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Diversity quotas: would they be legal, would they make a difference?

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Breaking the dominance of the MAWM (middle-aged white man) is even harder than some campaigning groups realise, says Judge John Hack

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How diverse — socially, ethnically and sexually — is the UK legal profession?

It is a contentious question that can polarise opinion as quickly as standing at a pub bar in Manchester’s Deansgate and casually enquiring of a fellow drinker: are you City or United?

Many view the legal profession — especially at the rarefied levels of City law firms and Chancery chambers — as still mainly the preserve of a big beast known as MAWM, or middle-aged white man. And that view is not without justification: walk into any Square Mile global legal practice or stroll round the Inns of Court, and you’d have to be pretty unobservant not to notice a significant number of MAWMs lording it in their natural habitat.

However, that demographic is changing — just not quickly enough for some. And the question is: what, if anything, can or should be done to make the legal profession more diverse?

Every so often an answer is mooted that often takes the form of the word “quotas”, which is then tempered with “targets”. Last week, the Black Solicitors Network (BSN) became the latest to invoke the Q and T words, predictably triggering first headlines and then hand-wringing in the legal profession specialist press over the ill and the potential cures.

Both the Law Gazette and the website Legal Futures pointed to a section of the BSN report which claimed:

“…while the economic fundamentals are working in the right direction, the present pace of change seems unacceptable. Firms and chambers need to act now, as there is an increasing willingness to consider the ‘nuclear’ option of quotas”.

But of all people, lawyers will be keenly attuned to the question of what the law itself has to say about that “nuclear option”? Attempts to force law firms and chambers to recruit a specified percentage of any variety of applicants would certainly be destined to fail quickly and spectacularly at legal challenge.

And why single out the legal profession for diversity quotas? What about other professions — should not medics, accountants, teachers, architects, the clergy, bakers and candlestick-makers also be subject to a quota regime if one is concocted for and imposed on lawyers?

Those mooting the idea of quotas realise this difficulty, which is why they qualify the discussion by invoking the possibility that legal profession regulators could publish targets. Presumably, this would involve the Solicitors Regulation Authority and the Bar Standards Board gently suggesting that law firms and chambers should aim to reach a certain percentage of gender, ethnic and social diversity in their recruits.

Admirable enough, but apart from making the right noises, would law firms and chambers really take any notice? They are businesses, after all, with law firms especially driven by the bottom line. And chambers are still a collection of technically self-employed individuals, making the imposition of blanket recruitment targets even more difficult.

Moreover, in relation to ethnic and social diversity, any target scheme would have to take into account at times quite sharp regional demographic variations. The ethnic components of London, for example, are vastly different to those of Penzance.

And that’s before addressing the sticky question of ethnicity itself. Some UKIP politicians may struggle with this concept, but all of us in this island nation are a mongrel collection of all sorts of European and wider backgrounds, making the specific definition of an individual’s race and ethnicity a quagmire of interpretation.

All of which paints the backdrop against which many in the profession maintain that not only would quotas be unlawful, but targets would be impractical — and indeed, almost immoral themselves.

As one commentator on the Law Gazette website writes:

“Why should we have quotas and targets? What happened to giving the job to the best candidate? I want to employ the best person for the job and don’t give one hoot what race, gender, colour, creed and sexuality they are as long as they are good at their job and willing to work hard. I would hate to be given a job not because I deserve it or the company think I will be good, but just so that they can tick a box to show diversity.”

Others maintain that approach is too simplistic, with a commentator responding:

“You are wilfully refusing to recognise the social factors in selection. It is too simplistic to focus on ‘quality’ and ‘industriousness’ as these are not entirely objectively measured in practice.”

And indeed, it can be argued that of all roles in life, the legal profession should strive hard to reflect wider society. The factors explaining the lack of diversity in the legal profession are well-rehearsed. And while it may not provide much comfort for those campaigning for faster equality, evolutionary movement is positive, not least at the top of the profession.

Legal Cheek’s own recently-published research shows that 13 of the UK’s top 60 firms have a higher percentage of women partners than the BSN average figure for the 41 law firms of all sizes it surveyed, which stood at 25.4%. Indeed, top of the gender diversity tree in the City is pukka international private client specialists Withers, where nearly half the partners are women.

And 20 of the top 60 firms in the Legal Cheek survey outstripped the BSN survey’s average figure for ethnic minority partners of 5.7%. The top firm in that category being Mishcon de Reya, where one in five of the firm’s partners has an ethnic minority background.

Ironically then, the City of London — the very watering hole and stomping ground of the big beast MAWM — is leading the way in gradually diversifying the legal profession.