Do We Need Judges?

- Welcome. Let me start with three quotes. Firstly, "There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can, that means chaos, then tyranny." That was Mr. Justice Frankfurter in his concurring judgment in the United States against the United Mine Workers. This quote was in the context of a case where the Supreme Court upheld a restraining order that prohibited mine workers from striking. Secondly, "The law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." Anatole France, Nobel-winning French writer. And finally, the third quote in this trilogy is from Nelson Mandela's speech at his famous or infamous trial."Why is it in this courtroom I face a white magistrate, I'm confronted by a white prosecutor, escorted into the dock by a white orderly. Can anyone honestly and seriously suggest that in this type of atmosphere, the scales of justice are evenly balanced? I detest most violently a setup that surrounds me here. It makes me feel I am a Black man in a white man's court." In the last lecture I asked whether we need juries. In this lecture I'm looking at the related question, do we need judges? In many ways, this is a much more fundamental question. Plenty of legal systems have no juries, but every legal system in the world has judges. An independent judiciary is usually seen as the sine qua non, an indispensable and essential condition of a liberal democracy. My own profession, the practice of law would be impossible without judges. So far more than the last lecture, this lecture requires us to examine the fundamentals of the legal system. Let's start by articulating a few arguments in favor of judges. If we were looking to explain why we needed judges, what would we say? First, I suppose we would say judges are essential to the rule of law. In modern society, we need to have legal certainty. We need a body of law that is administered consistently and impartially. We need to know, for instance, what conduct is criminal, and when it is not criminal, so that we can adapt our behavior accordingly. We need to know when we're accused of a crime, that we will have a fair trial, and that the law will be applied impartially to us. In order for us to make financial decisions, we need to know that our contracts will be enforced, and our property rights protected. And if our rights are violated, we need to know that we can seek justice in the courts. We need to know that the law will be applied consistently, and that the application of law won't be influenced by political or personal favor. In order to achieve this, we need an impartial body of decision-makers, who are not beholden to government, and who apply a consistent body of rules guided by precedent. Second, we would say, would we not? Judges provide an important check on the power of the executive, and a safeguard for the rights of minorities. We might say that this is particularly important in a country such as the UK, where a government with a solid majority in the House of Commons has very few other restraints on its power. On the other hand, what would we say if we wanted to criticize the institution of the judiciary? First, we'd say that the judiciary is an unrepresented body of primarily men of society, that is disproportionately drawn from privileged groups. Judges from privileged backgrounds frequently sit in judgment on marginalized people, whose lives and experiences they do not understand at all. Second, we might say, judges aren't democratically accountable, and that vesting so much power in the judiciary is undemocratic. Third, we may say that judges are trained in law, and that an education in law doesn't necessarily equip them to make all the decisions that our legal system calls upon them to make. We might sum up by asking, why we entrust judges with so much power over people's lives. So come with me. Let's dive into these issues in more detail. First, we're going to ask what judges do, and how well they do it, second, we're going to look at how judges are appointed, to whom they are accountable, and whether they're representative of society, and third, we're going to ask whether we need judges, and look at what the alternatives are, and ask what role judges might make or play in a fairer society. What do judges do, and how well do they do it? In the common law world, professional judges are drawn from the ranks of professional lawyers. Their professional experience, therefore, is twofold. First, they are experts in law, secondly, they are experts in advocacy, the art of persuasion. However, this expertise does not necessarily equip them, or mean that they are qualified to perform all the tasks that our legal system requires them to perform. Let's look at a few of these. First, a major role judges make is as finders of fact. In the vast majority of judicial proceedings in England and Wales, which do not have a jury, in most cases, the judge is the trier of the fact. They need to assess the credibility of witnesses, decide between competing versions of events, and evaluate expert evidence. But judges with their training in law are not particularly well-equipped to do this. As I highlighted in a previous lecture, judges often rely on fallacious assumptions when assessing the credibility of witnesses. Many of these assumptions were instilled in them during their training as trial advocates, when they learned how to cross-examine effectively. For example, lawyers and judges often believe that internal, inconsistent accounts is more likely to be a fabrication. Lawyers will