Encouraging greater judicial diversity is no easy task, says Adrian Jack
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
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