Diversity’s Role in Safeguarding Human Rights

The Human Rights Act 1998 is a cornerstone of modern British law, ensuring that basic rights and freedoms are protected for all citizens and providing a direct application of these rights within the UK. However, despite the importance of this legislation, there is growing concern that the lack of diversity in the judiciary is undermining its effectiveness.

As one of the world’s most diverse societies, the United Kingdom has a responsibility to ensure that its legal system represents the population it serves. Unfortunately, the country’s judiciary falls far short of this goal. The majority of judges in the UK are white men, with women and ethnic minorities significantly underrepresented. This lack of diversity can have serious consequences for the administration of justice, particularly in cases relating to human rights.

As of April 2022, women make up 35% of all court judges, and Black, Asian, and Minority Ethnic (BAME) individuals constitute 10% of all judges. Although there has been progress in the appointment of female judges in recent years, women remain underrepresented in the judiciary. Ethnic minority representation within the judiciary is also limited, with individuals from minority backgrounds significantly underrepresented compared to the general population. This lack of diversity may result in a disconnect between the judiciary and the diverse society it serves, potentially affecting the fairness and effectiveness of the justice system.

According to Section 63(2) of the Constitutional Reform Act 2005, judges are required to be appointed solely on merit. The Judicial Appointments Commission must consider candidates’ abilities to fulfil the necessary judicial functions. However, selecting judges based solely on merit can result in a lack of diversity in the judiciary. Factors such as historical privilege, systemic biases, and limited opportunities can hinder certain groups, including ethnic minorities and women, from competing equally in the selection process.

In 2012, Professor Alan Peterson suggested that the current system of selecting judges based solely on merit would take more than 100 years to achieve a fully diverse judiciary. Lord Sumption proposed a shorter timeframe of 50 years, but both proposals are quite pessimistic.

The lack of diversity in the judiciary can serve as a barrier for underrepresented groups who may feel that the justice system is not designed to serve their needs. This can lead to a lack of trust in the legal system and deter individuals from seeking redress for human rights violations, leading to underreporting and a lack of accountability. A 2017 report by the Centre for Justice Innovation found that:

“Among those born in the UK, 51% of those from BAME backgrounds believe that the criminal justice system discriminates against particular groups or individuals, compared to 35% of the white population.”

Unconscious biases among judges can lead to judgments that favour certain groups or fail to protect underrepresented groups. A lack of diversity in the judiciary can reinforce these biases because without diverse perspectives, the judiciary may struggle to be impartial and fair.

To address the issues of diversity and inclusion in the judiciary, it is important to take active measures. The Judicial Diversity and Inclusion Strategy 2020–2025 outlines a range of such measures.

The strategy, published in November 2020, sets out key actions that aim to increase diversity in the judiciary over a five-year period. These actions include:

• Providing unconscious bias training to judges and promoting diversity training throughout the judiciary
• Offering support and development opportunities for aspiring judicial candidates from underrepresented groups
• Implementing targeted recruitment initiatives to attract diverse candidates to judicial roles.

Increasing judicial diversity can help build public trust and confidence in the justice system. Baroness Jay commented in the Constitution Committees’ Twenty-Fifth Report on Judicial Appointments that:

“It is vital that the public have confidence in our judiciary. One aspect of ensuring that confidence is a more diverse judiciary that more fully reflects the wider population”

This is just one aspect of ensuring the public’s confidence in the judiciary. When individuals from underrepresented groups see judges who share their experiences and perspectives, they may be more likely to engage with the legal system and advocate for their rights. Seeing judges who come from similar backgrounds or have faced similar challenges can make the legal system feel more accessible and relatable, creating a sense of trust and familiarity.

In addition, a more diverse judiciary can promote greater respect for human rights. When underrepresented individuals believe they can receive a fair hearing and that the legal system is designed to protect their rights, they may be more likely to report human rights violations and hold those responsible accountable because they trust they will be treated fairly.

Although progress has been made, it is important to continue taking proactive measures to create a judicial system that is more inclusive and representative. By doing so, we can strengthen the effectiveness of the Human Rights Act and promote a fairer and more equitable society.

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