This is posted on behalf of Graham Gee and Kate Malleson and originally appeared on the UK Constitutional Law Association Blog.

One of the changes introduced by the Crime and Courts Act 2013 was to amend section 63 of the Constitutional Reform Act 2005, which provides that the Judicial Appointments Commission (JAC) must select candidates for judicial office ‘solely on merit’. Schedule 13 of the 2013 Act clarified that making selections solely on merit does not prevent the JAC from recommending a candidate on the basis of improving diversity on the bench where there are two candidates of equal merit. This is variously known as the ‘equal merit’, ‘tie-break’ or ‘tipping point’ provision and derives from s 159 of the Equality Act 2010. After a consultation exercise last summer, the JAC last month published its policy on how it will implement the equal merit provision. In this post, we draw on research conducted as part of an AHRC-funded project on The Politics of Judicial Independence to explain why the JAC’s policy is disappointingly cautious, limits the prospect of further progress on diversity and offers further evidence of what we believe is the excessive judicial influence on judicial appointments 

Context

We begin with some words of praise for the JAC. Since its creation in 2006, the JAC has inter alia devised: robust processes that have for the most part identified suitably qualified candidates of good character; addressed problems that were an early feature of those processes (e.g. delays); and over time has fostered the confidence of the key stakeholders (i.e. ministers, judges and practitioners). It has done this all of this whilst becoming a leaner and more efficient operation in an age of increasingly scarce public resources. Between 2009-10 and 2014-15, its budget is projected to have fallen from £7.6m to £4.85m, its staff from 105 to 67, and yet the number of recommendations for judicial office that the JAC has made has risen from approximately 450 to 750 a year. These are important accomplishments that have helped to secure the JAC’s position on the institutional landscape, something that was much less certain around 2008-09 when the then Lord Chancellor, Jack Straw, considered abolishing the JAC and either bringing appointments back in-house or delegating more responsibility to the senior judges. Much credit is due to the leadership team of Christopher Stephens as Chair and Nigel Reeder as Chief Executive, who since 2011 succeeded in fostering much more constructive and cooperative relationships with the JAC, the senior judiciary and the Ministry of Justice.

All that said, we remain concerned, like many others, by the relatively slow progress in increasing judicial diversity. It is true that women constitute around 40% of the nearly 3,500 recommendations made by the JAC between 2006 and 2013, with BME candidates around 10%. It is also true that some recent selection exercises have seen women appointed to senior roles: for example, in 2013, five out of the 14 recommended for the High Court were women, while three women filled 10 spots on the Court of Appeal. Given the exceptionally small number of women in the senior judiciary, this might be deemed slow but steady progress; or as a senior judge put it to us, it might be thought that ‘the dam has broken’. But change has been slower than expected, and improvements have largely been concentrated in the lower ranks, and particularly in non-legal tribunal appointments, with the upper ranks of the judiciary remaining substantially untouched. The JAC chair himself acknowledged in March in evidence to the Justice Committee that he was ‘absolutely certain’ that there would not be an equal representation of women on the bench within five years. It is against this backdrop that the JAC’s policy on equal merit is so disappointing.

Equal Merit Policy 

The JAC manages a highly formal selection process involving advertising, short-listing by tests or paper sifts, interviews and, for some vacancies, presentations or role-playing. For each vacancy, the JAC must recommend a single candidate to the Lord Chancellor, Lord Chief Justice or Senior President of Tribunals, depending on the vacancy. Under its new policy, where two or more candidates are assessed as having the skills, experience and expertise that result in them being considered equal when assessed against the selection criteria, the JAC may apply the provision

‘to give priority to the candidate with declared protected characteristics which are the least well represented in the office to which they are being recommended for appointment’. In devising this policy, the JAC faced two critical questions. First, should the provision apply to all stages of the selection process, including short-listing, or just once at the final stage where the JAC makes its recommendation? Second, to which groups of people should the equal merit provision apply? The JAC answered both questions very narrowly, adopting what its chair has conceded is ‘a fairly minimalist’ approach.

