In the coming months, we will be publishing a series of ‘module reviews’, providing a brief outline of our first-year modules at Newcastle University to help students get a basic understanding of each topic. In the month of September, we will be looking at the module typically labelled by most universities as ‘English Legal System’ but named ‘Legal Institutions and Methods’ at Newcastle.
In the final in this series covering the English Legal System, we will be looking at a topic that is increasingly prevalent at the moment, equality and diversity within the legal profession, with the Black Lives Matter movement receiving considerable (and much needed) attention in recent months. In particular, we will be looking at two key case studies: women in the legal profession, and judicial diversity.
Disclaimer: all information in these Module Reviews is taken from our own notes and research. Please do not cite this article in your own work.
Background & Key Terms
Equality = protecting people from being discriminated against on the grounds of a particular group membership (e.g. race, gender, religion, etc.)
Diversity = the need to recognise, respect and value people’s differences to contribute and promote an inclusive nature for all.
Discrimination = treating people differently, negatively, etc. without good reason or because of particular group membership. This can be broken down into:
Direct discrimination = being treated less favourably because of a group membership.
Indirect discrimination = where a neutral provision (e.g. a piece of legislation) is discriminatory or particularly disadvantages some people who share a characteristic (e.g. a law allowing stair-only access to buildings would indirectly discriminate those in a wheelchair).
Some arguments why diversity DOES matter in legal institutions:
In the workplace – a diverse workforce can offer a wider range of resources, skills, etc. providing a competitive edge for business. The Solicitors Regulation Authority (SRA) state diverse firms can identify barriers to development of talent and strengthen their reputation.
In society – arguably social institutions should better represent the reality of society, allowing for greater legitimacy and accountability. Legal professionals will have a better understanding of issues that they have experienced too (i.e. because of their race, gender, etc.)
As individuals – a lack of diversity results in exclusion and unwelcomeness, meaning minority groups are less likely to join the legal profession. This ultimately impacts upon the two previous points.
Some arguments why diversity DOESN’T matter in legal institutions:
Should not matter – everyone should be treated in the same professional manner. However, this is arguably an unachievable and idealistic scenario, as many people carry unconscious biases.
Best person for the job – sometimes, by chance, selecting the individual who is best for the job may not result in a diverse workforce; arguably firms must do what is best for them.
Case Study I: Women in the Legal Profession
Whilst women do now make up a large proportion of the legal profession, with women exceeding the number of men with practicing certificates in 2017 and making up over 67% of students accepted onto law degree courses as of 2016, it has not always been this way.
The First 100 Years project is a ground-breaking history project, documenting the progression of women in the legal profession in the century since the passing of the Sex Disqualification (Removal) Act 1919, which allowed women to enter the legal profession. Prior to this, women were often disqualified from even obtaining a law degree, as disputed in Bebb v Law Society (1913). Above is a brief timeline of events in the past 150 years which reflects the how the place of women has progressed in the legal profession.
Times have clearly changed since Lord Chancellor Finlay commented in 1917 that “I do not believe that the active practice of a profession is compatible with the proper work of a woman”; yet despite a so-called ‘gender transformation’ in the legal profession across the last century, there is evidence suggesting that men continue to dominate at the upper echelons, for example in law firm partnership or the judiciary.
Many argue for a principle called the ‘trickle up’ theory – in reference to women, this theory suggests that, as more women take up law degrees and enter the profession, they will naturally ‘trickle up’ to the top positions over time. However, despite large numbers of women taking up law degrees, making up well over half of those on degree courses, this has not translated into proportionate representation at the senior levels of the profession (Sommerlad et al 2010). This challenges the theory, suggesting that more must be done to ensure women reach the top of the profession.
One issue that can be attributed to the failure of the ‘trickle up’ theory is the ‘attrition issue’; this is used to represent the disproportionately high numbers of women (and also BME lawyers) who leave the profession before they can reach the top. This might be due to the expectation of women to begin a family, and the difficulty of juggling this with a career that demands so many hours. Furthermore, whilst entrance to a law degree may not be difficult for women, the law remains a stratified profession, meaning that even with a degree, actually entering the profession remains difficult for women due to the unequal distribution of opportunities.
Theories of Gender Equality in the Profession
In terms of the theories behind gender equality in the legal profession, there are two key principles at play:
‘Human Capital’ Theory – this theory focusses on individual choice and strategies, arguing that employers will naturally act in the best financial interests of the firm and the best candidates will succeed in the neutral market, irrespective of what their gender is. If hiring a male candidate means a better financial upturn and higher quality of work for the firm, then this is what the employer will do.
‘Barriers to Diversity’ Theory – conversely, this theory focusses on how the organisation and structure of the legal profession can limit access and present problems for some groups. Some key examples include:
Expense of training – whilst cost of fees for a law degree and training courses are mitigated by loans, scholarships, etc., they arguably fall short of what is needed to encourage greater inclusivity and act as a deterrent for those who are not well off enough to endure the cost, in particular with the risk of completing all training but failing to find employment.
Attrition – as discussed above, women tend to leave the profession at a greater rate than men, for example due to family responsibilities or the fact that women are more likely to pursue employment in non-legal settings.
Gender stereotypes – these may deter women from even applying to jobs or promotions out of fear that they may face discriminatory stereotypes. For example, women might fear being asked about whether they are planning to start a family, out of fear that motherhood could be viewed as a reduced commitment to their career.
What is being done?
In spite of the above, there are clear steps being taken to mitigate the issues surrounding gender equality within the profession, including:
Pressure from clients – private and public sector clients may request diversity data from potential legal advisors as part of the lawyer appointment process if they wish to have a diverse team of lawyers.
