It is widely acknowledged that the judiciary within England and Wales is not representative of the wider society. The composition of the judiciary is regularly subject to criticism on its apparent homogenous identity’ being largely comprised of elderly, white male barristers educated at Oxford or Cambridge. This ethos has prevented diversity within the judiciary, particularly the upper echelons of the judiciary. Academics such as John Griffith have suggested that the narrow range of the judiciary threatens to undermine public confidence in the judicial system. Similarly, Baroness Hale argues that a representative judiciary is paramount for directives associated with the promotion of equal opportunities and strengthening of judicial legitimacy. The government has attempted to combat these issues with statutory and procedural changes to the Courts and Legal Service Act 1990, the Courts Act 2003, the Constitutional Reform Act 2005, and the Judicial Appointments Committee. However, the government’s reforms have made little impact on the demographic profile of the judiciary, as the cornerstone of all judicial appointments is merit. Until diversity can break into the judiciary, particularly the upper echelons of the judiciary there will continue to be a lingering threat to the publics confidence of the judiciary as diversification has yet to materialize.
Structural changes prior 2005
Prior to the 2005 reforms, the appointment of judges to England and Wales’s judiciary was fraught with secrecy and bias with a total disregard for transparency and accountability. The old ways of appointment have been described as an “old boys” network of informality creating a self-sustaining system. John Griffith argues this in his work, Politics of the Judiciary, that the limited range of backgrounds from which members of the judiciary are drawn has resulted in the existence of a judiciary that is biased in preserving their traditional and established interests. These problems blossomed in the old system of selecting judges. The Court and Legal Service Act 1990(amended by Courts Act 2003, s71) was the governments initial attempt in diversifying the judiciary. It aimed to formalize the appointment process while expanding the ability to acquire rights of audience to any legally qualified person; whilst, making appointments to the judiciary dependent on practical experience. However, this proved unsuccessful, culminating in a published report in 2003 by the Judicial Appointments Commission expressing, “ that there was systematic bias in the way that the judiciary and the legal profession operated. This bias prevented women ethnic minorities and solicitors from applying successfully for judicial office”.
In 2005, the Constitutional Reform Act, created a new procedure for appointing judges up to and including the High Court. The Act states that there is a need to encourage diversity in the range or person’s available for selection 64(1) but...