Does judicial diversity matter and why are questions of equality, diversity and inclusion now widely seen as raising ethical issues for the legal profession to address?






Diversity is a reality formed by people and groups from a wide variety of social and philosophical backgrounds. It is critical to embrace and safeguard variety because by recognizing individuals and groups without prejudice and cultivating an environment in which fairness and mutual respect are inherent, we build a fair society, which is required for a country to function smoothly.

   Diversity in the judiciary matters because it will result in a more representative judiciary with judges of all religions, races, and genders. So, when a conflict comes before a court, a specific type of Judge will do more justice than a non-representative one since the topic will be more familiar and understood by the more representative judiciary. Humans are bound by a judge's decisions. If a judge makes such significant choices in a person’s life, he must sit in an unbiased seat and be an independent person or body.[1]

  The selection process is critical for ensuring that the judiciary is unbiased and fair. When a court is more representative, it is important to make sure that the judges come from a variety of backgrounds. There will also be judges from various religious backgrounds, races, and life experiences. This could also impact their choices. When judges from exclusive classes are selected, they will decide on cases using the experience garnered from their backgrounds. Whenever it occurs a trial of a suspect from an ordinary class or ethnic minority, judges may make unjustified decisions because they do not understand how that everyday life is lived, however, if the case is more typical, they will have more expertise because they come from all cultures and religions, there can be Judges who have seen both ends of the social spectrum. This would make the Judges’ choices fairer and more logical.

   Women also had a tough time being nominated for judicial positions. This is due to gender prejudice. Female judges contribute a unique and collective viewpoint to their work that is impossible to attain in a system that reflects only a portion of the population’s experiences. Despite having the necessary education and experience, many female lawyers have found it difficult to obtain a seat as a judge. It may be claimed that this segment of society is severely underserved, and l feel that a lady judge will do more justice than a male judge in a trial of a defendant woman since the challenges that a woman faces daily will be more understandable to a lady judge. The Principle of Equality under the law is provided through the rule of law. While the English legal System prides itself on its diversity, this should also apply to this procedure. Excluding or seeming to eliminate qualified people is unacceptable. This means that regardless of whether the applicant is a woman, a male, or a member of an ethnic minority if they possess the necessary qualities, they should be chosen. Without prejudice based on gender, colour, or nationality, the best applicant should be chosen.

   Equality, diversity, and inclusion are now widely seen as raising ethical issues for the legal profession to address since a much more diverse judiciary is desired because, without one, the risk of violation of the rights of the underrepresented is enhanced and discrimination, particularly based on gender and race may be implied implicitly. Women and minority ethnic groups are underrepresented in the courts for a variety of reasons, not the least of which is a lack of qualifications. In the press and publications, most colleges have declared that there are more female students than males.

   A lack of diversity[2] in the court can lead to race-based prejudice, especially as it relates to immigration concerns. This was demonstrated in the 1983 case of East African Asians vs the United Kingdom,[3]  in which the spouse of the British residents was denied entry notwithstanding the Commonwealth Immigration Act of 1962, which declared that nationals of Commonwealth nations have guaranteed admission to the United Kingdom. Despite the law, these guys were denied entry into the nation. This trial went against the Act and violated the plaintiffs’ rights because intentionally selecting a group of persons and subjecting them to discriminatory treatment based on race constitutes racial discrimination and torture,[4] which is illegal under Article 3 of the Human Rights Act. It also broke Articles 8 and 14 because denying Commonwealth husbands of British citizens entry into a country when their wives had already been admitted constituted an intrusion into family life and discrimination in violation of both articles. It also broke Article 5 which states that the right to liberty and security of the person is guaranteed and should be protected when that right is violated by a public authority.[5]

   Inadequate representation may also jeopardise the 1975 Sex Discrimination Act, which is supposed to protect both men and women from discrimination based on sex or marriage.[6] The minimal number of female Judges in the higher courts suggests that they are not selected for such posts solely based on their gender. Andrea Madarassy vs Nomura International[7] could have had a better chance of prevailing if the case has been presided over by a female judge. The claimant filed a complaint with an employment tribunal, alleging unjust dismissal, sex discrimination, victimization, and violation of the equal pay Act. After a five-week court hearing the tribunal found in the favour of Namura International, ruling that the corporation still had not discriminated against the claimant. However, according to the Aurura news archive, Ms Madarassy is not the first lady who complained to Nomura about unfair treatment. Maureen Murphy and Anna Francis, according to the Telegraph, filed a sexual harassment lawsuit against the corporation in November 2009. However, the women have lost both lawsuits, and the panels of the judges in both instances have been male. If the cases were considered by a female judge, she would be in a better position to make a more equitable decision since she may have had the same perspective and experiences as the claimant because they are both females. This, however, only shows that when an individual or group of people is judged in a court, whether for tort, contract, or criminal offences, the judgment is influenced by their racial background, gender, socioeconomic status, or any other illegal characteristics that should not be considered when passing a fair judgement.

