A recent report laid out recommendations for improving diversity in the judiciary, including a quota system for women and BAME candidates. Kate Malleson and Colm O’Cinneide explore the legality of such measures under EU law, and specifically whether the quotas could be brought in under EU employment law or EU gender equality law.

In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic (BAME) judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

In the 2012 case of O’Brien v Ministry of Justice, the CJEU indicated that it was a matter of national law as to whether judges should be classified as being in an employment relationship, but made it clear that their status would have to be ‘substantially different’ from that of employees before the relevant provisions of EU employment law would not apply – in this case, the Directive relating to the treatment of part-time workers. Subsequently, when this case was remitted back to the national courts, the UKSC decided that Recorders were in an employment relationship and therefore the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applied. Although Recorders work on a part-time, fee-paid basis and are not permanent judges, the logic of the Supreme Court’s approach in O’Brien would suggest that a similar approach would be applied in general to their full-time, salaried equivalents, who are therefore likely to be classified as being in an employment relationship for the purposes of national and EU employment law.

However, a different conclusion could be reached in respect of Supreme Court Justices, given their particular constitutional role. In many European states, constitutional court judges are not considered to be employees: the view is taken that such a status would be incompatible with their status as holders of a high office of state. Furthermore, as the report makes clear, sensitivity surrounds the issue of whether EU law can or should impact on national constitutional arrangements relating to the status of constitutional courts. These considerations suggest that both the UKSC and the CJEU might be reluctant to hold that the Supreme Court was subject to EU employment law. It would certainly have been very unlikely that members of the Appellate Committee of the House of Lords would have been deemed to be in an employment relationship. The same view could be taken of the Supreme Court given that its role has not significantly changed, despite no longer being structurally part of the legislature. (The interesting question of whether the Supreme Court could legitimately decide whether its own members are employees or not will have to be left to a future blog post, if and when the issue arises).

The current position therefore seems to be that, while O’Brien does not settle this issue definitively, it is likely that members of the judiciary in general will be regarded as ‘employees’ for the purposes of EU law: the status of Supreme Court judges remains less clear. In turn, this means that the provisions of EU gender equality law, in line with the provisions of Article 1 of the Recast Gender Equality Directive 2006/54/EC, would apply to conditions of ‘access’ to that employment, including the judicial selection process.

If so, this gives rise to the question of whether quotas for women and BAME candidates would be lawful within the framework of EU gender equality law. The Monaghan and Bindman report concludes that they would. Given that European law in this context is relatively unsettled and that no cases have been considered by the CJEU specifically on quotas for judicial appointments, some elaboration of the report’s conclusions is required.

The legitimacy of positive action involving preferential treatment of women is well recognised in EU law, as reflected in the provisions of Article 157(4) of the TFEU (formerly Article 141(4) TEU) and Article 3 of the Recast Gender Equality Directive 2006/54/EC.  It is generally accepted that such preferential treatment will be lawful if it is justified and proportionate – i.e. the usual proportionality test is applied. However, the CJEU initially took a restrictive approach in applying the proportionality test in this context, ruling in the case of Kalanke in 1995 that quota systems involving automatic preference for female candidates constituted a violation of the principle of equal treatment as between men and women. In the case of Abrahamsson in 2000, the CJEU similarly ruled that preferential treatment can only be applied to compensate for existing disadvantage as a ‘break factor’ between ‘equally qualified’ candidates, and that an individual merit ranking system has to be initially applied to rank candidates before any automatic preference could be given to members of an underrepresented group. However, this case law has attracted strong academic criticism for imposing excessive constraints on the use of positive action. (See in general C. O’Cinneide, ‘Positive Action and the Limits of the Law’ (2006) Maastricht Journal of European and Comparative Law 351-365.) More recently, the Court has not applied the proportionality test in such a restrictive manner in relation to other situations where women benefited from preferential treatment designed to compensate for established inequalities. For example, in the case of Lommers in 2002, the Court considered that a child care scheme which gave priority to women was compatible with the principle of gender equality, on the basis that the scheme in question was intended to address the under-representation of women.

As such, the legal position in EU law relating to positive action measures designed to redress under-representation of women remains unsettled. The same is true as regards positive action measures directed towards addressing the under-representation of BAME groups: no European case-law exists on this point yet.

However, as noted in the Monaghan and Bindman report, the CJEU in assessing the proportionality of a quota system being used in the UK judicial appointments process is likely to take into account the continued lack of progress on diversity in this context, as evidenced by the recent Council of Europe statistics which show the three UK judiciaries languishing at the bottom of the league table for the proportion of women judges – beaten to the bottom only by Azerbaijan and Armenia. This context makes it more likely that the CJEU would be prepared to uphold a quota scheme as a proportionate response to this ongoing problem, especially given the failure of other less radical policy approaches to address the problem of female and BAME under-representation in the senior ranks of the UK judiciary. It is also arguable that the special constitutional and social importance of the judicial selection process might lead the CJEU to depart from the stricter Abrahamsson approach and to adopt the looser standard of review adopted in Lommers, especially given its preference for non-intervention in national constitutional issues.

To summarise: If judicial selection falls outside the scope of EU law, then it has no effect on any quota system. However, if, as is likely, judicial selection (at least in respect of appointments below the level of the Supreme Court) comes within the scope of EU law, then the legality of the quota system will depend on whether the CJEU adheres to the restrictive approach it adopted in Kalanke and Abrahamsson, or whether it adopts a looser, more accommodating standard of review as it did in Lommers. Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law.

This post originally appeared on the UK Constitutional Law Association blog. It is reposted with permission.

About the Authors

Colm O’Cinneide is a Reader in Law at University College London.

Kate Malleson is Professor of Law at Queen Mary, University of London