Diversity in the judiciary: statutory consultation
The judicial application process needs reform to make sure it’s fair and mirrors the diversity of the applicants’ pool and of wider society.
Just 1% of England and Wales’s judiciary is Black – and that has not changed since 2014.
The proportion of solicitor judges in courts and tribunals has decreased since 2014.
We’ve been calling for the abolition of statutory consultation – a process where the Judicial Appointments Commission (JAC) consults with sitting judges about new appointments.
Described by some as ‘secret soundings’, this process is separate to the requirement for each candidate applying to become a judge to nominate two referees.
We’ve prompted an external review of the process, responding to its findings and the JAC’s proposals.
Raising your concerns
We received concerning feedback about the use of statutory consultation, for instance, that it:
- lacks transparency and clarity, and
- potentially impacts judicial applicants from less traditional backgrounds (including ethnic minorities or solicitors) who are less known to the judiciary
We raised these concerns with the Judicial Diversity Forum in summer 2021, suggesting that statutory consultations be removed completely.
In response, the JAC commissioned an external review from the Work Psychology Group (WPG).
Review results: is the process fair?
The WPG published its recommendations in March 2022.
It lists a series of problems with statutory consultations, how they are applied, and how they may impact some candidates unfairly:
- consultations are not carried out in a consistent way across different recruitment exercises
- feedback may not be evidence-based
- comments are made on some candidates and not others
- contributions are not shared with candidates
Sometimes, the statutory consultee will seek others' views on a candidate, who may seek views from others in turn. We believe:
- there is no statutory authority for delegating feedback in this way
- this breaches recruitment best practice
Proposals for change
In its response, the JAC proposes removing statutory consultation for large-scale recruitment exercises.
While we agree this is a step in the right direction, we believe that this would not remedy the underlying issues with the process.
We’ve told the JAC and lord chancellor that we believe:
- the current regulations may have been misinterpreted
- the JAC should consult on a role’s requirements but not on individual candidates’ suitability
- statutory consultations should be removed completely
Law Society president I. Stephanie Boyce said: “We know a diverse pool of candidates is applying – not least from among the much more diverse solicitor profession. They’re just not making it through the process in the same numbers. It is time for the whole appointments system to be overhauled to deliver a more diverse judiciary.”