Abstract

This article addresses a key question in debates around judicial diversity: what evidence is there that a more diverse judiciary will make a difference to substantive decision-making? The article begins by outlining the range of arguments for a more diverse judiciary which include, but are not confined to, making a difference to substantive decision-making. It then turns to consider the considerable evidence which now exists both to refute and to support the existence of substantive differences in decision-making following the appointment to the judiciary of women and others from non-traditional backgrounds. On the basis of this evidence, it draws conclusions as to the kinds of differences in decision-making which might be expected, and the circumstances under which different approaches to decision-making are likely to flourish.

Highlights

  • There has been significant attention paid in England and Wales in recent years to the need for greater judicial diversity; in particular, the need to appoint more women judges

  • This article addresses a key question in debates around judicial diversity: what evidence is there that a more diverse judiciary will make a difference to substantive decision-making? The article begins by outlining the range of arguments for a more diverse judiciary which include, but are not confined to, making a difference to substantive decision-making

  • The judicial appointments system was changed in 2006, replacing the old system of ‘tap on the shoulder’ and ‘secret soundings’, which inevitably reproduced the profile of the existing incumbents, with a Judicial Appointments Commission whose mandate is to operate a transparent system based on applications and appointment on merit, and to increase the diversity of those applying for judicial office.[1]

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Summary

Introduction

There has been significant attention paid in England and Wales in recent years to the need for greater judicial diversity; in particular, the need to appoint more women judges. A similar question about the impact of greater diversity on decisionmaking was broached by the House of Lords Constitution Committee when Lord Pannick asked Lady Hale, during her appearance before the Committee, whether she could provide any evidence that ‘substantive decisions being taken would or may be different if the composition of the appeal courts were different’.11. Before proceeding with my specific argument about substantive diversity, I shall first place it in context by reviewing the range of reasons for having a (more) diverse judiciary

Why Should We Want a More Diverse Judiciary?
The Impossibility of Substantive Diversity
The Contingency of Substantive Diversity
Findings
Conclusion

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