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The Need For Judicial Diversity Essay

2013 words - 8 pages

The given statement suggests that the emphasis on judicial diversity is unnecessary since there is no guarantee that a diverse judiciary would arrive at a different decision than that of a conservative judiciary. This essay attempts to argue that although there is no evidence that a diverse bench would radically change the outcome of a given case, the quality of justice will be substantially enhanced by the inclusion of a range of perspectives from which are currently not represented by the English judiciary.

John Griffith’s thesis asserted that the English judiciary comprises of judges who as a whole are of ‘a unifying attitude of mind, a political position, to protect and conserve certain values and institutions’. Before the Judicial Appointment Commission was established conservatism was sometimes facilitated by various policies put in place by the Lord Chancellor . ‘Conservatism’ here is used to denote conformity to traditional values as opposed to political ideals. Lord Hailsham, the Conservative Lord Chancellor until 1987 had implemented a policy to appoint only married candidates. Professor Leslie Moran notes that this was clearly a measure to avoid a ‘homosexual controversy’. Only in 1991 was there an official announcement declaring that homosexuality will not be a bar to judicial office.

Kate Malleson remarks that even the current recruitment pool which is dominated by middle aged successful barristers does seem to evoke John Griffith's theory of judicial conservatism. However, the apparently conservative composition of the judiciary does not necessarily mean that it gives preference to traditional views. In contrast to the US Supreme Court, there is little concern whether a UK judge’s social and political views are conservative or liberal, and it seems to have minimal bearing on his or her decision making.

The unanimous decision in case of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] is particularly illustrative of the conservative judiciary actually upholding and enforcing the rights of those who are not apparently represented in the court’s composition. In HJ and HT, the Supreme Court ruled that as a State party to the Eurpoean Convention on Human Rights, the United Kingdom could not refuse asylum to a homosexual person who would be forced to conceal their sexuality in fear of being persecuted back in their home country. Lord Rodger SCJ’s (Male? Check. Attended a Private school? Check. Oxford or Cambridge educated? Check .Former Queen’s Counsel? Check) judgement shows meticulous contemplation of the issues faced by the homosexual asylum seekers :

‘At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved,...

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