often try to elicit inconsistencies in a witness's story in an attempt to discredit them, but we know from decades of psychological research that human memory is often poor, that truthful accounts are just as inconsistent as false ones, and that mental health conditions, such as PTSD and depression can impair a person's memory and recall. Similarly, in the past, it was often thought that a trial judge's ability to see and hear a witness-given evidence, observe their demeanor, was an important aspect of assessing credibility. But we know that reliance on demeanor can be very misleading because a person's demeanor can be affected by their cultural background, and by conditions such as autism and PTSD, among other factors. Legal education doesn't include any training in psychology or mental health. In short, judges don't have any special ability to distinguish between truth and falsehood, but they often think they do. Similarly, judges can and do misunderstand scientific issues and sometimes this has dire consequences. An infamous example occurred when the pediatrician saw Roy Meadows testified in the 1999 murder trial of Sally Clark, and said that"The probability of two children dying from sudden infant death syndrome, SIDS, in the same family was one in 73 million." This statistic was fallacious in multiple respects. First, Meadow's statistic was based on a false assumption that the probability of dying from SIDS was uncorrelated between children in the same family, when it was not. Second, it also fell to a statistical fallacy, known as the prosecutor's fallacy, as Dr. Ben Goldacre explained,"Two babies in one family have died. This in itself is very rare. Once this rare event has occurred, the jury needs to weigh up two competing explanations, double SIDS or double murder. Under normal circumstances before any babies have died, double SIDS is very unlikely, and so is double murder. But now that the rare event of two babies dying in one family has occurred, the two explanations are suddenly both very likely. If we really wanted to play statistics, we would need to know which is relatively more rare, double SIDS or double murder." Goldacre goes on to point out that the criminal division of the court of appeal also misunderstood the significance of the figures. He said, "Not only was this crucial nuance missed at the time, it was also clearly missed in the appeal. They suggested that instead of one in 73 million, Meadows should have said, 'Very rare.'" Another factor that can affect fact finding is that like everyone, judges have biases, and these biases can affect how they view witnesses' evidence, or how they view the merits of a case. Now, my colleague, Keir Monteith, King's Council, recently co-authored a report with academics at the University of Manchester, Racial Bias and the Bench, which surveyed a large group of legal professionals about their experiences of judicial racial bias. Many respondents gave accounts of bias effecting judicial decision-making. For instance, one respondent said,"I represented a client who was a Black British youth. No previous convictions. The trial was in the magistrate's court. The bench were two posh, old, white ladies. I knew from the way that they looked at him, and they looked at the case, as though it was all an unpleasant smell, that they would convict him from the start. We ran a good defense providing as much information and evidence as we could. The prosecution barely challenged our position, and the bench convicted on obscure reasoning. It seemed to me to be a decision infused with racial bias." Another said, "It's difficult to set out specific instances as they're quite common. A significant minority of tribunal judges treat the evidence of appellants and witnesses from other cultures, countries, and backgrounds with skepticism." A related problem is an unjustified judicial faith in the police. For example, one respondent said,"While practicing in the magistrate's court, I never once saw a tribunal seriously entertained the idea that the police might have been acting in a racist manner, or even that racialized defendants had perceived the police to have been acting in a racist way towards them, which is often a critical part of the defense or the defendant's case." These examples, a court of my own experience as a lawyer, race can often have a big impact on how judges treat a client or witnesses, and how seriously they take the client's or witnesses' evidence. So can other factors such as your client's class, their accent, how they dress or behave in court. Like all humans, judges take cognitive shortcuts when making decisions, and often those cognitive shortcuts reflect race, class, and cultural bias. So judges are not necessarily well-equipped to make findings of fact, they aren't experts, and they often base their decisions on false assumptions. Second, another major role of judges in our system is to make moral judgments. The most obvious example of this is when a judge passes sentence for a criminal offense. In English legal system, although considerations of prevention and deterrents are taken into account, the core of sentencing this punitive. Our sentencing policy owes far more to the concept of moral desert than it does to utilitarian ethics. Judges take into account the perceived culpability of the defendant to given you any factors that aggravate or mitigate their moral wrongdoing. Even if the defendant poses no risk to the public or no risk of re-offending, this doesn't preclude them being imprisoned, if the