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Solving the Judiciary's Diversity Problem?

About The Author

Kristyna Domokosova (Guest Contributor)

Kristyna is a graduate from the University of Leicester. She intends to continue her studies to obtain a master’s degree in law and subsequently practise as a barrister. Her primary areas of interest are intellectual property law and conflict of laws.

Law students often wonder about the differences between civilian and common law jurisdictions. Apart from more statutes (so-called “codes”) and less judicial discretion in a civilian jurisdiction, the ways that judges are appointed in these two legal systems is also contrasting.  Since judges have an important role in the law enforcement of a country, society should ensure that only the most qualified people with highly moral qualities are allowed to become judges. Undoubtedly, the process of appointing judicial candidates in common law countries, or of qualifying as a judge in civilian jurisdictions, has a significant impact on the quality and diversity of the judiciary in a particular country. I will address two main issues: judicial quality and diversity, as well as their potential interactions, focusing on two countries representing the different legal systems, namely the United Kingdom as a common law jurisdiction and the Czech Republic as a civil law system.

The issue of diversity in the UK professional judiciary

The UK underwent a major constitutional reform in 2005 when the then Prime Minister, Tony Blair, introduced the Constitutional Reform Act 2005 which addressed matters concerning the separation of powers, transparency of judicial appointments and diversity within the judiciary. Consequently, the Lord Chancellor was removed from his judicial post, the Law Lords moved out of the House of Lords to a new building across Parliament Square and the Judicial Appointments Commission now decides on new appointments taking into account both the traditional requirement of candidates’merit and the need for a diverse judiciary.

The aim of this reform, as Lord Mance pointed out, was not to increase the quality of the British judiciary, but rather to ensure greater transparency of appointments. The supporters of the reform expected more women and BEMs minorities to become judges in order to reflect our multicultural society and to put an end to the dominance of the white, male, Oxbridge-educated judges. However, since s. 63 of the Constitutional Reform Act 2005 still requires the Judicial Appointments Commission to make their decision solely on merit, the benches continue to lack diversity. Please see Georgia Mitchell’s article which further explores some of the issues with diversity within our judiciary and at the Bar.

The process of judicial appointments in the UK is as follows. Anybody with a qualifying law degree and 5-7 years' experience post qualification can apply for a judicial post and his application will be considered not only on merit, but also with the aim of ensuring diversity in the judiciary under s. 64 of the Constitutional Reform Act 2005. Although a British lawyer could join the bench from the young age of 26, it is unlikely that the candidate’s merit and required references would surpass older and more experienced applicants. This causes the problem of having an ageing judiciary, which is too old and, yet, one of the most experienced in the world. Furthermore, due to the requirement of professional and personal references, current judges tend to recommend their colleagues who attended the same University or successful barristers who they meet in court on a regular basis. It becomes a vicious circle, since those seeking references resemble their white, old, male, Oxbridge-educated referees.

Fortunately, concerns of a diversity requirement decreasing the quality of the judiciary have not come to fruition. Furthermore, although the new process of appointments did not fulfil all the aims of the reform, it has become more transparent and could potentially lead to more women and BEM judges in the future. However, if these attempts fail, the UK should consider the process of judicial appointments in other countries where judicial diversity is not an issue.

Career Judiciary in the Czech Republic

As opposed to the UK judiciary, the Czech Republic judiciary is definitely not lacking in female judges; in the constitutional court there are currently four female justices and lower courts, such as the District and Regional Courts, from time to time have more women than men in judicial posts.

The process of becoming a judge in the Czech Republic represents typical civil law systems in Continental Europe. It is governed by the Act No. 6/2002 Coll. on Courts and Judges (“Act No. 6/2002 Coll.”), which establishes a set of rules for becoming a judge in the country. Firstly, a candidate has to be a citizen of the Czech Republic, legally competent, of previously good character and at least 30 years old. Secondly, the candidate has to complete a Mater of Laws degree in the Czech Republic and pass a vocational justice examination. As opposed to the constitutional reform and its many amendments in the UK, the Czech system has not seen any changes in years, since the current Act is based on its predecessor dating back to 1964 according to the Author’s Interpretation to section 60 of the Act No. 6/2002 Coll.

To put it in a context, once a Czech judicial candidate fulfils all the requirements mentioned above and passes the vocational justice examination, he becomes a judge subject to availability of judicial positions. Due to the set of requirements, the Czech judiciary does not suffer from a lack of diversity, since women, men, BEMs and any other categorisation of person have the same chances of satisfying the requirements and passing the vocational justice examination. However, some could argue that these hurdles of age, competence and examinations do not ensure that only the most qualified and highly moral candidates become judges. On the contrary, in spite of its flexibility and lack of strict rules, the UK system in theory allows young ambitious lawyers to become judges since, unlike the Czech Republic, the UK has no age requirement. The question is whether it would be worth applying a set of rules similar to those seen in the Czech Republic to the appointment of judicial candidates in the UK?

Czech Rules of Judicial Appointments in the UK and vice versa

It is important to note that given the strict rules that every candidate has to fulfil before becoming a judge in the Czech Republic, many prominent UK judges would have never reached their current positions had there been similar UK norms. For example, Lord Sumption read history at Magdalen College, Oxford, and served for four years as a history Fellow of the College before he was called to the Bar in 1975 and took silk in 1986 (his Lordship did not obtain a law degree as it is required in the Czech Republic). Based on his success as a barrister, Lord Sumption was finally appointed to the Supreme Court in 2012. Similarly, Lord Steyn, a Justice of Appeal in Ordinary from 1995 to 2005, had read law in South Africa where he lived till 1973 when he left as a result of his opposition against apartheid.  He became prominent due to his espousal of human rights and his participation in creation of the Human Rights Act 1998.

On the contrary, I believe that introducing the UK system of judicial appointments based on references and connections in a country such as the Czech Republic would be unlikely to lead to an increase in the quality of the judges, but rather to a higher rate of corruption or a state of confusion in the judiciary. The British system of appointments is unique and otherwise anomalous arrangements clearly work in a country with long-standing democratic traditions. However, the perception of the judiciary is also important and the attempts to increase its diversity are likely to remain.

Conclusion

Both the traditional, flexible system in the UK and the rigid preparation and examination in the Czech Republic have their pros and cons. On one hand, having the most qualified judiciary chosen solely on merit ensures thorough enforcement of the English law and justice in the country. However, with regards to the multicultural British society, it is important for all people in the UK that justice will be seen to be done in representation of the values and beliefs of the jurisdiction. Lawyers, regardless of their gender, race, religious beliefs or disabilities, should not have to overcome unnecessary obstacles in application to become a judge. The quality of the judiciary would not decrease as a result of it being diverse and representative. To the contrary, new ideas and insights into various issues, concerning family, discrimination, etc. would be very welcome. Consequently, a balance should be achieved where women and minorities would not be appointed judges only for the sake of the diversity, but the process of choosing from the judicial candidates would ensure both quality and diversity.

I would suggest a combination of the two systems mentioned above:a set of requirements which when satisfied would secure a judicial position for a candidate and a system of references which would ensure that the candidate is well qualified, respected and highly moral individual. Diversity is vital for the quality of the British judiciary especially when the issues are more complex and concern variety of topics with which a male, white, old judge can be unfamiliar.

Further reading

Lord Mance, ‘Constitutional reforms, the Supreme Court and the Law Lords’(2006) Civil Justice Quarterly 155.

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