Crime and Courts Act 2013: Consultation on the application of the equal merit provision

Overview

The Judicial Appointments Commission (JAC) is interested in views on potential approaches to the application of the provisions in Part 2 of Schedule 13 to the Crime and Courts Act 2013 (CCA) relating to diversity considerations where candidates for judicial office are of equal merit. The provisions in the CCA clarify that the JAC’s duty to make selections ‘solely on merit’ (S63(2) Constitutional Reform Act 2005) does not prevent it from selecting one candidate over another for the purpose of increasing judicial diversity where there are two candidates of equal merit.

A more diverse judiciary and the JAC’s diversity duty

The JAC has a duty under the Constitutional Reform Act 2005 (CRA), to have regard to the need to encourage diversity in the range of persons available for selection. In addition, the Equality Act 2010 applied a general duty to public authorities to:

• eliminate unlawful discrimination, harassment and victimisation;
• advance equality of opportunity between different groups; and
• foster good relations between different groups.
   

The JAC has a three-pronged approach to diversity, placing it at the heart of everything it does:

• fair and non-discriminatory selection processes;
• advertising and outreach; and
• working with others to break down barriers.
   

10-year-trends research on judicial appointments since 1998 showed that the number of women applying and being recommended has risen across most levels of the judiciary up to, and including, High Court.  Appointments of Black, Asian and Minority Ethnic (BAME) candidates are also increasing but more needs to be done especially at more senior levels.

JAC has selected 1,040 women (38%) and 267 (10%) BAME candidates out of 2,743 selections for legal and non-legal roles from April 2006 to December 2012. However women still only constitute 28.8% of the judiciary, and only 5.8% have a BAME background.

The Advisory Panel on Judicial Diversity was established in 2009 “to identify the barriers to progress on judicial diversity and to make recommendations to the Lord Chancellor on how to make speedier and sustained progress to a more diverse judiciary at every level and in all courts in England and Wales.”  In 2010 the Panel reported its findings and put forward 53 recommendations for key actions which it considered necessary to increase diversity within the judiciary.

The Judicial Diversity Taskforce, formed to oversee implementation of the recommendations, reported in September 2012 that twenty had been implemented and the remainder were underway . Further progress made on the recommendations will be published in the annual progress report scheduled for publication in autumn 2013. The CCA implements several of the recommendations, for which primary legislation was necessary. One of these was Recommendation 21, which stated that the JAC should make use of the positive action or “equal merit” provision in the (then) Equality Bill 2010 where the merits of candidates are essentially indistinguishable.

The Crime and Courts Act provisions

The CCA received Royal Assent on 25 April 2013. The CCA implements a number of recommendations of the Lord Chancellor’s Advisory Panel on Judicial Diversity, and was introduced following a Ministry of Justice consultation on Appointments and Diversity: A Judiciary for the 21st Century  (May 2012). That consultation was informed by a House of Lords Constitution Committee report on Judicial Appointments.

Schedule 13, Part 2, of the CCA provides for measures to promote consideration of diversity in the appointments process. For one of those measures, to be known as the “equal merit” provision, Paragraph 9 clarifies that making selections ‘solely on merit’ does not prevent a candidate being chosen on the basis of improving diversity when there are two candidates of equal merit.

Specifically the Act amends section 63 of the CRA as follows:

(3) After subsection (3) insert—

“(4)      Neither “solely” in subsection (2), nor Part 5 of the Equality Act 2010 (public appointments etc), prevents the selecting body, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within—

(a) the group of persons who hold offices for which there is selection under this Part, or

(b) a sub-group of that group.”

For information about JAC.

Information about JAC selection processes.