judge considers the crime sufficiently serious, and sometimes judges use moralizing language from the bench condemning a defendant using terms such as "wicked" or "depraved." In effect, the judge is empowered to make moral judgments on behalf of society to decide what another human being has done wrong and what they deserve. While the discretion of judges has been fettered in recent years by sentencing guidelines which seek to achieve some consistency in sentencing, these guidelines typically reinforce an approach in which culpability is at the heart of sentencing. We might well ask why we entrust judges with this power. After all, an education in law doesn't imbue a person with the wisdom of Solomon, and judges are disproportionately drawn from privileged backgrounds, and are much less likely to have experienced hardship than are the defendants on whom they sit in judgment. From a moral perspective, for example, we might ask what a judge earning a six-figure-salary has to sit in judgment on a homeless person for stealing bread. Or to take a real example that occurred in 2018, we might ask how a judge whose family members had a financial interest in the fracking industry can send anti-fracking protestors to prison. And again, we know that bias plays a role, in numerous previous lectures I've talked about the Lanni review findings, that there were large race disparities in sentencing, especially for drug offenses, and that ain't an opinion that's counting. These experiences or the experiences of the respondents of the Monteith Survey, The Manchester University Survey were consistent with this. For example, one respondent said,"I've witnessed firsthand sentencing disparity between Black and white defendants. The Black defendant with the least serious offense received an immediate custodial sentence, while the white defendant received a fine, Ban E." I've personally represented those defendants one after the other in the same court, before the same judge magistrate. So we might well ask,"Why do we entrust judges with the power to issue collective moral condemnations from the bench on behalf of society?" Third and finally, judges make political judgments. Judges, of course, are supposed to avoid political partisanship, but it's inevitable that sometimes judges decide cases with profound political implications. In the United States where judges have brought powers to strike down legislation as unconstitutional, this has been a topic of debate for generations. Here in the UK, we have no codified constitution, and parliament is sovereign. The judiciary historically posed less of a threat to the power of politicians, but since the pass of the Human Rights Act 1998, judicial decision-making has increasingly provoked political controversy. When judges make decisions which are politically controversial, unthought the will of the executive, it's often decried as "judicial activism" to a significant extent, however, this is inherent to the protection of fundamental rights. Most human rights instruments define their rights in fairly broad terms, the right to life, the right to liberty, the right to a fair trial, the right to private and family life, and so on. The practical application of these rights is inevitably left to judicial interpretation. Judges have to make evaluative judgements about how far a right extends, and how it should be balanced against other priorities. What's interesting about the debate over judicial activism is that its political contours can change radically over time depending on the political orientation of the government and the political tenor of judicial decisions. Simply put, most people like judicial activism when it accords with their own political views, and dislike it when it does not. For example, in the Lochner era in the early 20th century America, when the Supreme Court effectively imposed right-wing economic policies on bi-judicial fiat, Socialists were among the strongest critics of judicial activism, whereas by the late 20th century, it was the Conservatives who were vocally criticizing judicial activism being agreed by decisions, such as Roe versus Wade, which recognized the constitutional right to abortion. And today, as the US Supreme Court has swung decidedly to the right again, we are once again seeing criticisms of the judiciary coming from the left. Similarly, here in the UK, the debate has to be viewed in its political context. Much of the hard-fought litigation under our Human Rights Act has been concerned with protecting the rights of marginalized groups, such as immigrants, asylum seekers, prisoners, benefit claimants, and homeless people. Sometimes judicial decisions have expanded the frontiers of human rights protection, and thwarted government policy. One of the earliest and most dramatic examples was the 2004 case of A, in which the House of Lords held that the indefinite tension of foreign national terror suspects without trial at Belmarsh Prison violated the European Convention on Human Rights. Against this backdrop, most criticisms of the Human Rights Act tended to come from the political right. Some decisions attracted particular ire, such as the European Courts of human rights decision in case of Hirst, which held that the UK's blanket ban on prisoner voting violated the convention. The Hirst decision is virtually unique in the annals of British human rights litigation, in that successive governments have simply refused to act on it, and prisoners continue to be banned from voting today. But it's important to note