Judicial diversity: Barriers and initiatives

About the study

The Ministry of Justice (MoJ), at the request of the Judicial Diversity Forum (JDF), commissioned the National Centre for Social Research (NatCen) to compile and appraise evidence about judicial diversity in England and Wales. The aim of the review was to better understand:

• The barriers to diversity impacting entry, retention, and progression of under-represented groups within the legal professions and the judiciary.
• Existing initiatives designed to overcome barriers and improve diversity within the legal professions and the judiciary, and their effectiveness.
• The barriers to diversity and initiatives undertaken within specified professions outside of the legal sector (i.e. science, engineering, and medicine) to improve diversity.

Barriers to diversity

• A key theme within the evidence base was that the legal sector appears to favour those who have attended ‘top’ universities, namely Oxbridge and Russell Group institutions. Moreover, the evidence indicated that this preference can disadvantage individuals from lower socio-economic backgrounds and black, Asian and minority ethnic individuals who are more likely to attend ‘newer’ universities with less prestigious reputations.
• A number of barriers faced by women in the legal professions were present within the literature. In particular, the culture of long hours, the expectation of ‘24/7’ availability, and the lack of flexible working were identified as barriers to both the retention of women in the sector and their career progression. The evidence base also indicated that a masculine culture continues to pervade the legal professions, which can create an exclusionary environment for women.
• There was limited information on barriers experienced by disabled lawyers within the evidence base. However, accessibility and disclosure issues were noted as barriers impacting entry, retention, and progression of disabled lawyers across the professions.
• Specific barriers to judicial work identified within the literature included the inflexible working practices and culture of the judiciary, the isolated nature of the work, and reduction in earnings. The perception of a professional hierarchy, whereby barristers are considered to represent the most elite legal professionals, was also raised. While there was limited evidence on barriers associated with sexual orientation and gender identity, some evidence suggested that the lack of openly LGBTQ+ judges may deter some LGBTQ+ lawyers from applying for judicial office.

Initiatives promoting diversity

• The review identified numerous initiatives being undertaken within the legal professions to promote diversity. Initiatives that have been implemented centre on overcoming barriers to diversity related to access to the professions (with a focus on overcoming barriers associated with social mobility), and retention and progression within the legal professions (with a focus on making employees feel recognised, represented, and supported in their workplace).
• Initiatives undertaken by JDF partners that were identified as part of the review included activities to encourage diversity within the legal professions and encouraging lawyers from under-represented groups to apply for judicial appointment. These activities centre on providing potential applicants with greater insight into the role of a judge and how the judicial application process works, as well as preparing candidates with the skills and competencies required for successful appointment to the judiciary.
• At the application and selection stages of judicial appointment, activities to promote diversity are targeted towards eliminating discrimination and ensuring the processes are fair and transparent. The evidence base provided less information about schemes to retain individuals from under-represented groups once they have been appointed to the judiciary, although examples included salaried part-time working and the introduction of flexible working options.

Effectiveness of diversity initiatives

• The evidence obtained indicates that the legal professions and the judiciary are becoming more diverse. However, improvements in diversity appear to be concentrated within the more junior ranks of the professions. Moreover, despite the work being undertaken to improve diversity, at the time of writing, there was a lack of formal evaluation work to assess the efficacy of these initiatives.

Diversity in other professions

• Overall, the findings of the external review indicate that the barriers to entry, retention, and progression of under-represented groups within the science, engineering, and medical professions are broadly similar to those identified within the legal professions and judiciary. Likewise, all professions are taking steps to break down these barriers and improve the diversity of their workforces.

Methodology

The research, undertaken in 2020, involved four components:

• A rapid evidence assessment (REA) to identify peer-reviewed and grey literature to obtain evidence on barriers to diversity within the legal professions and judiciary as well the initiatives being undertaken to promote diversity.
• A ‘landscape’ review of the JDF and JDF partners’ websites to identify relevant information on initiatives and policies promoting diversity, which were in place in 2020.
• A stakeholder consultation to identify hard to reach grey literature and evidence not identified by the REA and landscape review.
• An ‘external review’ to gather information on diversity barriers and initiatives within specified professions outside of the legal sector.

The REA collected evidence identified between 2010 and 2020.

The four research components yielded a total of 75 documents that were retained for review and inclusion in the report.