Comment

Lord Sumption’s take on ethnic diversity is as disappointing as his approach to gender

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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

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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]

21 Comments

Guru nana

This is just ant-luvvie click bait…..(and I fell for it.)

Normal person: ‘People who have the ability will get top jobs.’
Human Rights Luvvie: ‘It’s all an evil conspiracy against anyone who is not white, male and middle class…..like I am,,,(whoops).’

(24)(5)

Guru nana

…anti-luvvie.

(although ant-luvvie is funnier in a surreal way).

(1)(1)

Anonymous

I never understand this insistence that white men can never comment on the lives and experiences of women and/or people of colour (while women and people of colour are, of course, apparently able to comment authoritatively on the lives and experiences of white men). This is not a self-evident truth, and I have never seen a satisfactory explanation for this being an undisputed fact.
One is not imparted magical technical knowledge from the universe upon being born female and/or minority. Race and/or sex is irrelevant; Why is objectivity held above all else in every other matter but this?

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StickingMyNoseWhereItAintWanted

i don’t think anyone can safely comment on the experience of another

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Anonymous

Agreed, although by “commenting on the lives of another” I meant in the context of a legal/employment assessment.

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Anonymous

Nobody’s suggesting that it automatically follows that if you don’t share Lord Sumption’s gender, class or social advantages you’re a better human being. However you are likely to readily access more than one perspective as part of your life for this reason. Women and ethnic minorities have to understand white upperclass male experience because it’s the language of the ruling class. White upper class men don’t have the same need to understand the experiences of those who are different from them and frequently don’t make the effort. Lord Sumption being a case in point.

(6)(6)

Quo Vadis

The “glass ceiling” didn’t stop you being appointed a QC, did it? Neither did it stop the 20.5% of pupils who were recorded (in 2011, the last time the data was released) as being of ethnic minority background. Note that the latter figure is significantly in excess of the 13% of people who identified themselves as being of an ethnic minority background in the 2011 Census.

The reason the Bar as a whole remains unrepresentative is because the changes which have improved access to the Bar for women and ethnic minorities are comparatively recent. It takes 40 years to grow a QC – more for a Judge. If you want to recruit someone for high judicial office, you are looking at a pool of people who were qualifying and building their career when things were very different.

The ‘elephant in the room’ is affirmative action. We could decide to only recruit women, or people of ethnic minorities, until the proportions of either match those in wider society. But to do so would fundamentally compromise the principle that cases should be heard by the most able and experienced judge, regardless of the colour of their skin or the configuration of their genitals.

(31)(5)

Lord Dyson

Hear hear. I am quickly beginning to feel that your observations are some of the most astute in the comments section. More of these please.

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Guru nana

I think we need quotas so that 75% of all human rights QCs and judges are luvvies.

It’s the only way we’ll ever restore balance to the evil patriarchal system that is clearly among the most corrupt and unfair legal systems in the world, and perhaps even worse than Belarus and Zimbabwe.

(3)(4)

Virtue Signal

It’s going too far to say it takes 40 years to grow a QC, most seem to be impossibly young these days, with the number of applicants over 50 being recorded as if they represent some minority group, but otherwise this is just luvvie click-bait, the narcissism leaps off the page from the first line – “the angry reaction to Lord Sumption’s now infamous Evening Standard interview” – sorry, what “angry reaction”? A few Tweets do not represent a public outpouring of outrage. The fact that The Lawyer was able to post a lengthy article the very next day to ferment anger (unsuccessfully, judging by the comments on the article) merely shows that social justice warriors are well organised.

The allegedly “forgotten list” of slights suffered by female barristers is something exhumed from the 1980s or earlier; “the senior male barrister who takes advantage of his seniority to make inappropriate advances to young female barristers” – this sort of thing has not happened in any serious set of chambers for decades. Sumption was a member of Brick Court, not a character from “Silk” or “North Street”. The news that the current head of chambers at Brick Court is a woman does not seem to have reached the more obscure corners of the Bar. As to the rest of the litany of slights, they can happen to anyone whose face does not fit with the senior clerk, irrespective of ethnicity and gender.

(4)(3)

Not Amused

“It’s going too far to say it takes 40 years to grow a QC, most seem to be impossibly young these days, with the number of applicants over 50 being recorded as if they represent some minority group”

So you agree that Sumption’s ‘it’ll take 50 years’ point is wrong.

I’m afraid I too dislike narcissists, virtue signallers and luvies (let’s just call them “the left”). But ultimately there is a point here that Sumption is probably wrong and that it is irresponsible and unhelpful of him to be probably wrong in public. Particularly given his past involvement with the Judicial Appointments Committee.

We don’t have to be polarised in life. We can dislike the left without automatically assuming that an issue one of them raises is wrong.

I think you are right on the 40 years point. But that means I look and I see women and BME lawyers born in the 70s. Attending uni in the 80s/90s and haven taken silk, made partner, made professor or been appointed to the bench. I see them and I think we can put them in the SC – and that the appointment system which is currently blocking them is probably broken.

(4)(4)

Anonymous

Wayne Jordash QC’s article is a masterclass in how to say nothing at all in a lot of words.