that if the political contours of the UK changed, the debate over judicial activism would change too. For instance, if a Socialist government came to power and nationalized all the assets of the rich without compensation, we could expect the aggrieved property owners to challenge it on the Article 1 of the first protocol of the European Convention. In those scenarios, it would be likely that to be the left decrying judicial activism and the right supporting it. It's also important to note that the courts don't always protect the rights of minorities against an overbearing government. Sometimes they throw minorities under the bus, for example, in the 2005 House of Lord's decision in the case of N, in which they held that it did not breach the European Convention to remove a woman with AIDS to a country where she would die an early and painful death from the lack of access to lifesaving medication. The European Court of Human Rights reached the same conclusion. This decision represented the law for over a decade, until the European Court revisited its approach in the 2016 case of Papa Shively, and our Supreme Court decided in the 2020 case of AM Zimbabwe, to follow Papa Shively and overrule the case of N. Critics of judicial activism often use the word "unelected" when describing the role of judges, so in the next section of the lecture, we're going to take a look at how judges are appointed, to whom they are accountable, and how representative they are of the general public. So how are judges appointed? How judges should be appointed is often one of the most contentious issues in constitutional law around the world. In some countries, the executive and or the legislature play decisive role in appointing judges. For example, as most people know, federal judges in the United States are nominated by the President and confirmed by the Senate. An even more striking feature of the American system is that many state court judges are elected. Conversely, in other countries, judges are nominated by an independent commission, which is designed to be insulated from politics. For example, many Commonwealth countries have a constitutional body known as the Judicial Service Commission, which advises the head of state on the appointment of judges. The composition of the judicial service commission varies considerably from country to country, but they usually include some judges, and some non-judicial members. Some include members of the legislature, while others do not. At the most extreme end, there are some countries, where the appointment process is wholly controlled by existing judges. For example, this is the case in which the Collegium system for appointment to the Supreme Court in India. Each of these options has advantages and disadvantages, where judges are appointed by elected politicians. This ensures some level of democratic involvement in the process, but it also increases the likelihood of party political considerations, or play a role, and decisions ... Play a role in the appointment of the judiciary, and that some judicial decisions will be affected by political considerations. Similarly, where judges are elected, they are democratically accountable, but this also increases the risk that they will seek to make popular decisions instead of correct ones, and that they will be beholden to the private interests of whoever or whatever bank roll their election campaign. On the other hand, where the appointment process is independent and dominated by existing judges, this reduces partisan influence, but such systems can also be criticized on the ground that it makes the judiciary into a self-selecting elite, which is not democratically accountable to the public. So how does it work here in England and Wales? In England and Wales, there were radical changes to the judicial appointments in the early 2000s. Before then, the key figure in the judicial appointments was the Lord Chancellor. The Lord Chancellor occupied an anonymous position, he was simultaneously a politically-appointed cabinet Minister, the Head of the judiciary, and the Speaker of the House of Lords. Most judges were appointed by the Queen on the advice of the Prime Minister, but the Prime Minister, in turn, would consult with the Lord Chancellor. There was no formal recruitment process. The process was often described as a tap on the shoulder. Although this might sound a politically partisan process, this was mitigated to some degree by the fact that the Lord Chancellor would always consult senior judges on judicial appointments, and that the judges' views generally carried significant weight. But this came with problems of its own. Most judges were drawn from wealthy backgrounds, had attended fee-paying schools, were white, and male. There was inevitably a temptation to appoint judges that fit the same mold as existing judges. How far did political considerations influence judicial appointments in practice? Well, in Victorian and Edwardian times, the answer was quite a lot. For example, Lord Halsbury, who was the Conservative Lord Chancellor for three periods between 1885 to 1905, was well-known for appointing Conservative politicians, and even his own relatives to judicial roles, regardless of merit. In a 2009 lecture, Lord Justice Tolson, as he then was said that "Before World War I, judicial appointments were highly political, and frequently made with scant regard for whether the person showed any sign of having judicial qualities." Although he acknowledges that there was a marked improvement between