Spoilt for choice?
Date: 26 January 2012
Authors: Adrian Jack
Issue: Vol 162, Issue 7498
Categories: Opinion, Profession
The government is consulting on creating greater diversity in the judiciary. Where candidates for judicial appointment are of similar merit, membership of a “protected category” should be a trump card, allowing the candidate with that status to be appointed over the rival.
The idea is a simple one. If a white and a black candidate are of roughly similar merit, the black candidate should be appointed. Likewise, if there were a male and a female candidate, the female should go through.
Immediately though a problem arises. What if a black man is up against a white woman? Does the black man’s ethnicity trump the other candidate’s sex? Or vice versa?
One solution in such a case would be to disregard the protected characteristic of both candidates. However, this would not necessarily increase diversity. Take a woman applying for a tribunal post. In tribunals 38% of judges are women (against 51% in the population at large), whereas the percentage of black, Asian and minority ethnic judges is 10.5%—more than the nine per cent in the population (Report of the Advisory Panel on Judicial Diversity, para 18). A woman should surely be able to argue that the black male candidate’s ethnicity should be ignored (because the tribunal judiciary is already sufficiently ethnically diverse), so giving her the tie-break.
Indeed the problems do not stop there. The consultation implies that it will be readily apparent which candidates have protected characteristics. Yet this is not so. Who is “black”? Someone of mixed race must qualify. But what of someone who is one eighth of black heritage? Or one sixteenth?
In a case of race discrimination in the employment tribunal it is normally sufficient for claimants to self-describe their ethnicity. If a claimant has such a small proportion of black ancestry that they show no physical or cultural signs of that ethnicity, then the claimant is unlikely to show that he was treated less favourably on the ground of his race.
The responsibility of the JAC
It is different where membership of a favoured class is a winning card for appointment. In such cases, the Judicial Appointments Commission (JAC) would for the sake of fairness need to be satisfied that the candidate who was to be favoured was entitled to that benefit. No assertion made by a candidate as to their protected characteristic could properly be made without making any check.
Yet if the JAC needs to check, it also needs definitions. A person who is of quarter black heritage might objectively be “black”, but a person of one eighth black heritage might not be. The JAC would need to decide.
Ethnic categorisation
What of ethnic categorisation? At present the JAC has only three groupings: white, BME, and other. Yet these are too narrow properly to show the ethnic diversity of Britain. Those of Indian heritage are often better educated than those of Pakistani or Bangladeshi heritage. It may be (although since the JAC does not publish such statistics we cannot know) that those of Indian heritage are much better represented (as a percentage) in the judiciary, than those of Pakistani or Bangladeshi heritage. Should a candidate of the latter heritages not be entitled to preference over those of Indian heritage? Yet how will provision be made for this in the application process to the JAC?
A further issue will arise as regards “refuseniks”—candidates who refuse to take advantage of their “protected status”. Already some candidates refuse to declare their sex—up to five per cent in some competitions (JAC Dec 2011 statistics). If a system of preferential treatment is introduced, some women will refuse to acknowledge their sex, to avoid the stigma that they were appointed by reason of their sex. Yet the system will fall into disrepute if a self-declared woman is appointed (because she is a woman) over another, marginally better, woman who refuses to take advantage of her status.
Sexual orientation minefield
Sexual orientation is another minefield. Take two male candidates, A and B, both of whom declare that they are homosexual. A has repressed his sexuality but reveals it for the first time to the JAC; B has always been open about his sexual orientation. A has the slight edge on B, but they are both eminently appointable. Because both have the protected characteristic the JAC recommends A for appointment. If B can show that A was not in truth homosexual, B can potentially challenge the decision before the judicial appointments and conduct ombudsman, the employment tribunal, and the administrative court.
Feedback
The last practical problem concerns feedback. Will the JAC tell a candidate who has failed, that he or she would have succeeded, but for another candidate who had a protected characteristic? Yes, as a matter of transparency; but fearing litigation the JAC is likely to say “No”. That may be self-defeating, because a refusal will spark applications to the employment tribunal, just so that the disappointed applicant can learn if he or she was the subject of such treatment and challenge it. Either way there will be litigation.
Whatever the merits or otherwise in principle of the proposal to give preference to those with a protected characteristic, in practice the idea is unworkable.
Adrian Jack, barrister & Rechtsanwalt, Enterprise Chambers.
E-mail: adrianjack@enterprisechambers.com
Website: www.enterprisechambers.com
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