Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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Home truths?

19 November 2012

Lord Sumption recent gave a speech: Home Truths about Judicial Diversity.

It’s worth reading in full, and I agree with a lot of it. In particular, I agree that taking positive action, in these sense of giving preferential treatment to certain candidates, in order to create a diverse judiciary is likely to do more harm than good. But I think he’s wrong about two important points.

Positive action is not the only solution

Lord Sumption argues that the central problem with increasing the diversity of the bench is the diversity of the legal profession. Given that only 32% of barristers are women (and only 11% of QCs), he argues, it is unrealistic to expect selection on merit to produce a gender balance on the Bench. He applies the same argument to the ethnic breakdown of judges.

Since the demographics of the Bar are changing slowly, he argues, the demographics of the bench will also change slowly. Especially since there is a time lag between entry to or progress at the Bar and becoming a judge.

The only way of speeding this up, Lord Sumption says, is to implement positive action, by moving away from appointment on merit towards giving women and ethnic minorities preferential treatment.

I think this misses the obvious approach, which is to try to address the problem by improving diversity at the Bar, especially at the senior end. This is not an easy answer. It won’t produce the fairly immediate effect that positive action would. And it’s not easy to do.

The Bar Barometer includes quite a bit of data about both gender and ethnicity at the Bar.1 It tells us that in 2011 more new tenants were women than men did and that 11% were Black and Minority Ethnic (91% of the population is white).2 This all suggests that, at the point of entry, the Bar does not have serious problems in relation to sex and ethnicity.3

The picture gets more troubling once you look later at more senior barristers. The Bar as a whole is 10.2% BME, but only 8.5% at 15 years of Call are BME. Only 5.2% of silks are BME. Similarly, the Bar as a whole is 35.1% female, but only 11.8% of silks are women.4

As Lord Sumption points out much of the explanation for this is historical. 20 years ago, both society in general and the Bar in particular was much less friendly to women and ethnic minorities than it is now. 40 years ago they were often positively hostile. It takes time for change to filter through to the senior bits of the profession and, from there, to the judiciary.

But, as he also points out, this is not the complete picture – particularly in relation to women. Women’s careers are much more likely to terminate, stall or slow down than men’s. This is primarily because women, but not men, get pregnant and they generally then take on the main responsibility for child care.

I think Lord Sumption rather muddles this element of his analysis. He starts by talking about ‘the exceptional demands which the profession makes on its most successful practitioners, in terms of commitment, working conditions and sheer hours.’ ‘Not everyone,’ he says, ‘wants to put up with this.’ Then he passes to his conclusion that ‘Only the equal sharing of household and child-rearing obligations between men and women can be expected to have a significant effect on this critical aspect of the culture of the professional workplace.’

This, I think, conflates two related but separate phenomena. One is that women have babies and often then spend significant time either off-work completely or working fewer hours than they did. This often results in their careers progressing more slowly. The second is the proposition that women are less likely to display the sort of obsessive focus on their career that is necessary to advance. The later, it seems to me, is a distinctly shaky hypothesis. Is it possible that fewer women than men have that personality type? Certainly. But I’ve not seen it convincingly proven. Even if its true, barristers are not drawn from the whole of the population. And, even if its true now, we are in middle of some dramatic shifts in our cultural definitions of gender and how we expect men and women to behave. Trying to make predictions for the next few decades is fraught with difficulty.

Even if the hypothesis is right, that still leaves the issue of whether its desirable for the top of the profession to be restricted to people willing to endure such exceptional demands.5

Leaving the detail aside, I think Lord Sumption is right that we won’t reach equality between male and female judges without a profound shift towards equal responsibility for child-rearing.

I don’t agree that this means no significant change is possible before that. The Bar could, and almost certainly will, get better at assisting barristers who have children, through changes like better maternity policies in Chambers and better access to child-care. None of this will eliminate the career impact of children – but it will reduce it. The faster this can be done, the faster we’ll get a more diverse Bench.

Also, I think it would be worth looking at career paths through the judiciary. One of the odd features of the current system is that there are tiers within the judicial hierarchy and people rarely move between tiers. It’s unusual for a District Judge to go on to become a Circuit Judge – or a Circuit Judge become a High Court Judge. It’s even more unusual for a District Judge to become a Circuit Judge and then a High Court Judge.6 This means that the upper tier is almost all drawn directly from the very pinnacle of the Bar.

Lord Sumption argues for the status quo, somewhat in passing, by arguing against the French system. The French recruit judges young (mid to late twenties) and they then advance from an junior judicial post to more senior ones. He argues that this results in men opting out of a judicial career, in exchange for pursuing the more rewarding option of professional practice. Furthermore, he argues, the current system has given the UK an excellent judiciary, drawn from the best of private practice.