World Wars I and II. At the same time, there was also a convention that the Attorney General of the government, that's the government's politically appointed Chief Law Officer, would be offered the Office of Lord Chief Justice when it fell vacant. Lord Tolson highlights that"This convention led to the appointment of a Lord Hewitt, who was the Lord Chief Justice between 1922 and 1940" and who was"widely regarded as the worst Lord Chief Justice of the 20th century." His poor performance led to the end of the Convention, more positively, however, Lord Tolson says that"By the second half the 20th century, there were few instances where political factors were suspected of influence in judicial appointments, the judicial appointments process, and certainly none in the last 30 years. In recent decades, all Lord Chancellors were scrupulous in seeing that the judicial appointment process was strictly apolitical." Chris Hanretty of University of East Anglia has carried out a statistical analysis of all judicial appointments in England between 1880 and 2005. Among the factors he looked at, was political affiliation, and he found that there was no advantage to having the same political affiliation as the incumbent Lord Chancellor, but that judges were more likely to be promoted if they had been appointed by the government of the same party. So by the end of the 20th century, there was no longer a strong perception of political partisanship influencing the judicial appointment process. However, there was still undeniable difficulties with the process. The tap on the shoulder system was the opposite of an open and transparent recruitment process, as Lord Tolson says. There was a double complaint, that the selection was made in the image of the selectors, resulting in an over-narrow judiciary and that the poll process was hidden from the public's view. Under New Labor, there was a significant change. By 2001, the Commission for Judicial Appointments was created, although this was an oversight body, and was not directly responsible for recruiting judges. However, the Constitutional Reform Act of 2005 brought about a sea change. The Judicials' Appointment Commission, an independent statutory body was established. For the first time, judges were selected on the basis of open competition, and had to apply for their jobs. The principle that judges should be selected on merit was enshrined in statute. The Commission consists of a mixture of judicial members, lawyers, and lay members, so it's not completely controlled by the existing judiciary, but they play a major role in it. The 2005 Act also made a lot of other changes to our judicial system. The role of the Lord Chancellor was radically reformed, so that Lord Chancellor was no longer the Head of the Judiciary, or Speaker of the House of Lords. Today, the Lord Chancellor, who is always also the Secretary of State for Justice, is normally an MP, rather than a PM, and does not even have to be a lawyer. And the act replaced the Appellate Committee of the House of Lords with the UK's Supreme Court. The Lord Chancellor now plays a much less role in judicial appointments than previously, judges of lower courts and tribunals are appointed on the recommendation of the commission, and until 2014, the Lord Chancellor was still formally the appointing authority for judges of lower courts and tribunals, although in practice they simply rubber stamp the candidate selected by the commission. The Crime and Courts Act of 2013 removed this residual role, so that the Lord Chief Justice, and the senior president of the tribunals are now the appointing authorities for the lower courts and tribunals, respectively. Although the Lord Chancellor continues to be involved in the appointment of high judiciary, their discretion is very limited. High Court judges are appointed on recommendation of the Commission, the most senior judges, including the Lord Chief Justice, and the Master of the roles, the heads of the division, and the Lord Justices of Appeal are appointed on the recommendation of selection panels appointed by the commission. The Lord Chancellor does have power to reject the Commission's recommendations or request a reconsideration, but these options can only be exercised twice in relation to a given vacancy. This removal of ministerial influence from the process has not been uncontroversial. In 2009, Jack Straw, then Lord Chancellor in the Labor Government requested reconsideration of the Commission's recommendation to appoint Sir Nicholas Wall as President of the Family Division. Sir Nicholas had previously been critical of the government's reform to family justice system. When the Commission recommended Sir Nicholas for a second time, Straw had little choice but to acquiesce. In analyzing this case, Professor Graham Gee argue that the Lord Chancellor should have a greater role in appointments. He says "Ministerial involvement can inject a substantial degree of democratic legitimacy, and accountability into the selection regime, and by extension into the judiciary as an institution of government." He argues that instead of having to accept or reject a single name, the Lord Chancellor should be able to choose from a short list between three to five names prepared by the Commission. We can see, then, that the question of how judges should be appointed is highly controversial. If the selection process is dominated by the existing judiciary, this may produce a more independent judiciary, but some would argue that it produces a judiciary wholly