Of Women, words and the status quo.

It pays to follow current affairs and remain abreast of the news. For every so often, you will witness the beginning of a saga and its development.

I read an article yesterday morning (whatever is new there) which derived from an interview with one of the UK’s most senior members of the judiciary. It may sound rather run of the mill when phrased as such, but I can assure you that the general gist of the interview is really anything but standard. Rather, it proved to be one of the most controversial and divisive articles I have come across recently, and immediately went viral throughout social media. Allow me to elaborate, and offer my own opinion on the interview -and controversial statements – in question.

In an interview with the Evening Standard on Monday, Lord Sumption, a member of the UK Supreme Court, appeared to warn that advocates for swift change in the membership of the UK judiciary – through achieving equal gender representation – could inflict ‘appalling consequences’ on the quality of the UK justice system.

Lord Sumption also seemed to suggest in the interview that he supports the Conservative government’s proposal to scrap the Human Rights Act and replace it with new legislation (the so-called ‘British Bill of Rights’) and argued that the replacing of the HRA and the implementation of new legislation would provide for greater protection for citizens. Whilst he appeared to happily tread the fine line between judiciary impartiality and party politics, it was his comments on women occupying higher positions in the legal profession on an equal footing with their male counterparts which attracted greater scrutiny and debate. I will provide my own opinion on the comments shortly, after detailing the remarks in full.

Whilst Lord Sumption said he believed the judiciary was a ‘terrific public asset’, he appeared to argue that it could be ‘destroyed very easily’ if the selection of candidates was ‘skewed’ in favour of women to achieve equal representation. He stated that equality campaigners would have to be ‘patient’ in achieving their aims in an effort to avoid damaging the system, that ‘terribly delicate organism’ of British justice and the judiciary combined. Furthermore, the Supreme Court judge suggested that it may take as long as 50 years to achieve a gender balance in the judiciary:

“These things simply can’t be transformed overnight, not without appalling consequence in other directions…

“…One has to look at the totality of these problems and not simply at one of them. The lack of diversity is a significant problem, but it isn’t the only one.”

“It takes time. You’ve got to be patient. The change in the status and achievements of women in our society, not just in the law but generally, is an enormous cultural change that has happened over the last 50 years or so. It has to happen naturally. It will happen naturally. But in the history of a society like ours, 50 years is a very short time. “

Lord Sumption then touched upon the issue of an apparent pro-female bias, arguing that by demanding equal gender representation on the Bench to the advantage of female legal professionals, their achievements would be to the detriment of their male counterparts. This, he argued, would merely reverse the problem; it would not solve it.

 “We have got to be very careful not to do things at a speed which will make male candidates feel that the  cards are stacked against them. If we do that we will find that male candidates don’t apply in the right numbers. 85 per cent of newly appointed judges in France are women because the men stay away. 85 per cent women is just as bad as 85 per cent men.

“What we have in this country is a long cultural tradition which is genuinely based on public service, people feeling that at the end of a successful career at the Bar, that [becoming a judge] it is something that you ought to be willing to do. That’s a terrific public asset.

“It’s a tradition which you can destroy very easily and never recreate, not without waiting for a very long time. It would be very unfortunate.”

Yet Lord Sumption was not quite done yet. For in further contentious remarks, he commented that the general view of the legal profession being run and dominated by a ‘old boys’ network’ was ‘rubbish’.  He offered his explanation of the lack of female judges: it is mainly due to the ‘lifestyle choice’ of women who are simply unwilling to tolerate long hours and frustrating working conditions which are the norm on the Bench.

Lord Sumption, who joined the Supreme Court in 2012 after a career as one of the UK’s most successful barristers, took pains to emphasis his support of female equality. He wants to see ‘hidden barriers to the progress of women’ removed. But, as he dismissed the claims of a ‘old boys’ network’ as the cause of the lack of female judges yet acknowledged ‘hidden barriers’, he warned the most serious factor was a ‘high attrition rate’ among female lawyers:

“The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.”

Essentially, one of the UK’s most senior and respected judges is submitting ‘qué será será’ as his reasoning

Such was the cause célèbre stoked by his remarks in the interview, that the Supreme Court was prompted to clarify Lord Sumption’s comments, and issued a statement (which it also tweeted, evidently aware of the social media storm).

