The Sunday Herald for 12 October 2008 revealed the hitherto unsuspected truth that the Scottish higher judiciary is mainly “male, white, middle class, privately educated, Edinburgh resident and New Club member”.
These sensational revelations were the product of intense investigative journalism, which also succeeded in eliciting a call from the Equality and Human Rights Commission for “a truly representative judiciary”. The Commission spokesperson added, for good measure:
“How many disabled people, people from the lesbian, gay, bisexual, and transgender community or from different race or faith groups sit on the bench? What are the barriers that prevent these groups from progressing in our legal system?”
One is bound to ask how much the spokesperson knows about our judges in order to be so sure that the groups mentioned are wholly absent from the bench.
The Sunday Herald article also leaves completely unclear what if any problems this unrepresentative judiciary has created for Scottish society, apart from a brief reference to a later over-ruled judgement of Lord Abernethy in a rape case (see Nos 103, 145, 167). Surely one must agree with Lord McCluskey’s general point (if not his way of expressing it), when he is quoted as saying "If I am going to be in hospital for an operation on my brain, I don't want the surgeon to be picked by reason of diversity. I don't want a one-eyed woman from Jamaica.” Lord Rodger said much the same thing, a tad more elegantly, in his contribution to the August Journal of the Law Society of Scotland. It also occurred to Scots Law News to wonder whether, given the significance of Scottish newspaper editors in the body politic, their ranks were in any way representative of Scottish society as a whole.
The article has one fair point in so far as the much-criticised Judicial Appointments Board for Scotland has not yet brought about any perceptible change in the composition of the higher judiciary. This presumably also reflects who is applying for the jobs in the first place; one suspects that only one reservoir of potential talent is flowing through the relevant channels. But The Sunday Herald’s “story” will at least make a little more interesting who emerges from the Board’s current deliberations over the replacements for the late Lords Macfadyen and Johnston as well as the retiring Lord MacEwan. The paper gives three names of possible candidates all of whom are current QCs – Gordon Jackson, Paul Cullen and Valerie Stacey – and throws Sheriff Ian Peebles into the ring as well.