Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

Being positive about judicial diversity

23 September 2015

Having written that I’m against postive discrimination to address problems of judicial gender diversity, I thought it might be useful to say what I’d do instead.

Selection process

Judicial selection is done by the Judicial Appointments Committee. I’m on the outside of that, but my impression is that they run a pretty good, modern and professional recruitment process. They have person specs and scoring systems, which they measure the candidates against. I’m sure it’s not perfect, because recruitment is a difficult process. But, if there is bias there, I think it’s fairly minimal.

Nonetheless, given the importance of the problem and its intractable nature, I’d be inclined to try and make sure. For a few years, I’d require some selection panels, including all those for the senior judiciary, to be made up of 50% women. This may not eliminate the possibility of bias or sexism, particular if we’re dealing with subtle forms of expectation and perception. But it should certainly reduce it. I also think it would increase confidence in the system.

Silk appointment

Appointment to Queen’s Counsel is an important step towards judicial appointment. It’s done by the Queen’s Counsel Selection Panel and run on similar lines to the JAC (although the application form is infamously long and difficult to complete).

For similar reasons as in relation to judicial appointment, I suspect bias in Silk appointment is probably fairly minimal. But, again, I’d try to make sure by requiring the selection panel to be 50% women.

Encouragement to apply

One of the theories behind the difficulty of appointing women as judges and silks is that women are more reluctant to apply. The cliche is that men apply for jobs when they’re under qualified for them, while women wait until they’re overqualified.

I’m slightly cautious of this, because I slightly worry that it ducks the problem by putting the blame on women rather than on the system. But, nonetheless, it’s a potential problem and one a number of women who I respect have pointed to.

So I’d redouble the efforts of organisations like the Temple Women’s Forum to encourage and support women who might apply.

Retention of women at the Bar

I think this is the crux of the problem.

Looking at the Bar Council statistics, at the point of call to the Bar, 51% are men and 49% are women.1 But, after 20 years of practice, the proportion of women has dropped to 40%. And then only 14% of silks are women.

Unfortunately, I think these statistics understate the issue, because, at the 20 years point they only account for women who have left the profession entirely. They don’t don’t account for people who are working less or on less remunerative / prestigious work – both are likely to hinder them in reaching judicial positions, particularly the senior ones.

The most important factor here, I think, is maternity. Women are more likely to take responsibility for child care and this tends to hinder their career progression. Some of this is about sexism / prejudice against those looking after children; but it is also about the lack of anything resembling proper maternity provision at the Bar. If you’re a solicitor who takes time off for children, you can expect to be paid maternity pay. As far as I know, the best you can expect at the Bar is a rent free period. This isn’t reasonable or sustainable.

All Chambers should publish their policy on maternity / paternity leave and make it available on their website. I know, from speaking to aspiring female barristers, that this is something they think about – but almost none of them would feel comfortable asking about Chamber’s policy. They shouldn’t have to.

This won’t, however, be enough. I think the Bar has to work towards some sort of system of paid maternity leave. This is complicated, because of the self employed structure. But it should be possible, at least for successful commercial Chambers, to provide for it collectively. It’s even harder for legal aid / criminal practitioners. I think, in the end, we might need to move to a system where a minimum level of support is provided for through the practicing certificate and the Bar Council.

As well as practical assistance to individual barrister, this is about shifting the culture and creating a virtuous cycle. At the moment, we have preconceptions about who senior practitioners / judges are and what the look like. Those images are created, in large part, by the people we see in those positions. If we can increase the number of women, perceptions should shift. This will encourage more women and allow them too to be appointed, accelerating the shift.

The other practical point I’d like to see addressed is court listing. There should be an assumption that cases should, on request, be listed on a part-time basis – at least to the point of a four day week.2 This would, I hope, make it easier for people to return to practice. Of course, there would be some complications – for example where both counsel wanted a different part-time schedule. But these could often be overcome. In any event, it would be a move in the right cultural direction.

Greater flexibility in judicial work

This leads to the need to reform the judiciary itself. Part-time work should be much more common (the tribunals seem to be ahead on this, I know a number of salaried employment judges who work part-time, but, as far as I know, nobody in the High Court or Court of Appeal does).

There should also be much more movement between different parts of the judiciary. At present, people’s judicial careers follow fairly static paths. In particular, almost all senior judges start be entering the High Court – they almost never work their way up from being Circuit Judges, District Judges or Tribunal Judges.

No doubt there will always be people who enter the senior judiciary directly, having had the sort of careers that the current senior judiciary have had. But this should be one of a number of routes. There are a number of reasons for this, but one is that it would help spread the greater diversity in other areas to the senior judiciary.

Direct appointment?

I seem to be spending much of my blogging week disagreeing with people I like and greatly respect. But I disagree with Karon Monaghan QC when she suggests one solution is more direct appointment of women. I don’t think there are ‘plenty of women at the senior end of the legal profession who could match Lord Sumption for intellectual ability’. There are very few, indeed only a handful; just as there are only a handful of men at the senior end who could match Baroness Hale. The Supreme Court is in rare air, as it should be.

Of course, you only need one or two – and I can, of course, think of a few. But I don’t think it’s the right solution for two reasons. First, it doesn’t address the imbalance in the High Court and the Court of Appeal – which is, in many ways, more important. Second, I think direct appointment is a bad idea, because it’s too risky. Being a good judge isn’t as simple as intelligence and ability at the Bar. The membership of the Supreme Court is terribly important. They deal with the most important cases and have profound influence over how the law develops. I want people to have proved they’re great judges, as well as great lawyers, before they’re appointed that high. (It’s probably obvious, but, for the record, I’d not have appointed Lord Sumption, for exactly that reason.)

  1. From the Bar Diversity Profile 2014 and Barristers’ Working Lives 2013

  2. I actually think this should probably be done generally anyway, just because I think it would be more efficient.

blog comments powered by Disqus