This may or may not be right. I’m not sure that it’s so easy to generalise from the French experience. But this is a straw-man. There is no need to be in favour of moving to a separate judicial career stream that must be started in a lawyer’s twenties to think that a bit more opportunity for career development once a judge is a good idea. I’m not sure how much it would assist diversity, but there are significantly more female (and BME) judges at the lower end of judicial hierarchy, so it certainly might.7

A diversity of experience is valuable on the bench

Lord Sumption asks himself the vital questions: Does a diverse bench administer justice differently or better?

The best argument that it does, he suggests, is that a diverse Bench has a wider collective experience to draw upon. I think he’s right.

He rejects the idea for two reasons. First, he says, it can only apply to courts with multi-member panels — not to judges sitting alone. Second, he thinks that it overstates the extent to which judges need personal experience of the situations that they called upon to consider.

I think he’s wrong on both points.

First, Judges effect and influence each other in all sorts of ways, outside sitting together in multi-member panels. They talk to each other. They ask their Regional Judge for guidance on a tricky case. They go on training together. They talk. There are extensive opportunities for ideas and experience to be cross-fertilised. Barristers communicate other than by appearing in the same case. So do solicitors. So do judges.

In addition, I think Lord Sumption is wrong to think Judges don’t interact through their judgments except directly by sitting on the same case. Consider, for example, the EAT. The Judges don’t sit together – only with lay members. But they certainly read each others’ judgments. Judges are always considering judgments from their colleagues. In some Courts, including the Court of Appeal and Supreme Court, that is the whole job.

This is how the common law develops. It’s an ongoing conversation between parties, lawyers and judges. Ideas raised in one case are reconsidered by later cases. Some ideas are built upon and extended. Some are cut down over time or rejected entirely.

This ongoing testing and refining of ideas by a large number of judges over a large number of cases is one of the great strengths of our system.

In relation to the value of personal experience, Lord Sumption is, of course, right that Judges don’t often have personal experience of the situations that they judge. It’s impossible — and in many cases undesirable (crime being an obvious example).

So judges have to rely on generalising from the experience they do have and from what they observe.

This is precisely why a diverse judiciary is valuable. People with different backgrounds and experiences have a different perspective to bring to bear. That perspective does not have to be directly relevant, for exactly the reason Lord Sumption says: Judges are not applying their experience directly, but using it to understand and empathise with very different experiences.

There is an obvious danger that, if judges are drawn from the same background, they will apply their experience in a similar way and be unable or slower to understand certain situations. Lord Sumption argues that we can see that this is not the case, because it is predominately white male judges who have produced legal doctrines like presumed undue influence, which are based on understanding the situations of other groups. This, again, is a straw man – nobody is suggesting that no white man can ever empathise with the situation of a BME woman. Just that it is useful to have both women and BME judges in the system to give it, as a whole, more flexibility of thought.

Lord Sumption also argues that, if personal experience of being from a particular group is desirable, there are many relevant groups, apart from women and ethnic minorities, who are entitled to be represented.

I think ‘entitled’ is an unfortunate word here. Some people would argue that women, for example, are entitled to be represented among the judiciary. But that’s a very different argument to one that says that it’s desirable for there to be more female judges. The same applies to BME candidates and judges.

As to the wider point, I think he’s right that, if it’s good to have diversity of experience, in gender and ethnicity, there are both many subgroups and other groups whose experience would be desirable.

But this must be right and, really,unobjectionable.

To take things outside the normal equality characteristics, I think, for example, that it’s desirable to have some judges who have spent time studying science — rather than the whole judiciary being made up of law and humanities graduates. This is for exactly the same reason that I think it’s good to have women on the bench. A scientist will have a different perspective to bring to the conversation. For the same reason, I think there should be more senior Judges who were solicitors rather than barristers.

Similarly, it would unfortunate if the judiciary had the same percentage of ethnic minority members as the general population, but they were all from the same ethnic group. That would be another sort of diversity problem.

In conclusion

Lord Sumption is right that the case for, and against, positive action should be looked at seriously and squarely. I agree with his conclusion that moving away from selection on individual merit is undesirable. But I think he underestimates the extent to which appropriate steps, short of positive action, can be taken to improve judicial diversity. And I think he underrates the extent to which that matters.

  1. Totally irrelevant aside: ‘Bar Barometer’ is an extraordinarily daft name. It’s a truly awful pun and suggests someone horribly misunderstand what a barometer is.

  2. Population data from Population Estimates by Ethnic Group 2002 – 2009, ONS

  3. The raw numbers conceal a more complex picture, especially in relation to ethnic groups. BME barristers are not evenly distributed across Chambers or across areas of work.

  4. Unfortunately, the Bar Barometer doesn’t include information about the percentage of women at different years of call.

  5. And, even if it’s undesirable, is it inevitable? I suspect that its both desirable and inevitable that the very top of the profession is restricted to those willing to prioritise it over other things – but perhaps not to the extent that it currently is.

  6. In fact, I don’t think it’s every been done.

  7. Diversity statistics and general overview, MoJ 2012

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