The JAC will apply the provision only at the final selection stage. This blunts the provision’s potential to increase diversity. As we see it, the premise that there may be candidates exhibiting different strengths and weaknesses who are considered of equal merit is relevant to short-listing and final selection. Applying the provision at short-listing could help remove barriers that might prevent non-conventional candidates being called for interview. The JAC has further limited the provision’s potential by applying it only to race and gender. It has done so on the grounds that the provision should only be used where under-representation can be demonstrated by reference to published data. We recognize there are practical difficulties related to the availability of reliable data for some of the ‘protected characteristics’ under the Equality Act 2010. However, the JAC needs to be more proactive in widening the number of protected groups to whom the equal merit provision can apply. This means collecting reliable data for groups other than race and gender. We further recognize that collecting personal data can be problematic; for example, many applicants in the judicial appointments process seem reluctant to disclose personal data. But this is a problem with which many organizations are grappling as they implement important equality and diversity legislation. The JAC needs to devote more time and resources to being a pioneer on such matters rather than reacting to developments elsewhere. A more pioneering and proactive approach would be consistent with the JAC’s duty to ‘have regard to the need to encourage diversity in the range of persons available for selection’.

Several commentators question whether the provision will make much difference to the composition of the judiciary. In particular, some doubt whether there really will be many occasions where two or more candidates are deemed equal, all things considered. After all, the JAC’s Chair suggested in late 2011 that there had been no two broadly indistinguishable candidates out of the 500 recommendations made by the JAC since he assumed office earlier that year. If it is indeed the case that the JAC is always able to distinguish between candidates, then it would be unsurprising if many were to agree with Alan Paterson and Chris Paterson that the equal merit provision ‘runs the risk of marking merely another positive headline backed by very little positive impact in terms of addressing the glaring diversity deficit’. However, we prefer the position of the former JAC Vice-Chair, Lady Justice Hallett, who has suggested that it is not ‘as rare as people think that you have candidates who are equally qualified’. To grasp the potential of the equal merit provision requires a certain attitude—and perhaps a change of attitude amongst some currently serving on the JAC—about the type of assessments made by selection panels when faced with candidates with different but commensurable judicial qualities.

In short, the provision has the potential to be a useful tool to address the diversity deficit. However, as narrowly interpreted by the JAC, the equal provision is likely to have very little impact. If the JAC was strongly committed to using it in its full extent, was willing to apply it at more than one stage of the selection process, and to apply it to a wider range of protected characteristics, the provision could make a difference. The decision to use it in this very limited way is ultimately a political decision about the weight given to diversity. The question that arises is this: why is the JAC seeming to place so little weight on the issue of diversity?

Judicial Influence on Judicial Appointments

On our reading, the JAC’s extremely narrow policy on the equal merit provision is potential evidence of the excessive judicial influence on judicial appointments. We have pointed to the high—and, in our view, too high—levels of judicial influence on JAC-run selection processes in previous posts on this blog; see here and here. In a forthcoming book (with Robert Hazell and Patrick O’Brien), we argue that although senior judges acknowledge the lack of diversity, and seem genuinely keen to see change, they have for the most part resisted initiatives that are designed to bring about a much faster transformation. We also argue that over time, and over several different issues, the JAC has become less willing to challenge senior judges over this. As one of our interviewees put it, the senior judges are ‘very effective’ in achieving their ‘desired outcomes’ when interacting with the JAC.

We suspect that the policy on the equal merit provision is a further product of the high levels of judicial influence on the judicial appointments processes. Over half of the responses to the JAC’s consultation exercise on the equal merit policy were from judges and their representative bodies. There were also lengthy discussions in private between the JAC, the senior judges and the Ministry of Justice. Possible evidence of the influence of judicial concern about equal merit can be seen in the comments of the JAC Chair in his evidence before the Justice Committee: ‘[t]here is serious caution among many…the stakeholders…are cautious about [the equal merit provision]’. If we are correct in suspecting that judicial caution is largely responsible for the JAC adopting such a narrow policy on equal merit, then this merely underscores that the challenge confronting the appointments system in the years ahead is less the threat posed by inappropriate ministerial interference, but the cumulative consequences of excessive judicial influence.

Conclusion

The JAC will report the number of occasions the equal merit provision is applied in its twice-yearly Official Statistics Bulletin. It has also committed to keeping the provision under review. We welcome this. And plainly, the proof of the pudding will be in the eating, and even the JAC’s narrow policy may have more of an impact than we predict. On the basis of the narrowness of its policy, however, there is reason to suspect that this may prove to be another missed opportunity for the JAC to send a strong signal of the importance it attaches to diversity.

Graham Gee is a lecturer at the University of Birmingham and Kate Malleson is a professor at Queen Mary. Together with Robert Hazell and Patrick O’Brien from the Constitution Unit at University College London, they recently completed an AHRC-funded project on “The Politics of Judicial Independence”.