The UK Supreme Court sought to issue a statement as ‘A response to some apparent misunderstandings around focus of Lord Sumption’s diversity comments’. The full statement reads:

‘Some of Lord Sumption’s comments appear to have been misunderstood. The full quotes make clear that he believes that increasing diversity at all levels of the profession is important, and that the range of hidden barriers to improving diversity – particularly of the judiciary – present a very complex problem. Nowhere did he try and reduce this to a simple question of ‘lifestyle choice’. The concern he expressed was against introducing any form of positive discrimination to the judicial appointments system without careful analysis of the full range of potential consequences.”

Lord Sumption’s position is set out in detail in a lecture he gave in November 2012.’

I shall point out that the ‘full quotes’ the statement refers to, are those which I have included in this post: how he wishes to see the removal of ‘hidden barriers’. I have already discussed my issue with this statement, and I would like to add that wishing is all very good, but falls quite flat when you also add that you advise equality campaigners to be ‘patient’ and wait fifty years. Oh, and that we must be careful ‘not to do things at a speed which will make male candidates feel that the  cards are stacked against them.’

If he was trying to warn against ‘positive discrimination’, Lord Sumption should have been clearer. As a highly sought-after and successful barrister, and a respected Supreme Court justice, I find it hard to believe that he would struggle to articulate his opinions.

I read the 2012 lecture provided by the Supreme Court statement, and found it to be well-researched and written; he argues the same theme re time: ‘selection on merit alone can be expected eventually to produce a diverse judiciary. But it will happen only over a considerable period of time.’ Yet, his so-called ‘position’ seems rather similar to the view expressed in the interview. In his lecture, at pg 11 he states again his explanation regarding the lack of female advancement into higher-tier positions:

 ‘However, although time will heal some of these barriers to professional advancement, it will not heal all of them. The major barrier to the professional advancement of women has been identified by the surveys commissioned over the years by the Law Society and the Legal Services Commission. It is that the exceptional demands which the profession makes on its most successful practitioners, in terms of commitment, working conditions and sheer hours. Not every one wants to put up with this. Those who do not, are making a perfectly legitimate lifestyle choice. Only the equal sharing of household and childrearing obligations between men and women can be expected to have a significant effect on this critical aspect of the culture of the professional workplace. It may happen, but it will involve a very profound, long-term change in social attitudes, which is beyond the reach of legislation and has, as yet, barely begun.’

Yes, basically the lack of female advancement may be attributed to men and women not sharing child-care responsibilities as per societal gender norms, and generally more women desire to start families than their male counterparts.

Lord Sumption also discusses the French model of career-judges, and again reiterates his concerns surrounding the majority of French judges being female, to the detriment of men. It also, in his conclusion, emphasises the ‘damage’ that could be suffered by the judiciary and justice system, should representation be achieved too quickly, and not over time. And on the topic of understanding why there are such obvious discrepancies between women in positions of authority and salary difference, Lord Sumption states, ‘The reasons for this pattern are beyond the scope of this lecture.’

I personally believe that appointments to any position of authority should be on merit, and merit only. I strongly believe the creation of quotas to satisfy equal representation requirements actually fails to address the traditional mindset of ‘old boys’ network’, for all that it may physically change the composition of the workplace. In addition, it essentially tells the employee in question that they were hired on the premise of satisfying a quota, not because they boast superior experience or expertise compared to the other candidates.

However, if Lord Sumption – as he did – classifies the Bar and indeed the Bench as a meritocracy, this implicitly suggests women are lacking on merit. They must be, if they only comprise 25 percent of the overall population of judges. I refuse to believe these women, successful legal professionals working in demanding jobs, cannot compete on the basis of merit alongside their male counterparts. Evidently, there are indeed talented and experienced female lawyers in the profession. The only conclusion one can readily reach is that they are being passed over during appointments in favour of men.

May I take this opportunity to remind readers of the statistics relating to female judges? Official statistics reveal that out of 106 High Court judges, only 21 are female. There are only eight women to be found among the 38 Court of Appeal judges. It is a well-known fact among law students in particular that there is only the one female Supreme Court justice, Baroness Hale (she is rather the celebrity these days.) As previously mentioned, the overall proportion of female court judges is just over 25 percent.

