I have long been aware that the question of the "diversity" of judges would soon become a battle ground. I've also expressed great concern that the Conservative "Priority List" will hamper the Party's ability to criticise steps to water down the quality of our judiciary in a substantively pointless attempt to reach "quotas" for apparently desirable personal qualities. Indeed, I put it to a senior member of the Party that
Given what a brilliant tool you think the Priority List quotas are for the Party, can we have one for the appointment of judges too?
This represented an awkward conflict of principles which, readers will recall, elicited no coherent answer. I fear the Tories have tied their hands.
On Tuesday the Commons Constitutional Affairs Committee heard the first steps towards such a deleterious policy. Now, I know that by being so critical I am probably scuppering my own chances of appointment to the bench by Tony's Cronies, but hopefully one day I'll have the money to make the requisite loan to the Labour Party or afford a sex-change operation so I'm part of a diversely desirable group. For the moment I cannot hide my frustration with such nonsense.
Baroness Prashar, Chairman of the Judicial Appointments Commission (JAC), told the Committe that "We want to increase the pool of applicants to make sure it's more diverse. Ultimately, it's important to ensure that the outcome is also as diverse. It's no good saying we are getting the applicants and they are not being appointed. If that was happening, something would be drastically wrong."
Now, the Constitutional Reform Act, which sets up the independent JAC mandates it to have regard to only one criterion in selecting candidates for the judiciary: merit. To begin to discuss diversity of the outcomes is clearly beyond the remit of the JAC. What should matter is the quality of the output. What should matter is if the best candidates, no matter what their ethnic background, gender or level of physical ability are making it to the bench. If brilliant candidates are not, then you ask questions, then something is "drastically wrong". Until that point to focus on specific characteristics of those appointed, to manage "equality of outcome" rather than just striving for equal opportunities, to be offered purely on merit would be retrogressive, wrong and harmful to the adminstration of justice in Britain.
Fortunately, new Tory MP, Jeremy Wright, was up to the challenge.
Was it Lady Prashar's intention that diversity should be reflected in the outcome of a judicial appointments process?
She replied by asserting that there exists no tension between merit and diversity, "But if we find the outcomes are not reflecting the number of applicants, we will then begin to look at what's going wrong, and take the necessary steps."
Mr Wright then cut right to the point: why should that mean anything was wrong? Surely if there was no evidence that clearly meritorious candidates were rejected there was no problem?
Lady Prashar couldn't answer this.
What was the JAC's desired outcome, another MP enquired?
"The desired outcome is that the judiciary actually becomes more diverse," Lady Prashar said.
"More diverse until what point?"
"I am not in the business of setting up quotas, I am not willing to give you figures and numbers."
Clearly, however, the powers that be have them in the back of their minds. Goodbye, merit. Hello, social engineering. Barriers to diversity will restrain quality. Attempts to manufacture it will have the detrimental effect on the quality of Tory MPs but, also, and more importantly, on the bench.