unaccountable to the public. Conversely, if the selection process has a significant degree of political involvement, this might be said to make the process more democratic, but it might also make the process more partisan, and reduce its independence from the government of the day. To whom are judges accountable? Now we've seen how judges are appointed, and why it's controversial, we now need to look at why and how judges are held accountable in England and Wales. Judges are supposed to enjoy judicial independence, and a major component of that independence is that it's difficult to remove them. For the senior judiciary at a High Court level and above, it's virtually impossible to remove a judge from office against their will. They can only be removed by the King, or an address by both Houses of Parliament. No English or Welsh judge has ever been removed by this process. The only time it was ever used was when Sir Jonah Barrington and Judge of the Irish High Court Admiralty was removed in 1830 for corruption. This does not mean that they are completely unaccountable. A judge who loses the confidence of their colleagues may be pressured to resign. For example, in 1998, Mr. Justice Jeremiah Harmon was harshly criticized by the Court of Appeal for failing to deliver judgment in a civil case for 20 months. Harmon was already a controversial character, who was frequently accused of rudeness and discourtesy to barristers who appeared before him, particularly women, and was also criticized for allegedly kicking a taxi driver in 1992 under the mistaken apprehension that he was a press photographer. After being criticized by the Court of Appeal, Harmon resigned, but he had refused to resign, forgive me, but had he refused to resign, it would've been very difficult for his colleagues to get rid of him. On the other hand, judges below the level of High Court can be removed by the Lord Chancellor with the concurrence of the Lord Chief Justice. There was also power to suspend them from office, so they have significantly less security of tenure. Like judicial appointments, judicial tenure and accountability is an intensely controversial subject. Traditionally in liberal democracies, security of tenure for judges has been viewed as an important safeguard against political interference, with their decision in fact, total insecurity of tenure is likely to breach the requirement of Article 6 of the European Convention of Human Rights, that cases be tried by an independent and impartial tribunal. On the other hand, a critic of the judiciary might well ask whether the senior judiciary given their virtual absolute security of tenure are accountable to anyone but themselves. That said, security of tenure doesn't mean judges can do whatever they like, judicial conduct complaints are dealt with by the Judicial Conduct Investigations Office, and in fact, there are times that the JCIO has been accused of overreach. For example, Peter Herbert, a well-known Black lawyer who sat as a part-time recorder and tribunal judge had a complaint of misconduct made against him in relation to his comments at a rally in April, 2015. At the rally, Herbert spoke out against racism in the judiciary. Yeah, you heard me right. He spoke out against racism in the judiciary. Eventually in 2017, the JCIO panel held that Herbert's speech was misconduct, and was likely to undermine public confidence in the judiciary. The panel held that he should be given formal advice. The panel also held that he should receive an apology for the fact that pressure had been put on him to refrain voluntarily from sitting as a judge, which should not have happened. Herbert later brought a race discrimination claim in the Employment Tribunal against the Lord Chancellor, and the Lord Chief Justice, which in 2021 was settled without an admission of liability. That brings us onto another important question. How representative is the judiciary of society? Traditionally, as I've said, the English and Welsh judiciary has been dominated by white men who attend fee-paying in schools in Oxbridge. This has been a subject of much discussion in recent years. I've covered judicial diversity in many of my previous lectures, so I'm only going to touch upon it briefly here. In England and Wales, people minoritized ethnic constitute 10% of all judges in 2022, which was three percentage points higher than in 2014. However, this representation was not evenly distributed across the judiciary. In the senior judiciary at High Court level and above, only 5% of judges belong to minoritized ethnic groups. Conversely, 12% of tribunal judges belong to minoritized ethnic groups. For comparison, minoritized ethnic people constitute 16% of barristers and 18% of solicitors, though minoritized ethnic groups representation fell increasingly with experience and seniority. Women make up 35% of all court judges, and 52% of all tribunal judges. Based on these statistics, you might think that judicial diversity in the lower levels of the judiciary isn't too bad, but the statistics also show a huge disparity in the appointment process. In 2021, 2022, ethnic minority candidates accounted for 23% of all applications for judicial posts, but only 11% of those were recommended for appointment. And these statistics don't tell the whole story. We don't have detailed statistics about social and economic background of current judges for instance, while the 2022 statistics contain a breakdown of how many of those recommended for appointment in 2021, 2022 attended a state school, and