Procedure for Appointing Judges

Yasmin Qureshi Excerpts

Tuesday 8th October 2019 Westminster Hall

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Sharma. I congratulate the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this debate.

It is fair to say that in the wake of the Supreme Court’s recent ruling, some Government Members and even Ministers began to call for the reformation of the judicial appointments system. That tells us that some of those people—often those with very hard Brexiteer points of view—are not interested in parliamentary sovereignty or judicial independence, and they do not respect our traditions or our democracy. As the Chair of the Select Committee on Justice, the hon. Member for Bromley and Chislehurst (Robert Neill) said earlier, the attack on the judiciary by the media was disgraceful, but, sadly, so were some of the words used and the comments made by Members of this House.

It should be said repeatedly and clearly that the selection hearings of the US system have no place in our democracy, and nor do the highly political workings of the US justices. In the immediate aftermath of the Supreme Court’s ruling, the Attorney General seemed to suggest that Parliament would need to look at a judicial appointments system, although I am pleased to hear that he has rowed back on those comments since making them. Those calling for an American-style process rather than a Supreme Court-style one have little interest in the constitutional frameworks that have been essential to government in this country for centuries.

Although these arguments will not be new to anyone, they perhaps deserve reiteration. The US system is beset with practical problems. It allows the President to nominate judges on an explicitly political basis, and even if we accept that idea—which we do not—the power to nominate is not equally distributed. Instead, the make-up of the US Supreme Court is determined by whoever is President when judges become unable to continue in their role. The make-up of the most powerful court in the land is political and dangerously random, and the result is neither stable nor fair. That holds especially true when an Executive like the USA’s current one chooses not to respect conventions or tradition. As the Chair of the Justice Committee also said eloquently, we have only recently seen the unedifying spectacle of a USA-style confirmation hearing.

There is a great deal to be proud of in our judiciary. Our commercial courts are widely recognised as some of the best in the world; every year, a huge number of international litigators choose to come to the UK because they know they can rely on fair treatment. Last year, our legal sector alone contributed around £26 billion of trade to the UK. Even in our tragically undervalued criminal courts, on the back of yet another week of courts being unnecessarily shut, the judiciary is soldiering on impressively.

I admire the durability and professionalism of our judges, along with the rest of the court staff. They deserve significant credit for propping up a system that I am afraid the Government have done little to support, as shown by those court closures. Only recently, I have received emails from some judges—especially recorders—who say that they are expected to attend different courts in the UK at the last minute. They sometimes cannot do so because of their own work commitments, but they are effectively told that if they do not, their chances of being confirmed as judges may well be impacted. There is evidence, even from the Ministry of Justice’s figures, that the time it takes for court cases to come to trial has recently grown longer, while courtrooms are sitting empty and shut. Despite that, our judges, recorders and magistrates continue to work really hard to support our system, and I commend and thank them for all their efforts.

Despite attempts by some people to find political intent in the recent Supreme Court ruling, the decision was a powerful demonstration of the vital power of a genuinely independent, apolitical judiciary. It ruled without fear or favour, and in doing so it protected our democracy. The judiciary in this country has a long and noble tradition, and it is best that we respect that.

Balanced, learned and direct, Baroness Hale is in many ways the best of that British tradition, but the barriers that she has faced are illustrative of how uneven our justice system still is. For far too long, justices have been predominantly people of privilege with wealthy backgrounds, predominantly men and predominantly educated at private schools. Baroness Hale was only the second woman to be appointed to the Court of Appeal. She is the first female Lord of Appeal in Ordinary and the first female President of the Supreme Court. It should worry us all that women still have to break the glass ceiling. A century on from the Sex Disqualification (Removal) Act 1919, we are still yet to achieve real proportional equality in our public bodies and institutions. The Law Society also agrees that our current system for the appointment of judges should be maintained and not changed.

I hope we can all agree that the US system is clearly a bad one, but perhaps today is an opportunity to focus the debate on how we can alter our judicial appointments system not to make it political, but perhaps to make it more representative. As a young barrister, I saw many hugely talented people who did not fit the accepted demographic of a judge. Some struggled their way to the top; too many did not. There have been encouraging steps as the number of female judges has risen. However, it is important that we do not fall into the trap that many businesses do and focus exclusively on comparing numbers without looking at seniority. Although it is heartening to know that the percentage of female tribunal judges is nearing 50%, that falls to 32% for court judges, and for high court judges the figure is well under 30%.

