Legal profession and diversity

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  • Created by: Nikki
  • Created on: 07-04-15 22:03


15,600 barristers

Represented by The Bar Council

Regulated by The Bar Standards Board

4/5 in chambers are self-employed

Pupil -- Tenancy -- Junior Counsel -- Queen's Counsel (silk) -- Judge

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108,000 with practising certificates

Represented by The Law Society (trade union?)

Regulated by Solicitors' Regulatory Authority

Code of conduct


  • system of attorneys and solicitors
  • solicitors = landed estates
  • attorneys advised parties in lawsuits
  • two roles combined
  • Law Society in 1903

Trainee -- Associate -- Senior Associate -- Salaried partner -- Equity partner

Fragmentation of the profession?

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What is diversity?

Best understood not in numbers but in diversity of life experience -- not restricted to numbers but those factors are likely to be indication of expereince whic is different to the norm

Types of diversity

  • gender
  • sexual orientation
  • colour
  • ethnicity
  • class
  • religion
  • beyond the bar to soliciors profession and academia?

Aims (Hale)

  • equal opportunities (equity)
  • to 'make a difference' (difference-based)
  • democratic legitimacy (legitimacy)
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Reforms in diversity: Constitutional Reform Act 20

Constitutional Reform Act 2005 -- created new appointments process overseen by the Judicial Appointments Commission (JAC)

  • design appointments system free from bias
  • specific statutory duty to encourage diversity
  • judges on JAC, but in minority, and don't act in representative capacity
  • chaired by layperson 
  • Judicial Appointments and Conduct Ombudsman 2006
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Reforms: Advisory panel on judicial diversity 2010

  • called for 'fundamental shift of approach'
  • opposed quotas
  • encourage outreach work by judges and professional bodies
  • law firms should encourage part time judicial service
  • induction programmes
  • all posts are capable of being delivered through some form of flexible working arrangement

Judicial Diversity Task Force

  • follow up to report
  • representatives from MoJ, senior members of Judiciary, JAC, Bar Council, Law Society, and the Chartered Institute of Legal Executives
  • several inititatives 
  • diversity definition expanded to cover religion and sexual orientation
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Reforms: HL Constitution Committee

  • Select Committee chaired by Baroness Jay 
  • March 2012
  • recognised some progress, BUT:
  • targets should be set if progress is not made within 5 years
  • judges should have more flexible working practices, career breaks and part-time posts on bench
  • 'tipping break' provisions should be used
  • 1/20 judges is non-white
  • less than 1/4 is female
  • greater commitment to encouraging applications from lawyers who are not barristers
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Reforms: Crime and Courts Act 2013

  • 'tipping point'
  • statutory duty for Lord Chancellor and Lord Chief Justice to take such steps as they consider necessary to encourage judicial diversity
  • removes disincentive to appointment of part-time senior judges by providing for exisitng statutory limits on number of HC and CA judges to be calculated on basis of full-time equivalents
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Diversity in solicitor profession

Black Solicitor's Network

  • produced Diversity League Table
  • looked at disability, ethinciity, gender and sexual orientation
  • over 5 years, representation of women and ethnic minority solicitors has improved
  • proportion of ethnic minority partners in law firms is increasing
  • 50% trainees are women, 18% of partners are women

Law Society's Diversity Charter

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Old Boy's Networks - Sex

Old Boy's Networks, Family Connections and the English Legal Profession (2012)


  • 1st female Lord of Appeal in Ordinary appointed in 2004 -- Baroness Hale
  • Hale is first and only female Justice of SC
  • increases in females working as solicitors and barristers -- much faster rate of increase for solicitors
  • at current rate, parity of sexes: solicitor - 5 years; barrister -  26 years
  • bar deters women through its structure
  • solicitor profession is more appealing
  • women under-represented in private practice - judges traditionally appointed from private practice - indirect discrimination against women
  • parity of sexes in QCs will not be achieved this century at current rate
  • traditionally HC judges appointed from QCs -- barrier to acces for women
  • consideration should be given to appointing HC judges other than from QC exclusively
  • only 2% of HC appointments since 2006 have at some time been English solicitors
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Old Boy's Networks - Education


  • QCs appointed since 1965, only 19% state school -- only 15% of judges
  • Clarendon schools
  • HC and CA judges educated in state sector remains consistently under 32% since 1965
  • most of the period not a single Lord of Appeal in Ordinary who was not an Oxbridge graduate
  • better diversity in solicitors -- suggests more judges should be appointed from background of a solicitor
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Old Boy's Networks - Family


  • QCs and judges come from well-to-do establishment backgrounds --
  • 46% QCs and 61% judges fathers' from exclusively professional occupational groups
  • 21% QCs and 20% judges fathers' were either managers or company directors
  • some HC judges from more modest backgrounds
  • Hale - entry level discrimination
  • If HC judges continue to be recrutied almost exclusively from Bar then lack of socio-economic diversity will continue
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Justifying gender equality on the bench (1)

Difference-based arguments

  • importance of what women bring and how this will improve judiciary
  • if argument that it would raise quality correct then persuasive -- but inconclusive research on difference and no evidence of improvment
  • interpretations of difference depend on your approach
  • future of difference -- more or less?

Problems with impartiality and inconsistency

  • difficulty reocniling claim of difference in judgemnt with principle of judicial impartiality
  • difficulty that different decision making undermines consistency - unfairness at individual level

Problems of essentialism -- what is particular about women's identities and interests -- more similarities in socio-econ; education; successful grads; relatively wealthy; age

Strategic dangers -- assertion that women have paritcular way of practising law recalls old myths that threaten to establish new categories of women's work -- slide from difference to superiority

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Justifying gender equality on the bench (2)

Equity argument -- inherently unfair that men enjoy near monopoly of judicial power


  • problems of translating straightforward and uncontentious principle into practical basis for change
  • arguments of unfairness against affirmative action


  • rethink traditional definition of merit -- SA example -- selection criteria including diversity as a collective requirement of competence and quality of 'potential' taken as criterion of merit

Advantages -- flexible -- not dependent on what female judges may or may not do

Weakness -- more concerned with interests of participants than society as a whole

Needs to be supplemented by legitimacy argument

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Justifying gender equality on the bench (3)

Legitimacy argument 

Basis of legitimacy of judiciary

  • quality of decision making
  • demonstration of fair and impartial justice
  • (recently) composition

Acceptable category of exclusion is one which limits a peron's ability to do the job well 

Public confidence

  • should see people like themselves in judiciary
  • marginalisation
  • idea that judiciary serves wealthy, is remote and out of touch, and lack of confidence in fairness of hearings are all problems
  • strong argument -- easier to persuade an institution a change in composition is necessary if its future well-being and authority is dependent on it
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Case studies

Supreme Court in 2013

  • 10/12 Oxbridge education
  • 1 woman
  • All white
  • All old

Linda Dobbs

  • first and only BME to be appointed to senior judiciary
  • following her retirement from HC, there are no BME women judges in senior judiciary

Council of Europe: European Judicial Systems (2012)

  • gradual feminisation
  • only Azerbaijan and Armenia have lower ration than England and Wales
  • 23% judges = women in E&W
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