were the first in their family to attend university, they do not include this information in respect of judges currently in post. This is very important. A Black man from a wealthy background who went to Eaton won't have the same life experiences as a Black man who grew up on a council estate, and attended the state school. Another important consideration is that isn't reflected in these statistics is that the professional experience of appointees, and how this has shaped their attitudes. Although these statistics tell us how many solicitors and barristers are appointed, they don't tell us what kind of law they practice, and on whose side. The outlook of a legal aid lawyer, who is made a career of representing the oppressed is often very different from that of a commercial lawyer, who represents large companies or treasury council, who represents the government. My experience is that most senior judicial appointments are given to the latter group. High Court judges, High Court and above disproportionately go to these appointments, disproportionately go to lawyers, who have spent their careers representing the powerful rather than the powerless. And some other groups are woefully underrepresented. For example, transgender people whose lives are profoundly impacted by litigation amidst the current climate of anti-trans hostility, have little representation in the judiciary. So we don't have a judiciary that's representative of the public, and we've looked at many of the common criticisms of judges in this lecture, as well as some of the common counter-arguments. But what are the alternatives? In the next and final section of this lecture, I want to look at whether we truly need judges, and what the alternatives are, and what role judges might play in a fairer, and more equal society. So let's consider the alternatives. First of all, do we truly need judges? I'm going to lay my cards on the table here, and I'm going to say the answer is probably yes. It would be virtually impossible to maintain the rule of law and legal certainty without an independent judiciary. And at its best, a judiciary genuinely does serve as an important check on the power of the executive and the legislature, and as a safeguard for minority rights. But that does not mean that the role of the judiciary should remain the same as it is now. First of all, we need a much more diverse judiciary, and I just don't mean we need more women and minoritized ethnic groups in the judiciary. Although we do. We also need a judiciary that's drawn from a much wider range of backgrounds. We need fewer judges from wealthier backgrounds, fewer judges who attend fee-paying schools, and more judges from non-traditional backgrounds. We need judges who grew up on council estates, judges who are refugees, migrants. We need judges who are transgender, judges who belong to unrepresented racial groups. And we need judges with a more diverse range of professional experience. We need fewer commercial lawyers, and treasury council on the bench. We need more legal aid lawyers. We need to abandon that lazy assumption that the ideal High Court judge is a barrister from a prestigious London set who got the first from Oxbridge. Second, unlike Professor Gee, I'm not in favor expanding ministerial influence in the judicial appointment's process. However, I would be in favor of reforming the statutory framework for judicial appointments. One recommendation of the Keir Monteith Manchester University report was to overhaul the process of judicial appointments. The authors agree with the Law Society President Stephanie Boyce, that the statutory consultation process in which existing judges are asked for their views on appointments should be abolished. I agree with that, and I think we need to go further. I think diversity should be explicitly enshrined in statute as a goal of judicial appointments, alongside merit, and should be regarded as equally important. In short, we need affirmative action in judicial appointments process. This shouldn't just take into account race and gender, but should also take into account characteristics such as socioeconomic background, refugee, migrant background, sexual orientation, and transgender status. Some people take strong exception to this suggestion. They will argue that judicial appointments should be based purely on merit and should not take into account whether a person belongs to a marginalized group or not. However, that approach ignores the reality of institutional bias in our society, when it comes to judicial appointment, merit is a subjective concept, and all too often in the law and other professions, selection panels will see most merit in candidates who fit an existing profile, rather than candidates who are different. We need to take radical action to change the default image of what a judge looks like. As the Keir Monteith report says,"We need to create a critical mass of diverse judges, reflective of society rather than occasional and isolated appointments." Third, we need diverse legal and judicial training. The Manchester University report argues for compulsory and ongoing, high-quality racial bias and anti-racist training, for example, for all judges and key workers in the justice system. I agree with that. I also think we need to incorporate other kinds of training. For example, understanding of mental health, trauma, and the limitations of human memory should be a core part of every lawyer's and judge's skillset. We should stop teaching young barristers that inconsistencies