The issue is even more glaring in the case of black and ethnic minority members of the judiciary. Reading through the judicial diversity statistics this year, I see that the Ministry of Justice reports that 11% of new judges in the court were BAME, compared with 6% of those leaving. That is a paltry rate of change that will leave our judiciary disproportionately unrepresentative. The judicial mentoring scheme and the pre-application judicial education programme are good initiatives, but they are nowhere near enough. In a judiciary that continues to display systemic problems, well-intentioned mentoring schemes are unlikely to go far enough.

Worryingly, a metric seems to have crept in that rarely appears in official Government documents in any other Department. For several years in a row, the annual judicial diversity statistics have qualified their admission that the number of BAME judges remained low by comparing the ratio of BAME judges with the ratio of people within a certain age bracket. We are told that

“BAME representation among tribunal judges was similar or higher than that of the general population at all age bands from 40 and over.”

That might seem reasonable at first reading, but it deserves further attention. Where else in Government documents are disparities justified by cherry-picking age groups for comparison? That is done to match proportions that are decades out of date. Our judiciary should not be representative of people over 50, or even 40; it should be representative of our nation as a whole at every stage. Everyone who passes through our justice system should feel that it genuinely represents them. Between 2014 and 2019, the proportion of BAME court judges increased by 2%, which takes us to 7% of court judges. The Government need to move faster.

In the Lammy review, my right hon. Friend the Member for Tottenham (Mr Lammy) stated:

“The government should set a clear, national target to achieve a representative judiciary and magistracy by 2025. It should then report to Parliament with progress against this target biennially.”

It was a bold aspiration with an ambitious deadline. It was an opportunity to facilitate a change, but the Government have missed the opportunity. Despite some positive noises, we have not seen any real changes, and that leads us to the inevitable conclusion that a wealth of talent in the BAME community is ignored.

The fact that more than half of those currently held within the youth estate are BAME shows that there is something fundamentally wrong with our criminal justice system. Although improving judicial diversity is not a panacea for the wide variety of self-inflicted ills that harm our justice system, it would certainly be a significant step. Our judges should be representative of our country and should be diverse in terms of gender, ethnicity and, crucially, socio-economic background. We should also provide more support for those who are not barristers moving into the judiciary. Solicitors continue to form a small minority of judges, closing the profession off from other highly talented practitioners.

The Law Society has suggested some practical steps to ensure representation of solicitor judges: for example, ensuring that solicitors’ experience is given the same due weight as barristers applying for the Bar; ensuring that solicitor judges are involved in the selection process; considering the development of judicial career paths; promoting cross-deployment of judges from tribunals to court; and providing access to shadowing and mentoring opportunities for existing judges. That could apply to women, to members of the BAME community and to those from poor financial backgrounds; children from working-class backgrounds are very under-represented in our system.

Far too often, the Government treat representation as a cosmetic issue that can be changed with minor tinkering. They fail to recognise that the disparities come from histories of inequality that require fundamental reform to remedy. Rather than simply analysing data retrospectively, the Ministry of Justice should set clear deadlines and put plans in place. The public have a right to a judiciary that represents them in all their diversity.

With that in mind, will the Government accept that their judicial appointments system is not sufficient and adopt the approach laid out by the Lammy review? Will the Minister clarify what moneys will be set aside to ensure that judicial diversity is a central objective, rather than just a buzzword? That is essential not only on a moral basis, but on a practical one. A judiciary that is not perceived as representative will have difficulty in maintaining its legitimacy in the long term, particularly for communities who do not see themselves reflected at the most senior level of our justice system. We can fix the problem. It will require funding, long-term commitment and clearer strategic planning, which the Government appear not to offer at the moment. The Government need to go beyond expressing sympathy and set proper deadlines. I hope that when the Minister responds, he will be able to give us some deadlines and suggestions for what they can achieve.

Finally, I want to emphasise that my observations about the representation of ethnic minorities, women and working-class people have no bearing on my belief that our judiciary is the best in the world. No one should ever attack its credibility. Our judges are the best in the world, and they decide things on law, not on politics. The press and Members in this House should appreciate that.