Dr. Patrick O'Brien:

The key question I will address is whether the removal of politicians has led to a reduction of diversity in the system for England and Wales. It is important not to be too definitive because, as with anything to do with people, social science and culture, there is a lot of stuff going on. Under the pre-existing system, where one had political commitment to diversity, that encouraged diversity. One issue to consider is that if one has politicians who are committed to this goal, the fact that they are more involved in decision-making and choice will have a knock-on impact on who gets chosen. The second aspect of this is an indirect one, which is that if one takes politicians out, in the sense of taking outsiders out, there is a possibility that judges will engage in something more like self-replication. I need to be very careful here because there is a very strong culture of appointment on merit in the UK system and I do not quite mean that as a positive thing.

By contrast with the Vice Chairman’s excellent book on appointments, which I have consulted extensively, most female judges in England and Wales to whom I have spoken are adamant that they have been appointed exclusively on merit and not by reference to any kind of broader consideration of the make-up of the Judiciary. The Vice Chairman’s book suggests that the opposite may be true to an extent for Irish judges. One has to bear in mind that that background characteristic or cultural norm is there.

That said, in any system where one gets a greater involvement of existing incumbents in choosing who succeeds or joins them, one ends up with a degree of self-replication. Everyone wants the people who come after them to have done it the same way in which they did it. There are broader political and cultural reasons why that might be the case and I do not think that we can see it as baldly and as simply as saying that if one has more politicians, one gets more diversity. There are, however, more complex and nuanced reasons why that might be a beneficial side-effect of it, if not a direct consequence. I will pause there as many others may want to contribute.