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Solicitor judges: A sticking plaster of sorts

Making more solicitors judges not the answer to bench’s diversity shortcomings

21 March 2017

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While selecting judges from the widest pool of lawyers helps the creation of better law – as well as engendering a broader legitimacy and public confidence in the bench – simply making it easier for solicitors to begin their judicial careers may not be the panacea to producing a more inclusive judiciary.

At a panel discussion hosted by the London Solicitors Litigation Association and JUSTICE this week, lawyers and judges debated the opportunities and challenges for reflecting greater diversity at the bench in 2017. Chaired by Baroness Shami Chakrabarti at Simmons & Simmons, much of the debate centred on how more solicitors could hold higher judicial office, a realm usual reserved for the Bar.

Highlighting how 89 per cent of circuit judges and 99 per cent of High Court judges are drawn from the ranks of the barrister profession, George Lubega, a Nabarro partner and adjudicator for the traffic penalty tribunal, said it was ‘a truism that the Bar does not produce diverse candidates for high judicial office’, adding, ‘it is just too difficult to [become a judge] as a solicitor’ compared to ‘someone who has “the right sort of experience”’.

‘If it isn’t a question of opening [the judiciary] up to more solicitors then I don’t know where the diversity is going to come from,’ remarked the solicitor advocate. ‘We have a choice to either make the Bar more diverse – which we would all like to see, but is going to take a long time – or we start opening it up to solicitors. In practical terms, that is the reality.’

There was, however, a counter viewpoint. Matrix Chambers’ Karon Monaghan QC, who is also a deputy high court judge, warned there was a danger that a strategy which concentrated on solicitors could lead to future judicial appointments being given to senior lawyers in large commercial firms, ‘who are also largely white men’.

Francesca Kaye, a partner at Russell-Cooke, cautioned against navel gazing by a profession which needed to recognise that in the eyes of the public, ‘solicitors, barristers, and judges are all just “lawyers”’. ‘We have to challenge ourselves about whether the route [to greater diversity] through the solicitor profession is the easy answer, rather than the more difficult answer, which is addressing why it is we are not more inclusive.

‘There are much bigger questions to look at – social mobility is a good one – and the causes of why there is a less broad base. Just looking at solicitors because the profession is more diverse might be too easy an answer and might not actually get to what the root of the problem is,’ said the deputy chancery master and deputy district judge.

‘I’m not suggesting more solicitors shouldn’t become judges, but it is not the sticking plaster for the problem. There are many people who may not be the slightest bit interested in moving on to judicial office,’ she said, adding that those solicitors who had risen the judicial ranks needed to be stronger advocates for a career on the bench. ‘People need to see there is nothing holding us back. The best way of demonstrating that we are making progress is for people to be seen to be achieving it.’

While suggesting it would be a mistake to ‘over focus’ on any particular unrepresented group – because women, BAME, and solicitors ‘all bring something different that strengthens the judiciary’ – Lord Justice Hickinbottom, the second solicitor appointed to the Court of Appeal, said there would be an advantage to looking at solicitor entrants more carefully.

‘More and more judicial work involves case management and dealing with decisions on paper, where a solicitor’s experience and skillset better qualifies them [for the role] than barristers,’ said the former McKenna & Co partner, who added that the mystique of the bench needed to be removed so as to encourage greater numbers of applicants, lest the judiciary continue to face a recruitment crisis.

Seemingly in agreement, Mrs Justice Maura McGowan highlighted the need to make solicitors aspire to the bench at an early stage of their careers. However, she also recognised the difficulty some City lawyers experience trying to obtain leave for fee-paid judicial placements, a necessity for those looking for higher judicial office.

Offering her own innovative solution, McGowan J said: ‘All the big City firms do masses of pro bono work; dedicating time, money, and resources. Direct some of that so your junior people can become recorders, deputy High Court judges, and deputy masters. Give them the chance; it’s three weeks a year.’

Lending his closing remarks to the debate, Lord Neuberger admitted that it would be ‘very difficult’ to fill all this year’s High Court’s vacancies, but argued that the Judicial Appointments Commission should opt not to fill the posts, rather than lower standards.

‘This should be an opportunity, both for people who wouldn’t normally think of applying and for the JAC,’ he commented. ‘If we are short of good enough applicants to reach the necessary standards in the High Court, then we really should be thinking outside the box.’

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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