25 percent. Surely, surely such an obvious discrepancy cannot wholly be attributed to ‘lifestyle choices’. As I touched upon previously, there is something wryly amusing in reading how Lord Sumption breezily dismisses the ongoing existence of ‘an old boys’ network’ operating the legal profession, yet he readily acknowledges that female lawyers face ‘hidden barriers’. (But he wishes to see such barriers removed. So that’s alright then.)

I refuse to believe that the majority of female lawyers who aspire to sit on the Bench are unwilling to endure long hours and tiring working conditions to achieve that goal. These would be women who undertook challenging degrees, who searched for work experience and successfully applied for competitive mini- and graduate Pupillage. These would be women who may have had to take out loans to fund their postgraduate degrees, maybe a LLM as well as the BPTC, and work part-time to ensure they could repay such loans. These would be women, who spent hours researching and studying in libraries and at home, working on coursework and examination revision. These would be women, who learnt to juggle their social lives at university, with their degree, volunteering, part-time employment and student organisations. These would be the women who made up the greater percentage of law graduates. These would be the women who work, day in and day out, in the knowledge that their gender statistically make up the most of legal professionals, but are disproportionately unrepresented in the higher positions, whether in making partner, or making the Bench.

Please do not patronise women, Lord Sumption, by saying that ‘more women than men… are not prepared to put up’ with working long hours, or in tough conditions. Female barristers and solicitors are already doing exactly that. They expected to do so, and will continue to do so – because they wish to climb the proverbial career ladder. They wish to succeed in their chosen profession, wish to realise their goals.

My personal input? As a woman aspiring to enter the legal profession, it is marvellous to know that it is apparently ‘skewed’ in favour of women.

I truly appreciate that Lord Sumption, as one of the UK Supreme Court judges and thus one of the most senior figures in the judiciary, believes that any promotion afforded to myself or other women is detrimental to our male counterparts, and furthermore, obtained on the basis of a pro-female bias. (Not that I, or any other woman, would achieve promotions on merit.)

As a law student who has experienced university education both in Northern Ireland and America (via a scholarship), has studied Law, American Business and PR, has revised into the wee hours for her Law exams and successfully adapted to the rigorous testing system of American colleges (tests, papers and group projects every other week) I feel I could cope with lengthy working hours. I volunteer, I have tutored primary schoolchildren, I am currently working as a ‘Buddy’ to international students and acting as a Studies Ambassador for a European newspaper. I am prepared for a hectic and challenging career – indeed, it is what I desire to do, and I am committed to working diligently to achieve my career aspirations. I am a conscientious student; I am confident I will become a conscientious legal professional. My lifestyle choice is to be a successful legal professional.

Just what ‘appalling consequences’ exactly do you envisage, Lord Sumption, should more female lawyers be appointed to higher positions? An accurate representation of society within the judiciary, perhaps?

In his 2012 lecture, Lord Sumption wearily discussed how there is a contemporary view of judges being narrow-minded, aloof, and detached from society. He dismissed this as being false. But when women comprise 51 percent of the country’s population, yet comprise only 25 percent of the judiciary, this contemporary view is readily understandable. Indeed, it could be argued that this view holds truth. (I was going to say, ‘holds merit’. Highly applicable, and ironic, considering the gist of this post.)

Lord Sumption is a highly intelligent, and well-educated man, as this Guardian interview demonstrates. A gifted linguist, historian and author, he also appears to be self-effacing. He was a successful barrister and now a respected member of the UK Supreme Court. Hence my disappointment at Lord Sumption’s comments. If a man of his intellect and authority believes that the evident gender imbalance in the UK judiciary is a consequence of women having different ‘lifestyle choices’ to men and a dislike of working long hours, then the ‘hidden barriers’ to female advancement he himself acknowledges will simply be all the hardier to remove.

For Lord Sumption to express his fears that the fair advancement of women will harm the (traditional and continued) advancement of men – with the greatest respect and deference to Lord Sumption, this is fear unfounded.

In sum: It is always wryly amusing to read a person who holds an exclusive position of power discuss how such a position should remain exclusive.

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