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 often be fairly simple and would, in any event, 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.)

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:

• It makes the law and the judiciary look unrepresentative and out of touch, reducing public confidence in the administration of justice.
• It means we’re not getting the best judges. Only 19% of High Court Judges are women. There’s no way that men are four times as likely to make good High Court Judges than women. You can discuss where the problem occurs. Is it in the education system, pupillage recruitment, career development, mid-career retention, appointment to silk or judicial appointment itself? But this is an argument about the nature of the problem, rather than its existence.
• It damages the development of the law, because it narrows the pool of people thinking about it and making decisions. It’s not that female judges make radically different decisions in individual cases. It’s that they bring a different life experience to bear. Given that the common law develops in a conversational process over many years, it’s important to have as wide a perspective engaged as possible.
• It’s unjust in relation to the individual women who aren’t being appointed when they’re the best people for the job.

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.

Closing the gap

17 July 2015

I rather like the optimistic tone of the government’s consultation on closing the gender pay gap.

Well, it might be optism. Or it might be bull headed refusal to face facts.

Chapter 1 starts: ‘Paying men and women differently for the same job is unlawful and has been for over forty years… Rather than signifying unequal pay, a gender pay gap shows the difference between the average earnings of men and women as a percentage of men’s earnings.’

You could certainly have the equal pay the law demands and still have a gender pay gap. But does anyone think that’s the case? Really? Or do we think the many equal pay cases of recent decades represent the tip of a rather large iceberg of unlawfully unequal pay?

There’s certainly room for discussion about how much of the gender pay gap is about unlawful discrimination and how much of it reflects other factors. But I fear starting with the assumption that we have complete compliance with the current law appears naive at best.

Similarly, the consultation goes on to note that women ‘tend to end up concentrated in sectors that offer narrower scope for financial reward.’ I’d like to have seen some recognition of the possibility that this is not a neutral process; and rather than women simply choosing sectors of low financial reward we, as society, assign low financial reward to those sectors where we find a lot of women.