My position is as follows. The judiciary is currently dominated by white men because the candidates all come from the senior legal profession – which is currently dominated by white men.

This is not desirable. Ability is randomly distributed throughout the population (as Lord Sumption puts it). Thus, there must exist, in the population, black and female individuals who are better qualified than some of the white men currently serving in our judiciary.

We change this by making the legal profession open to all people. This we are doing. The process of obtaining pupillage is far more meritorious than it used to be. You can see this by going to Chambers’ websites and looking at the ethnicities/genders of barristers called in the last five years. There is far greater diversity amongst these barristers than there used to be. This is a good thing, and I welcome it.

Inevitably however, it will be 20/30 years before people entering the profession now start going to the Bench. Thus, it will take time – without positive discrimination – before we start to see the same sort of diversity within the judiciary.

So should we have positive discrimination? In my view, no. The best candidate should always be chosen. If the best candidate happens to be a white man, so be it. If the best candidate happens to be a black woman, so be it. To hold otherwise is to impose a different form of discrimination and unfairness into the system, which does not solve anything.

If Wayne Jordash QC knows of any problems with the current recruitment process which cause the selectors not to choose the best candidate, then let him present them. If they exist, I will happily support stamping them out.

(21)(1)

Pink Torpedo

Do you know what’s the difference between Lord Sumption and Mr Wayne Jordash QC?

No one has ever heard of Mr Jordash. His comments will dissipate like flatulence in the wind, leaving no trace. Sorry bro.

(17)(5)

Not Amused

These are extremely difficult issues. There is however something that is not quite right in the current make up of the Supreme Court. It seems to me that the complete absence of a second woman since 2004 and the total absence of a BME judge just isn’t on.

I assume the argument by the Supreme Court is/was “we have to wait until we have really good applicants”.

Well, isn’t the problem with that argument Jonathan Sumption himself? You see while the candidates for the SC only came from the Court of Appeal it was at least plausible that the failure to secure women and BME SCJs was all down to the CoA. I say ‘at least plausible’ because I, personally, appear to have noticed far more outstanding candidates in the CoA than the Judicial Appointments Committee has noticed.

Following Sumption the candidate pool is no longer restricted to the CoA. It now includes every QC, Partner, Judge and Academic. Hmmmm.

As I gaze around that exceedingly wide pool of candidates, I appear able to identify quite a few names who are, in my opinion, just as good as the current SCJs (I maintain there are such candidates in the CoA even if others are blind to them).

At that point, with a huge pool of extremely talented BME and women candidates, at that point, Old Crazy Hair himself tells me that it will still take 50 years? I’m afraid that wants for credulity and seems to me like a statement he should retract.

(10)(3)

The Bar Necessities

I say ‘at least plausible’ because I, personally, appear to have noticed far more outstanding candidates in the CoA than the Judicial Appointments Committee has noticed.

Out of interest, who you would take from the current crop of female CoA judges?

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Not Amused

We live in a world in which we have been completely unable to get a second woman in to the Law Lords, then SCJ, for 11 years. Or to get a BME judge in at all. In those circumstances I simply will not even consider risking the career prospects of any woman lawyer or BME lawyer by naming them. Call me paranoid if you want to.

What I think we should do is agree in principle that Sumption is not and can not be a unique human being. That, in principle, there are or must be women lawyers and BME lawyers who are like him in that broader pool of available QCs, Partners, Judges and Academics. That as we have quotas for Scots lawyers and NI lawyers, it wouldn’t kill us to conduct a deliberate competition/attempt to identify some BME and women candidates who we consider to be ‘Sumption-like’ and to appoint a tiny number of them to the SCJ (we need not even reduce the current crop, nor wait for places, we could simply increase the number of SCJs).

It wouldn’t break the world. Sumption’s own appointment was revolutionary and the sky didn’t fall in the first time he was wrong or found himself dissenting. In time I’m sure that actual numbers of women and BME judges could well rise above these minimum figures, but currently, as a citizen, my SC looks broken and I think it needs this action in order to fix it.

(8)(1)

Dinah Rose QC

Dear Not Amused,
It is great to read your thoughtful, measured comments on this thread. Thank you for taking the time.

Dinah

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Lord Lyle of the Isles

if we simply barred women from the profession like we used to back in the good old days, all would be just Tickety-Boo.

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Anonymous

Women on the highest courts: 3 of 9 (United States); 2 of 5 (New Zealand); 3 of 7 (Australia); 4 of 9 (Canada); 2 CJs among them (New Zealand and Canada), 1 judge appointed directly from the bar (Canada). UK: 1 of 12. Yes, well done; things can’t be changed faster, quality will suffer, yada yada: which means the UKSC must now be better than the rest. As one might expect, however, reading comparable judgments among jurisdictions doesn’t reveal anything particularly supreme in any one jurisdiction over another. Not really much basis for the current bout of business as usual talk from the UKSC boys’ club.

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Anonymous

Sorry – actually 2 women appointed directly from the bar: Kagan, a SG and Harvard law professor(USA), Cote, practising lawyer (Canada).

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Deed U No

The man is a bigot.

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