There is considerable interest in judicial diversity in contemporary debate about the legal profession but those who argue in favour of diversity often ignore the fact that it will inevitably lead to changes in the way our judges approach the task of judging. Discuss. Judicial diversity, when defined as "the presence among a group of individuals of a wide variety of backgrounds, cultures, opinions, styles, perspectives, values and beliefs"1, does not change judgements in the court system.
A woman is as capable as a man as applying legal principles and interpreting statutes; a member of an ethnic minority as capable as a native British person, a homosexual as capable as a heterosexual. To argue otherwise would be to promote sexist, homophobic or racist beliefs, none of which are compatible with our liberal, democratic values2. However, the thorny debate about judicial diversity is not primarily concerned with eliminating discrimination, but with appointing a judge on the basis him/her being a woman, homosexual or member of an ethnic minority etc.
To do so will necessarily lead to changes in judgement making that are incompatible with the British ideal of justice. Advocates of judicial diversity often claim that it is necessary to increase representation of different societal groupings within the judicial sphere in order to increase public confidence. The Legal Services Board states that a diverse workforce is important for "protecting and promoting the interests of consumers"3. Nevertheless, the task of the judiciary is to be impartial and unbiased.
The idea of having a judiciary that at once represents the interests of different social groups and yet provides equality before the law4 seems paradoxical. Conversely then, public confidence would wane in a judiciary which aimed to represent different social groups, for fear of partiality to one group and discrimination against another. This in turn undermines the "innocent until proven guilty" principle that underpins English common law. Moreover, the independence of a judiciary "secure from undue influence and autonom[y] in its own field"5 would be called into question.
Under pressure to support 'their own people', representative judges would cease to be independent and instead become privy to politics and opinions. In spite of this, Professor John Griffith argued6 that there is no such thing as an impartial judge; that the concept is an ideal that cannot be realized and that our judicial system is currently partial and biased. Whilst it is true that a judge is made up of their own morals, beliefs, political views etc, a judge need not necessarily be constantly guided by these. Robert Kane argues that the existence of "alternate possibilities" shows that we are autonomous beings7.
Hence we are always able to choose to act contrary to our inclinations, rather than letting our personal make-up guide our decisions for us. Applying this to the judiciary then, it would appear that although judges are formed of their own opinions and beliefs, it is possible to act contrary to them in order to make a judgement according to legal principles rather than personal motivation. Our judges are capable of making impartial and independent decisions. Griffith goes on to argue that "the judges have by their education and training and pursuit of their profession as barristers, acquired a strikingly homogenous collection of attitudes".
Even if this were to be the case, Griffith's demand to diversify the judiciary is still unfounded, for even diverse recruits would be 'indoctrinated'. Far more appropriate would be to investigate and diversify legal training. Another argument of those who seek judicial diversification comes from the first female Justice of the Supreme Court of Canada, Bertha Wilson. She argued that "women view the world and what goes on in it from a different perspective from men"8. Erika Rackley supports this view and claims that a "truly diverse judiciary utilises the presence of difference"9 to make judgements.
However, utilising this 'difference' is to ignore the objective foundations that the English law is based on. Objective law is based on the "rational application of relevant facts"10, rather than the subjective whims and caprices of the judges. A society where the latter exists means that the outcome of a case depends entirely on the judges assigned to it. There would be no legal certainty and no clear indication of the law if the judges were able to decide cases in such a subjective manner. It is the degree of objectivity in English law that makes it clear for citizens to follow and enables them the right to a fair trial.
Nevertheless, it is clear that there is something 'wrong' with the judicial system. In a group where 75% of judges are independently schooled, in comparison to merely 8% of the population, there seems to be some discrimination or prejudice at work. It is the make up of the judiciary that is suspicious, rather than its processes. In the 1970s, the then Lord Chancellor, Lord Hailsham, "formally implemented procedure to exclude homosexuals" from the judiciary by only allowing married people to serve11.
Such procedure is wrong, not because homosexuals would make the judiciary more representative or because of their 'difference', but because it deliberately excludes groups of society for discriminatory reasons. Excluding people from the judiciary because of their sex, religion, sexual orientation or ethnicity is wrong because it undermines their dignity and human rights. To conclude, diversifying the judiciary in virtue of minority groups being more representative or offering different 'perspectives' creates a new approach to judgement making that is not compatible with British justice.
It makes the judge partial to their group, rather than independent and unbiased. Furthermore, it means that the legal process becomes unclear and liability hangs on which judge is assigned to a particular case. However, diversity is favourable as a product of the removal of prejudices and discriminations that prevent minority groups forming part of the judiciary. The widening of legal opportunities to minority groups will not necessarily mean a different approach to judgement making.