Pressure from professional bodies – the Law Society and SRA carry out diversity monitoring within the profession
Pre-employment outreach – firms are increasingly seeking to encourage individuals of different groups to enter the profession, for example through female-only events
In-firm mentoring and support schemes – for example, mentoring schemes and networks
Changes within the organisation – movements such as culture change and flexible working hours to advocate for women
Awards for best practice – firms may win diversity awards from external bodies, giving them credentials within the market and further encouragement to promote equality.
Case Study II: Judicial Diversity
Similarly to the case of women in the legal profession, when it comes to judicial diversity, there is a historic lack of balance within the profession, with some evidence that the position is changing in more recent years.
Some Key Figures
As of 2018:
· 24% of Judges of the Court of Appeal and High Court were female
· Only 8% of judges identified as BME
· Since 2014, there was a 5% increase in female judges
· Only 4% of Magistrates were under 40, with 55% over 60
As of 2015, the number of women sitting in each court:
· Court of Appeal: 8 out of 38
· High Court: 21 out of 108
· Supreme Court: 1 out of 12
The Failure to ‘Trickle Up’: Accounting for Differences
Whilst some of the theories that apply to women in the legal profession (see above) can be translated to diversity in the judiciary, there are some reasons that apply specifically to judges.
One of these is the nature of the appointments process. Up until the Constitutional Reform Act 2005 made sweeping reforms to the judicial appointment process, candidates were selected by the Lord Chancellor, previously the head of the judiciary, through a ‘tap on the shoulder approach’. This meant that the selection of judges came from one person, giving way to a huge amount of bias and prejudice. However, the Constitutional Reform Act transferred much of the Lord Chancellor’s role to the Lord Chief Justice, as well as establishing the Judicial Appointments Commission (JAC), an independent body to carry out the selection process, with a statutory duty to promote diversity under s.64 of the Act.
However, even with this significant improvement to the system, problems remain; the duty of diversity relates only to applications, not appointments under s.63, meaning those who make it past the application stage may not necessarily be appointed based on diversity. The process also has an overriding duty of selection based on merit, again limiting the encouragement of diversity. Beyond this, the JAC can only appoint candidates who put themselves forward; with the judiciary facing what Lady Hale describes as “an uncomfortable truth” of much of its personnel being of such similar racial, educational and socio-economic backgrounds, it is understandable that many candidates from minority groups could be deterred from even applying out of fear of rejection or failing to 'fit in'.
‘Who Judges’: Should it Matter?
Outside of accounting for the lack of diversity in the judiciary, there is an ongoing debate over whether who judges even matters.
The Merit Argument is that positive action to promote diversity, such as instilling quotas in the judiciary, limits the idea of appointing judges based upon merit, and that surely an appointee must be the best person for the job, not a weaker candidate who is selected merely to fulfil a quota. This has been promoted by a number of members of the judiciary, including Lord Falconer (2005), who stated “we won’t have quotas”, and Lord Neuberger (2013), who cited “the British people are entitled to have the best judges they can get…and I think it is slightly patronising in our field to have a special place for women.”
The Equality Argument too casts doubt on positive action such as quotas. It focuses on the idea that the dominant legal framework of both domestic law and (now of slightly fading importance) EU law promotes equal treatment. Therefore, by selecting candidates based on their race, gender, religion, etc. and failing to choose well-qualified candidates outside of the ‘quota group’, we would be discriminating against those well-qualified candidates for failing to be part of a minority group. Whilst Lord Sumption has argued that having quotas would “dilute the quality” of the judiciary and deter some of the best candidates from applying, Lady Hale (2013) fought back at this by arguing that the judiciary would be better off without the “prima donnas” who would be deterred from applying due to not being part of a quota and stated that “no-one is suggesting that people should be appointed who will not be able to do the job and do it very well.”
Conversely, there are many strong arguments in the case for increasing diversity in the judiciary; many can be found in the arguments for diversity in the legal profession as a whole at the start of this post. However, one key argument here is that the legitimacy of the judiciary is dependent on public confidence. Having a judiciary that is unrepresentative of society diminishes the confidence of the public as they may not relate to or understand issues that others are going through; a white judge who has never encountered racial discrimination, sitting in a racial discrimination case, may fail to empathise with the person bringing the case, and thus may lose a lot of public confidence if they were to make a decision against that person. Ultimately therefore, having a judiciary that is more representative of society arguably improves the overall quality of decision-making by providing a judiciary that can better understand and empathise with the decisions that are brought before them, as opposed to a more homogeneous judiciary, which may be hardened to the struggles of people from minority groups and have a more toughened approach when making decisions regarding those people.
Therefore, whilst the quota system is somewhat problematic, there are certainly benefits, so much so that there has been much consideration of the alternatives to a quota system in order to promote diversity within the judiciary. One of these is a ranking system, where candidates are simply ranked best to worst, based on a range of factors that include both merit and diversity. However, this is somewhat limited in terms of promoting quotas in that it cannot predict the proportion of top candidates in a quota group, and with merit arguably being a subjective concept, often merit may cause candidates to rank higher than more diverse ones. A threshold system has also been put forward, laying out a pre-determined quality that all candidates must reach before being appointed, and once this reached, diversity factors can be taken into account. However, this arguably fails to deal with the Equality Argument, meaning some may see this method as discriminated against better-qualified candidates.
This is just a basic outline of the issues of equality and diversity within the justice system, providing a starting point for your studies on these topics.
This is also the concluding post in the English Legal System series. Next month Holly Hoy will be carrying out the module reviews for Contract Law.
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