Legal profession and diversity

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

108,000 with practising certificates

Represented by The Law Society (trade union?)

Regulated by Solicitors' Regulatory Authority

Code of conduct

History

• 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?

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)

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

• 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

• 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

• '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

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

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

Sex

• 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

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

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

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

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

Limitations

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

Solutions

• 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

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

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