in witnesses' accounts are evidence of fabrication, legal and advocacy training needs to change to reflect the current state of scientific knowledge, and how witnesses' testimony actually functions. And it would be good if lawyers and judges got some basic education in statistic, scientific literacy, and how to read and understand scientific papers. Throughout their careers, lawyers and judges will need to deal with a range of complex issues, which are outside their experience or knowledge, yet legal education focuses only on a narrow range of skills and doesn't prepare lawyers for the challenges they will encounter both as lawyers and judges. Fourth, we need to reconsider some of the things we expect judges to do. In particular, we need reform on criminal sentencing, and dissenter punishment in the criminal justice system, that will require many changes in judicial culture, and the perceived purpose of sentencing. So let me take some questions.(audience applause)- Thank you, so I'm going to take a couple of questions from the enormous number of people who are watching online, and the first one's quite an interesting one. You've argued that judges are privileged, many have the wrong skills and the quota system would struggle with the lack of diversity at the bar. So should we follow the German system, and make being a judge a career starting from graduation, where you are properly trained in the skills that you require?- I think there's something to be said for a combination. I do think there's some merit in judges having some experience of life as a lawyer. So I wouldn't throw that out entirely, but I see no reason why at some stage we, you know, you couldn't have a system whereby, you know, judges decide,"Okay, at this point I'm going to make it a career", and there is a skillset training, you know, however you decide to do it, so it becomes part of that training a career system. So perhaps a combination.- Thank you very much for another interesting and stimulating talk, particularly your judgements on various judges.(speaker laughing)- Not my judgments, what's been reported.- Right. One of the questions, when you were talking about accountability of the judges, I'm not sure under the various points you raised a case that goes back to about 60 years ago, and I learned from this actually from my father, because the work was entirely to do with crime and law, is that one of the High Court judges had to, was, he told me he was invited to resign, because of very significant proportion of his judgments were overturned by the Appeals Court. I think it was something in the order of 30 or 40%, but that wasn't made generally public. The other thing I wanted to ask you about, you've more than touched on the point of education. Do you think it would be useful in Britain if the study of law was made a postgraduate level study, as they have been, I understand in America --- Yeah.- You can't study- I understand.- Yes. All right, so two parts of the question. The first part was, was I aware of a judge who had 30 to 40% of his judgments overturned and stood down because of that? I wasn't aware of that, so I can't comment on that. And secondly, what do I think about changing the education system so that becoming a lawyer effectively becomes a postgraduate, not an undergraduate. I actually think there's some merit in that. I actually think there's some merit in doing law at postgraduate level, doing a, you know, learning about life, doing another degree subject. I did a law degree and I'm often asked by students,"Do you need to do a law degree?" And I say, "I wish I hadn't. I wish I've done something else, and then come to law,'cause it would just give me a much broader outlook." But that's my view.- [Audience Member] Thank you very much. I got a real education tonight. Can I please ask you, the reason I'm asking this is that judges here should not have to be, having a lot of experience as a barrister, when in other legal systems like the prestigious institute for judges training in France, in Paris, they must have at least 15, 16, and that is a fast track even more, in Holland, it used to be 25 years experience as a barrister, before you could be appointed a judge. How come it has lasted so long here in this country?- I can't answer that. I mean to say, you know, as I've indicated in the lecture, we have a system that is very unique to this country. It used to be the tap on the shoulder. You know, I've indicated that traditionally a lot of the senior judges come from commercial backgrounds. You know, you just need to look at the numbers, and you know, of the people who have said to have got to the top of their careers, maybe they've made silk, you know, very early, very quickly, you know, I know in some areas of law, some of my colleagues make silk much earlier than in other areas of law. Again, that's not an opinion. You just need to look, you know, crunch the statistics, and I think there is merit in what you say that before somebody should be judging, you need a body of experience.- Like in medicine.- Yeah.- You need a body of experience, and perhaps there is an argument that at times, you know, judges who don't have that body of experience, who very, very young in their experience shouldn't be judging. So yeah.- I'm really sorry that we are going to have to cut the questioning short, we're over time. Thank you very, very much for coming, thank you for watching online. Leslie Thomas.(audience applause)(audience applause) Thank you very much.- Thank you.(audience applause)