I can’t lie, it was slightly disappointing to see comments in the press last week from Lord Sumption implying that there was no rush to introduce gender equality into the judicial profession. Given that only around 25% of judges are women and a rather woeful 21 out of 106 high court positions go to the fairer sex there have been plenty of voices speaking up (sometimes shouting) that actually there is a need for some sort of urgency here, or even just action of some degree. And not just with respect to women but also minorities who make up an even smaller proportion of the judiciary.
It’s not difficult to see that positive discrimination doesn’t have the greatest reputation, whether in the legal profession or beyond. But an interesting point that I read in one of the many responses to Lord Sumption’s public comments was that, while we balk at the idea of it now, it has actually served men extremely well for centuries. This is an interesting point. We don’t consider the status quo to have been the result of positive discrimination just the ‘natural order’ of things but the reality is that the imbalance in the judiciary – as well as across many boardrooms and meeting rooms – is the result of years and years of choosing the best candidate from a pool of mostly males.
Whatever your view on that, there is certainly a need for a new approach to the way that we recruit judges. Lord Sumption attributed the gender imbalance mainly to ‘lifestyle choices’ made by women within the profession, “The bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence, which is that the top of the legal profession has fewer women in it than the profession overall does.” It should be noted here that his representative did say that his comments had been taken out of context and he never intended to reduce the issue to one of lifestyle choice. However, that has done little to dampen down the furious responses to these comments, which do seem to imply that women can’t hack it.
It’s certainly a difficult question – and one that tends to incite highly emotional reactions on both sides. Regardless of whether Lord Sumption meant to say what he was quoted as saying there are some serious questions for the judiciary and the wider legal profession as to how to better accommodate women. Not just in terms of recruitment but adapting on a day to day basis to the very different demands faced specifically by a gender that makes up around half of the UK workforce and looking for ways to make this work. Although positive discrimination is always heavily resisted and elicits groans and moans, what if having more women in the judiciary actually improved matters? What if the status quo – the ‘frankly appalling’ working conditions Lord Sumption mentions – aren’t either the only, or the most effective way? Just saying…