Justice in dock: only one in nine judges is a woman
THE body in charge of selecting judges and sheriffs is to carry out a major investigation aimed at ending the virtual monopoly that white men have on the bench.
The Judicial Appointments Board for Scotland is to examine the "barriers" it believes are preventing women and people from ethnic minorities from progressing into senior positions.
Equality campaigners fear the lack of women and non-white sheriffs and judges is damaging public confidence in the legal system. They argue that the predominance of white men in the judiciary is off-putting to some victims, for example women who are raped.
Sir Neil MacIntosh, the chairman of the board, insists women who apply to become sheriffs or judges have as much chance as men. But he told The Scotsman too few were putting themselves forward for the most senior positions.
"When women do apply, they are successful," he said. "But there is a gap between the number of potential women candidates and the number who actually come forward."
He believed "a range of factors" was probably preventing women and non-white people from applying to become a sheriff or judge.
He said: "Is it the hours? Is it perhaps that female candidates are still working their way into the more senior ranks – the 'trickle-down' effect? Is it because of the nature of the jobs, as the bulk of appointments are all-Scotland? In other words, you've got to be willing and prepared to travel across the whole of Scotland when called upon to do so. Does that mean that women with family responsibilities still are disadvantaged by that?
"We need to find out whether there are barriers preventing them from coming forward. The process should be equally accessible to anyone.
"I suspect there are a whole range of factors. The important thing is that we address them."
Sir Neil, who retires in June after six years as chairman of the board, which was set up in 2002, went on: "Some people suggest it's just a matter of time, but I'm not convinced. That assumes the trickle-down effect is the only factor. I don't believe that. I think it's an absolute duty (to promote greater diversity]."
But Sir Neil rejected far more radical moves to improve diversity. "We don't operate quotas," he insisted.
Nicky Kandirikiria, executive director of the equality campaign group Engender, is among those who believe the composition of the judiciary is damaging the justice system.
"You have to consider whether having such a male-dominated judiciary is contributing to the fact we have one of the lowest conviction rates for rape in Western Europe," she said. "We know many women who suffer violence don't go to court because it's so male-dominated. More women judges would help."
Under the Judiciary and Courts (Scotland) Bill, the appointments board will have to give people posts "solely on merit". However, there are some in the legal profession who believe a candidate's suitability for the job should be based partly on whether they will help create a more diverse judiciary.
But one senior figure said such action could result in the wrong judges being appointed.
Lord McCluskey, a retired judge, said: "
The nature of justice does not vary in its character depending on whether the person administering it is male, female, black or white.
"If I go into hospital for brain surgery, I want the very best person for the job. I don't want to be told 'it's your turn to be operated on by someone brought in to create diversity for Bangladeshi immigrants'."
Figures show the judiciary's lack of balance in terms of gender and ethnicity. Only four of the 35 serving judges – or 11 per cent – are women. None are from ethnic minorities. Of the 140 full-time sheriffs, 26 – 19 per cent – are female, and only one, Rajni Swanney, who was appointed nine years ago, is from an ethnic minority. She moved to Scotland from India at the age of two and was brought up in Dundee.
While 36 per cent of the legal profession are female, less than a quarter of applications to be sheriffs or judges are from women.
Osama Saeed, the chairman of the Scottish-Islamic Foundation, said:
" The dispensing of justice requires juries to be of your peers, and the judiciary similarly has to be representative of society.
It has an impact in the trust in the system."
The appointments board has set up a working party to examine the composition of Scotland's legal profession. Led by Professor Alan Paterson, from Strathclyde University, it will include representatives from the Law Society of Scotland and the Faculty of Advocates.
The working party plans to survey about 12,000 solicitors, advocates and sheriffs, seeking their attitudes towards becoming a judge or sheriff. Women, people from ethnic minorities and other minority groups will be "tracked" to find out if, and how, their careers are progressing. Steps will then be taken to overcome any hurdles.
Ros Micklem, of the Equality and Human Rights Commission, said the inquiry should go beyond gender and ethnicity.
"We would expect them to ensure they look at all the potential barriers to participation. How many of our judges or sheriffs are disabled? Why is there such a small percentage of women or people from ethnic minorities? Does the environment in which they work encourage them to be honest about sexual orientation, or faith and belief?"
Bill Aitken, MSP, the Scottish Tories' justice spokesman, said judicial appointments should be made on merit, but he would welcome more women and people from ethnic minorities.
'People should have the opportunity to apply if they want and not feel there is little point'
I WOULD love the opportunity to apply to become a judge. As a career move, it would be a fantastic prospect.
But, as I see it, there are too many deterrents for me, both as a woman and someone from an ethnic minority group.
Applying to become a "floating" sheriff – who is required to work across Scotland – is a "no-no". I have two very small children and a husband who has a very successful and high-profile career. The responsibility to look after the children would fall to me at the end of the day.
This project by the appointments board is a good start, but it will take some years to work through, because of the old mentality of how things are done. There will have to be some genuine incentives in the appointments process and job descriptions to encourage not just people like me, but also those from other minority groups to feel confident about applying to become a judge.
People should be given the opportunity to apply if they want and not feel there is little point because of who they are. If I was white I'd think that too, that just being a mum would mean I wouldn't fit in. But being non-white makes me even further away from what I would imagine the panel are looking for.
However, times are changing – and the quicker the better. The old boy network is still there, but I think it's on the way out.
It might be thought that because I am non-white I won't be able to deal with the type of people coming before me in the dock. But I think the judiciary will appear more in touch with the public if the traditional white, male profile is seen in equal numbers with members of minority groups. It's important that the judiciary visibly reflects the society that it serves. I don't actually think it's the case that judges are out of touch. But the perception is that they don't understand the everyday, "streetwise" life. This is bound to have an impact on confidence in the system.
• Farah Adams is a Blairgowrie-based solicitor who is convener of the Law Society of Scotland's equality and diversity committee.
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