Working Theory

by Michael Reed


I do employment law for the Free Representation Unit.


michael at


Lord Sumption on women

22 September 2015

I agree with Lord Sumption that we shouldn’t use positive discrimination to ensure more women are appointed as judges. But I do wish somebody else was the public face of this position, because I think he puts it exceedingly badly.

Lack of diversity in the judiciary is a serious problem for a number of reasons:

Lord Sumption’s position seems to be that, at this point, the main cause is female lawyers’ lifestyle choices. This is the sort of arrant nonsense that has just enough truth in it to look plausible if you want to believe it. Of course, a major part of the issue is mid-career retention of women. This has a lot to do with maternity and, to a degree, it involves women making choices. But those choices are not made in vacuum and so also have a lot to do with things like how women’s careers develop and how Chambers / firms manage maternity leave. And, frankly, the idea that this is the only problem and there is no impact from sexism at any stage, is, in my opinion, naive. As Steven Vaughan quickly pointed out, the problem is much more complicated than Lord Sumption suggests.

Given this, why don’t I want positive discrimination?

First, because I think it’s a damaging departure from principle. For me, the crucial insight of equality is that in our public life, our gender, our race, our sexual orientation and so on, shouldn’t matter. We are not a collection of warring groups, defined by our characteristics, and locked into a zero-sum game. When we decide who gets a job, we should not, whether consciously or unconsciously, be looking to give it to ‘one of us’ – we are all one of us.

Now, this is all high idealism and needs some fairly extensive modification to work in practice. We have to grapple with our our individual prejudices and assumptions. We have to avoid the fallacy of calling for a level playing field when many people come to the field carrying the weight of centuries of disadvantage on their backs. We need to recognise that often, treating people the same isn’t enough – especially when supporting people with disabilities. But I think the principle is still important and shouldn’t be abandoned lightly.

Second, I do think Lord Sumption has a point when he says that there are damaging side effects to positive discrimination.

I think it does risk a backlash. And I don’t think resentment would be wholly unjustified. It would be a hard thing to be told ‘You’re the best person for the job, but we won’t give it to you, because we want more women on the bench generally’. I’m a feminist who thinks we need to solve the problem. I’d still be deeply annoyed to be told that. Although, I also take the point that many people think they’re the best person for the job when they’re not. And, in effect, Lord Sumption (and I suppose I) are saying something uncomfortably close to this to women ‘We should solve the problem, just give us some time. Of course, it might take decades, but at least you’ll know that your daughter (or maybe your grand-daughter), will get a fair deal’.

But there other disadvantages as well. It would put a question mark against the appointment of any women once it is used. It will inevitably be asked ‘Would she have been good enough to be appointed on her own merits?’ It could affect judicial recruitment more widely. Lord Sumption is right that there is an element of public service to the UK judiciary. Although I have to say that I think ‘If you introduce positive discrimination we’ll go off in a strop’ is an unattractive point – and I don’t actually think it’s true. But perhaps he knows the senior male Bar better than I do.

All of these points are, in the end, facets of one problem. Positive discrimination only reinforces the idea that we are somehow split into antagonistic groups. That is what we should be trying to get away from. In the long run, I worry that it can easily slow our progress, rather than accelerate it.

With all this in mind, I’m not adamantly against positive discrimination in every situation. But it is, for me, the nuclear option. It’s an inherently bad and damaging solution, which should only be used when all the other choices are even worse.

For example, I think there is a sensible argument that racial issues in the US were sufficiently serious and entrenched that it was right to introduce affirmative action to break them down. But the political history to date shows that this was by no means an easy solution.

In relation to judicial diversity, I don’t think we’re yet at the point where the benefits of postive action outweigh the disadvantages.

Not least because the bulk of the problem appears with to be with the retention of women in the middle of their careers. Action to improve maternity provision at the Bar is likely to be more productive in the long run. I’d start with requiring Chambers to publish their maternity / paternity policy on their website. But I’d also like to see requirements for Chambers subsidised maternity leave (or possibly centrally subsidised leave). And the Bench book should require Judges, save in exceptional cases, to list hearings part-time on request to facilitiate more flexible working.

Doubtless other (and better informed people) can suggest more ideas. I hope they do. However much we might want to avoid positive discrimination, doing nothing is equally unsatisfactory.

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