UK ‘Tie Breaker’ Legislation

The UK government is introducing legislation that will provide, among other things, that as between candidates for the bench who are equally qualified, preference may lawfully be given to the one whose appointment would contribute to rectifying the under representation of a disadvantaged category.

Jonathan Sumption of the UK Supreme Court delivered the Bar Council Reform Lecture last week in which he says “Attitudes have changed but their legacy will take a long time to disappear.” He states that positive discrimination is the only thing that is likely to accelerate the rate of progress in reaching judicial diversity, but argues that it is not desirable because, among other things, selection on merit will eventually produce a diverse judiciary.

He refers to the adoption of diversity as a criterion for judicial appointments in Canada. He pointedly distinguishes the British and the Canadian contexts: Canada he observes, has been “…significantly more successful than we have in integrating immigrants into the established patterns of Canadian life.”