Supreme Court judge’s recent remarks on women judges make his past diversity pronouncements — which have been highlighted to defend his current stance on gender — worth revisiting
Following the angry reaction to Lord Sumption’s now infamous Evening Standard interview — in which he claimed, amongst other things, that a rush to gender equality “could have appalling consequences for justice” — the Supreme Court office claimed that some of the judge’s comments appear to have been misunderstood.
The office suggested that any misapprehension could be clarified by reading Lord Sumption’s detailed discussion of the issues in his 2012 Bar Council Law Reform Lecture, entitled ‘Home Truths about Judicial Diversity’.
An examination of the content of Lord Sumption’s 2012 lecture does not support that conclusion. In fact, the newspaper article appears to be representative of the thrust and tenor of his lecture.
The problem is not that Lord Sumption was either misunderstood or wrong in identifying some of the working conditions as an important factor impeding diversity. Indeed, many others have expressed a similar view including fellow Supreme Court Judge, Lady Hale (one of the most “family unfriendly professions in the world”).
The work-life balance offered by a career at the bar is hardly a model to emulate and no doubt many women have left the profession (or regret not doing so) because raising a family and career advancement in these conditions is not a workable or desirable choice.
The real problem with Lord Sumption’s thesis are the “home truths” he chooses and the facts that he ignores. As any advocate or historian should appreciate, advancing a reasoned position is not only about whether certain facts are correct or not, but which facts are highlighted. While facts alone cannot be discriminatory, the way that they are selected, especially by those who have benefitted from the status quo, can most certainly have that effect. Those serious about tackling and dismantling class, gender and race barriers know that, while facts in themselves may tend towards the neutral, their interpretation in febrile environments certainly is not.
It is not without significance that in 2012 Lord Sumption proffered only two concrete reasons to explain the shocking lack of representation of ethnic minorities in the judiciary: their late arrival in the profession and the apparent “tendency among ethnic minority candidates to apply at an earlier stage and with less experience behind them”.
Of course, Lord Sumption could as easily have highlighted any number of barriers to career advancement faced by women and ethnic minorities at the bar, not least their access to opportunity. However, only these seem to have jumped to mind.
When we hear about successful white men we already have enough objective information to be able to contextualise the information and avoid jumping to unwarranted conclusions about them as a group. However, when senior members of the legal profession suggest that women and ethnic minorities cannot “cut it” at the bar or that the overall diversity deficits might be attributed to a lack of fortitude or talent or other personal reasons, then, without providing sufficient context, harmful stereotypes are perpetuated and injurious privilege left intact.
Even though Lord Sumption’s claim that it is not necessary to have a particular personal experience to “comprehend it [the experience] equally well”, and that white males are therefore able to speak as authoritatively about the experience of women and minorities as they are themselves is plainly wrong, there are still many facts about the experience of both women and ethnic minorities within the legal profession that he might be expected to know.
The forgotten list is long and makes for depressing — and, for those of us at the receiving end, familiar — reading: the senior male barrister who takes advantage of his seniority to make inappropriate advances to young female barristers; the clerk in chambers who fails to promote women for “male” work; the senior advocates who assume white, middle class juniors will be better for a particular case; the assumptions made about black men and their suitability, or lack of suitability, for certain types of “intellectual” work; the condescension, the lack of support, and other insidious aspects of the old boys’ network.
If women and ethnic minorities’ failure to break through the glass ceiling is always attributed to personal failings or personal choices, then it becomes much easier to ignore the other issues and skew the debate. Many of us are very familiar with these views and the selectivity of those deciding when they are delivered or promoted. We also are well aware of the effect of the drip-feeding of selected facts concerning the abilities of women and ethnic minorities into the professional environment.
Particularly, the way in which they can be misused to represent the whole group, rather than being one of a number of facts that define the experience of that group and the individuals within in it. Without a counterbalancing examination of facts, tired old stereotypes about the meritocracy of the legal profession and discrimination are easily rehashed and given fresh life.
So, yes, we must have a full and frank discussion and address the home truths. Lord Sumption’s failure to once acknowledge any overt discrimination, be it sexism or racism or any other intentional, undesirable attitude on the part of those who benefit from the inequality is a good place to start. According to his view, the legal profession is where it is, not because of contemporary attitudes or ingrained structural barriers that have prevented change and can be overcome but because of problems elsewhere.
The underrepresentation of women and minorities at the senior end has nothing to do with the present day “social ignorance of judges, or by their tacit loyalty to their class, gender, race or other constituency.” Of course not: according to Lord Sumption, at worst, it is down to “patterns of working in ancient professions” or “unconscious stereotyping and by perceptions of ability moulded by their own personal experience”, but nothing more.
It is much easier to arrive at the conclusion that diversity is a choice but not an essential one if we only look at the personal failures of those who fail to advance and not the depth and breadth of the problems and the experience of those who are disadvantaged by them. That’s why Lord Sumption sees no problem with urging us to be patient. There is no real need to urgently root out or eradicate unhealthy and discriminatory attitudes in the system because they do not exist in any measurable or tangible way. Change is not really needed to ensure that the judiciary reflects the diversity of society. He has the “strongest doubts” that a diverse bench improves the quality of justice.
It is not possible to draw any “firm conclusions” about diversity and public confidence in the legal system as a whole. Unsurprisingly, change in these circumstances represents only the risk of “serious harm to the quality and standing of the judiciary”, and nothing else. And so the diversity circle is squared with these selective home truths and we can all rest easy, content in the knowledge that these changes will be made sometime around 2065.
Wayne Jordash QC is an international human rights barrister at London’s Doughty Street Chambers.
Previously:
Lawyers are furious about Lord Sumption’s claim that more women judges ‘could have appalling consequences for justice’ [Legal Cheek]