   The theory for the legal reasoning to help redress the issues is the Realist theory which is concerned with the law's real operation rather than its traditional meanings. It specifies that the law is determined by the judge in court. According to this idea, rules that are not used to address actual circumstances are not laws, but rather lifeless words that only come to life when implemented in reality. According to this idea, the judge’s decision, not the lawmakers', is what constitutes law. As a result, this idea holds that the legislator is the judge, not the legislative body.[8] This theory is based on the common law legal system, in which a past court judgement is regarded as a precedent that may be utilised to resolve future comparable cases. This signifies that the legislative body, not the Judge, is the lawmaker under the civil legal system. The case of Hasan Ali Khoja against the Metropolitan Police[9] demonstrates this point. Mr Khoja, a British citizen of India and of Muslim ancestry, was the chief of the catering department for the Metropolitan Police. He claimed his rights were violated when he notified his employers that he would be unable to cook pig-containing food due to his religious beliefs, but they insisted that he produce pork sausages and bacon. He sued the Metropolitan Police Department in court, alleging religious and racial discrimination, but he lost the case. The judge did not rule in the claimant’s favour. This demonstrates how underrepresented minorities are in the legal system. His lawyer later claimed that the court’s decision did not uphold the claimant’s freedom of expression, thought, conscience, and religion because he has the right to refuse to cook pork, and his employers were required by the law to accommodate his choice, but they did not and were not punished for doing so. So the Realist theory can help to redress the issues which are identified. If the Judges who heard the case had the same background as the defendant, whether they were of any religion the outcome may have been different since they would have understood the claimant’s position better. So if the Judges who heard the case had the same background as the defendant, whether they were Muslim or Indian, the outcome may have been different since they would have understood the claimant’s position better.

To conclude, diversity in the judiciary matters because it will result in a more representative judiciary with judges of all religions, races, and genders. So, when a conflict comes before a court, a specific type of Judge will do more justice than a non-representative one since the topic will be more familiar and understood by the more representative judiciary. Equality, diversity, and inclusion are now widely seen as raising ethical issues for the legal profession to address since a much more diverse judiciary is desired because, without one, the risk of violation of the rights of the underrepresented is enhanced and discrimination, particularly based on gender and race may be implied implicitly. The Realist theory can help to redress the issues which are identified. If the Judges who heard the case had the same background as the defendant, whether they were of any religion the outcome may have been different since they would have understood the claimant’s position better.  l agree that the court should be diverse, but this should not be a problem if the right individuals are nominated, who are highly qualified, experienced, and impartial, regardless of origin. It should represent the concept that everyone should be allowed to take part in the tiny and huge decisions that define our society. Just because the judiciary is representational does not guarantee that its rulings are right and impartial. Regardless of whether the court is representative or not, the most essential issue is that the right individuals are nominated as judges.

 

 

 


[1] All Answers ltd, 'The Diversity of the Judiciary' (Lawteacher.net, May 2022) <https://www.lawteacher.net/free-law-essays/constitutional-law/the-diversity-of-the-judiciary-constitutional-law-essay.php?vref=1> accessed 7 May 2022.

 

[2] All Answers ltd, 'More Diverse Judiciary' (Lawteacher.net, May 2022) <https://www.lawteacher.net/free-law-essays/judicial-law/more-diverse-judiciary.php?vref=1> accessed 8 May 2022.

[3] East African Asians vs United Kingdom [1973]3 EHRR 76.

[4] Human Rights Act (HRA).

[5] European Convention on Human Rights (ECHR).

[6] Sex Discrimination Act 1973 (SDA 1973).

[7] Madarassy vs Nomura International plc [2007] EWCA Civ 33, CA.

[8] Tesfaye Abate, ‘MAJOR THEORIES OF LAW', (Abyssinialaw.net, 08 April 2012)

<https://www.abyssinialaw.com/study-on-line/item/479-major-theories-of-law> accessed 5 May 2022.

[9] Tom Harper, ‘Muslim Police chief defeated in ‘bacon roll’ tribunal faces £75,000 legal bill, (dailymail.net, 20 Dec 2009)

< https://www.dailymail.co.uk/news/article-1237184/Muslim-police-chef-defeated-bacon-roll-tribunal-faces-75-000-legal-bill.html> accessed 5 May 2022.