with their judicial duties. If their judgment is unfair or biased in any way, they cannot be made to account for such a decision. This consequence arising from very narrow views, beliefs and ideologies can be seen as undemocratic, as democracy is governance by the majority and not the minority. This further underscores why a more diverse judiciary is desired.
According to Honorable James Andrew Wynn, Jr, in his article Judicial diversity: when Independence meets Accountability, the more diverse a judiciary is the greater the judicial accountability and judicial independence. Judicial independence pre-supposes that judges are non-biased and make impartial decisions, while greater accountability is expected from popular and greater representation. Hence, if there is no diversity within a judiciary the chances of gaining either judicial independence or judicial accountability are farfetched, almost impossible. In REPUBLICAN PARTY OF MINNESOTA et al. v. WHITE, CHAIRPERSON, MINNESOTA BOARD OF JUDICIAL STANDARDS, et al, Judge Scalia clearly stated that “lack of judicial predisposition is neither desirable nor possible”. That statement conforms to the expectation that a judge's judgment is based on his background, i.e. his racial, gender and ethnic experience. A judge's ability to hear a case, interpret it and pass judgment is based on his coherent diverse experience and views. This then means that any judgments without considerable ideological and narrative judicial diversity or experiences without the relative advantage of an accountable or fairly independent judiciary would be biased and partial.
Democratic institutions must have the consent and respect of the citizens. This applies to the judiciary as well, and would be lost if judicial decisions are not regarded as “in touch” with mainstream views and development. As Justice Atken said “The public will have faith that the court will be impartial and be able to recognise and eliminate conscious bias”. A more diverse judiciary would increase public confidence and gain greater support from its citizen. If the citizens know they are being properly represented in the courts and that there are people there who share the same background as them they would be more comfortable and willing to comply with the rules and regulations of the country. It would also be beneficial to the judges because if they have a diverse pool of people from different backgrounds, gender and cultures in the judiciary then there would be more skills and experiences to gain from when passing judgment as it would equip the judges with the experience, views and values they would need to make good and fair judgments.
Increasing the number of women and ethnic minorities in the judicial system, would also encourage people from different groups to aspire to become judges. Knowing that they have a chance to break that glass ceiling, would encourage more students to read law related courses knowing that they have a chance to become a top judge in the country. This would benefit and ease the appointment process as they would have a much wider and more diverse pool of applicants to pick from and this would thereby encourage more and more diversity and it may even have an effect on the diversity in the other main organs of government the legislature and the executive.
Judicial restraint is defined as the theory or guideline of judicial interpretation that encourages judges to limit the exercise of personal opinion when passing a judgment by basing their decisions on the grounds that have been previously defined by judicial precedents. This theory is practised in the United Kingdom judiciary, and there is less scope for this matter in interpretation and judges are trained and aware that they must interpret the law using the legal principles, and not unduly follow their own prejudices. This can be shown in the case of Texas v. Johnson, 491 U.S. 397 (1989), where Judge Scalia stated "I would have been delighted to throw Mr. Johnson in jail. Unfortunately, as I understand the First Amendment, I couldn't do it”. This just goes to show that judicial restraint limits a judge's ability to pass judgment based on personal opinion. Hence, even if the composition of the judiciary is not as diverse as the population there are laws within the constitution that protect the rights of the citizens as a whole. Lack of judicial diversity would be less harmful if this doctrine is carried out well. However, this doctrine contradicts with judicial independence because even if judges do not practise judicial restraint when presiding over a case and make a judgment that is biased, they cannot be sued. They can only be made to account if the judgment completely goes against the rights of the citizen.
From the foregoing, it is clear that the judiciary is a key organ in the running of a Country as without it to enforce the law and regulations and act as a guide to prevent disorder and chaos in the Country, there would be anarchy and confusion. In order for this to happen effectively and efficiently there has to be a fair composition of judges from various backgrounds, ethnicities and gender to carry out this function. Diversity is necessary to enforce key acts and prevent discrimination and infringements of the rights of the citizens in a country, it is also necessary to reflect the rainbow of cultures, ages, genders, religions etc that make up the United Kingdom as a whole. It is a key factor required for the smooth running in a democratic state. Diversity will assist the judiciary of the country to be both accountable and independent from any criticism from other organs of Government and the citizens, which would give the judiciary the full support of the citizens in the Country, many of whom will be motivated to study Law and become judges themselves. It is also needed if the judges in the country do not carry out the doctrine of judicial restraint as well as they are supposed to, because without judicial restraint the judgments passed by the judges, would be biased and partial as that they would only reflect the beliefs and values of judges, based on that judicial diversity is needed for the judges in Britain to make better and more critical judgments.
- NC STATE UNIVERSITY. (1997). DIVERSITY INITIATIVE. Available: http://www.ncsu.edu/univ_relations/diversity/define.htm. Last accessed 20/02/2010.
Jacqueline martin and Chris Turner (2009).CONSTITUTIONAL AND ADMINISTRATIVE LAW . 5th ed. Great Britain: cox and Wyman Ltd. 28.
Jacqueline martin (2005). The English Legal System key facts. 2nd ed. Great Britain: cox and Wyman Ltd. 98.
Jacqueline martin (2005). The English Legal System key facts.
Jacqueline martin and Chris Turner(2009).Constitutional and Administrative law key facts.
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