In 2006 the days of the ‘tap on the shoulder’ were brought to an end with the creation of the Judicial Appointments Commission (JAC). The JAC promised much. The aim was to create a transparent and merit-based approach to the appointment of judges. The Judiciary was not going to remain the dominion of public schools, Oxbridge, wealth, privilege and connections. Has the JAC has succeeded in breaking down the barriers of socio-economic disadvantage?

According to the latest judicial diversity statistics (Diversity of the Judiciary: Legal Professions, new appointments and current post holders – 2023 Statistics):

‘For all legal exercises in 2022-23, individuals who attended a UK state school had a slightly lower recommendation rate from application (12%) compared to those who attended a UK independent or fee-paying school (15%). Those who attended a UK state school made up 73% of applications and 71% of recommendations.

‘Almost all (99%) applicants attended university. Applicants who were the first generation in their family to attend university (i.e., neither of their parents attended university) had a lower recommendation rate from application (11%) compared to candidates who were not the first generation to attend (16%).’

The disparities set out above may be said to be small, but are still a cause for concern.

In any event, the yardsticks used to measure socio-economic equality do not address levels of poverty. This failure to assess the levels of economic disadvantage needs to be addressed, and could be easily redressed by asking judicial candidates:

  • whether they or their parents received state benefits (beyond child benefit);
  • whether they received free school meals;
  • if their parents rented their accommodation whether or not this was paid for by housing benefit;
  • if they experienced homelessness; and
  • if they were a looked after child.

The answer to such questions would give a much clearer picture as to whether or not those from the most deprived economic backgrounds were being treated fairly in terms of the judicial application process.

Attitudes to social mobility

There are mixed signs in respect of attitudes to social mobility. JAC’s January 2023 diversity update hardly mentions it and instead focuses on other areas of underrepresentation in the Judiciary while not forgetting its statutory duties under the Equality Act 2010. The irony, of course, is that one way of instantly further progressing equality in terms of social mobility would be to implement s 1 of the Equality Act. This would impose a duty on the Ministry of Justice (MOJ) and JAC to factor in the inequalities of outcome which result from socio-economic disadvantage in any judicial competition.

The JAC’s July 2023 update had some more promising news and stated that: ‘Following a review of social mobility data, the JDF [Judicial Diversity Forum] Statistical Working Group is working to achieve further alignment in collection and reporting for 2023, with the aim of enhancing the data and analysis on social mobility in future Combined Statistics reports.’ This is an improved timeline on the JDF’s Priorities and Actions for 2023 which committed to new data sets and analysis on social mobility from 2025, and it is important that such change is meaningful and impactive.

While increasing the baseline evidence of lawyers’ and judges’ characteristics is imperative, we also need barristers to be prepared to answer questions about their socio-economic backgrounds. As Nick Vineall KC, Chair of the Bar, and Fallon Alexis, Vice-Chair of the Bar Council’s Education and Training Committee, write elsewhere in this issue (‘The timing of call’):

‘We don’t have such a good handle on how the social background of the practising Bar compares with the population as whole. That is partly because it is a difficult thing to measure and partly because when we do ask people questions about their social background not enough people answer.’

Expanding action and outreach

The JDF in its Priorities and Actions for 2023 makes mention of Social Mobility Ambassadors to ‘act as visible role models, champions, mentors and provide support’ in the context of the Law Society and not the Bar Council. I would suggest that the Bar Council’s established Social Mobility Advocates also need to be part of this drive to make the Judiciary more representative. Further, that the MOJ also needs to appoint Judicial Social Mobility Ambassadors who will be expected to undertake vital outreach work in the professions.

Judges, especially in the High Court and above, are still very much the product of public schools and Oxbridge. In Elitist Britain 2019: The educational backgrounds of Britain’s leading people, the Sutton Trust and Social Mobility Commission described senior judges as ‘the most rarefied group’, with two thirds attending private schools and 71% graduating from Oxbridge. Over half (52%) of senior judges were found to have taken the same pathway from independent school to Oxbridge and then into the Judiciary.

These figures were slightly lower than in the previous Elitist Britain analysis (2014), but still ‘far removed from even many fellow members of the elite’. One of the 2019 report’s recommendations was to enact the ‘socio-economic duty’ clause of the Equality Act 2010 as a centrepiece of a ‘key mission across the whole of British society to ensure we make use of the talents of people from all backgrounds’. In addition to recommending that data on socio-economic background should be collected and monitored in the same way as gender or ethnicity, the report also suggested that ‘obligating public bodies to give due regard to how they can reduce the impact of socio-economic disadvantage would send a powerful signal’.

Keeping faith in our legal system

It is almost five years on from Elitist Britain, and both the MOJ and the JAC can be said to be failing in respect of social mobility. The fair appointment of judges is such a vital task in our democracy that the time is long overdue when Parliament needs to instigate and deliver a root and branch investigation of the MOJ and JAC to see if radical reform is necessary. The Bar Council should be vocal in pushing for such action.

The political elite, most of whom come from privileged backgrounds including fee-paying education, is out of touch. However, social mobility inequality will be a campaigning ground in the next election. Therefore, those seeking election will need to act or lose their seats.  

We need more working-class people to be appointed as judges otherwise the public will lose faith in the legal system. The lead ceiling needs to be broken and this inbuilt discrimination brought to an end now.