Spoilt for choice?Posted in Articles, Law, Media Archive, Politics/Public Policy, United Kingdom on 2012-02-25 03:50Z by Steven |
New Law Journal: Leading on debate, litigation & dispute resolution
Vol 162, Issue 7498
2012-01-26
Adrian Jack, Barrister & Rechtsanwalt
Enterprise Chambers
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 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…
Read the entire opinion piece here.