One thing is clear about the Labour 2017 campaign: given the number of bandwagons he’s been leaping onto, our Jeremy will at least end up fighting fit from the exercise. In this connection, one proposal that may have escaped your attention is buried on page 80 of his party’s manifesto. We will, say the party, “review the judicial appointments process, to ensure a judiciary that is more representative of our society.” This apparently innocuous idea is worth a slightly closer look.
It’s a proposal that’s been floating around leftish circles for some time. Supreme Court Justice Lady Hale (a Blair appointee whose views on social matters are no secret, especially to TCW readers – here, for example) is on the record saying that the Supreme Court must seek diversity and social representativeness as a matter of principle; the Guardian, not surprisingly, agrees. Recently, a working party from JUSTICE, in the 1950s a splendid group of quixotic lawyers espousing unfashionable causes but now a comfortable left-of-centre lawyers’ club, regarded it a matter of high constitutional principle that the judiciary should “reflect the make-up of the nation.” And one mustn’t forget the contribution of Peter Herbert, a junior judge disciplined for alleging deliberate racism against the election commissioner who removed Tower Hamlets mayor Luftur Rahman from office for corrupt and illegal practices; his response was a spectacular rant in the Independent accusing the legal system he worked for as being not only unrepresentative but pervasively racist as a result.
But step back a moment and think. If ever there was a profession where one would have thought a certain uniformity of outlook should be at a premium, surely it is judging. It’s not like advertising or entertainment, where good ideas frequently come out of a cacophony of diverse thoughts and opinions. With law you want to be sure that your case will be decided in much the same sober and straightforward way whoever you chance to draw as the judge. Few litigants, one suspects, would be very happy to be told that they had been entered into a sort of litigational lottery, however scrupulously the odds of getting the judge they wanted were arranged, so as to reflect the make-up of the community as a whole.
Nor is it very convincing to say that failing to chase representativeness means we can’t be getting the best judges because we’re ignoring be some vast untapped pool out there. This kind of argument simply doesn’t stand up to scrutiny. Many excellent law firms, for example, are predominantly Jewish. Again, footie fans will know that Crystal Palace FC has a vastly disproportionate number of Africans in its first team by reference to the UK population as a whole. Yet somehow we don’t often hear it suggested that it stands to reason that the former would win more cases if they went out of their way to recruit Gentile jurists or that the latter would score more goals if they rebalanced the races by a programme to give whites preference in recruitment. There are many ways to achieve excellence: treating judicial or other jobs rather like the lucky dip at a toddlers’ party, where everyone expects a fairly even distribution among the visitors, is not a good one.
Alternatively, we might be told that it’s a matter of respect: a representative judiciary is the only one that will receive the respect of litigants and others. But again, just think for a moment. Imagine a comprehensive-educated litigant who, in the run of things, is allocated a judge who went to Sherborne. Will that litigant really have any more confidence in the latter’s ability if he knows that his chances of drawing a comprehensive alumnus had been 93 per cent (roughly the relevant proportion of the population) rather than, say, 25 per cent? It seems unlikely. Indeed, the belief that he would is itself pretty insultingly patronising. It is the belief of a comfortable dweller in some leafy suburb, himself scrupulously indifferent to the background of the judge who will decide his case, that the lower orders must be too obtuse or ignorant to share his own sensible approach, and thus must be in need of his guidance.
What we are really seeing here, in the proposal for a supposedly “representative” judiciary, is two different things. One is a fairly naked grab for power: an excuse for progressives, if they obtain power, to install “their” people on the Bench who will enthusiastically enforce their own progressive (i.e. generally interfering and confiscatory) legislation without complaint or comment. The other is a reflection of one of progressives’ most visceral, but nevertheless unexpressed, instincts: namely, an insistence that our lives should be run by process and rules, rather than by – forgive the pun – sound individual judgment. Do things that way, and you avoid having to talk about that most conservative of institutions, individual responsibility. If you end up with a thoroughly second-rate judicial appointment, you don’t have to admit someone made a mistake: in best corporatist fashion, you just issue a statement that you had in place fair and robust procedures, and that if the wrong man got appointed, at least it was all done fairly and nobody was discriminated against. Now, doesn’t that make everyone feel happy?