Wednesday 23 September 2015

Lord Sumption creates a stir

Update - Lady Hale 6th November 2015 - Read Lady Hale's lecture at Birmingham University regarding appointments to the Supreme Court 

See Litigation Futures 12th October 2015 - Leveson: Host of senior judicial roles about to open up to women

See The Guardian 1st October - Number of female judges in UK "snowballing" despite equality row

Justice of the Supreme Court, Lord Sumption, was interviewed by the Evening Standard (ES) - "Rush for Gender Equality with top judges could have appalling consequences for justice."  This post touches upon two aspects of the interview: (a) Gender within the judiciary and (b) Human Rights.  The interview (and I assume here that the ES report of it is accurate) created quite a stir and the Supreme Court issued a statement informing us that - "Some of Lord Sumption's comments appear to have been misunderstood" and referring us to a speech he gave in November 2012  in which his position is set out in detail.  The speech should certainly be read in full.   


The Evening Standard reported:

"One of the country’s most senior judges today warned that rushing to achieve equal representation for women at the top of the legal profession could inflict “appalling consequences” on the quality of British justice.

Lord Sumption, a Supreme Court judge, said he believed that the judiciary was a “terrific public asset” which could be “destroyed very easily” if the selection of candidates was skewed in favour of women.

He added that to avoid inflicting damage, campaigners for equality would have to be “patient” and suggested that it would need up to 50 years before the number of women on the Bench matched the total of men."

Achieving a better gender balance in the judicial ranks is certainly a serious concern and there has been some action to try to improve matters.  "Time for Equality" looked at the position across Europe and discovered that the UK does not figure well in the equality statistics.

"Diversity" is an even wider topic than simply the male:female ratio.  In 2012, the Lord Chief Justice issued a Diversity Statement in which he said that he and the Senior President of Tribunals were "convinced of the benefits of a more diverse judiciary" and they were "committed to supporting the development of the judiciary in ways that support greater diversity."  The statement continued:

"Appointment to judicial office is based solely on merit. The independent Judicial Appointments Commission (JAC) must, therefore, be able to select from the widest pool of candidates; and potential applicants must be assured that they will not be disadvantaged by factors such as ethnic origin, gender, disability, sexual orientation or background. They must also be confident that they will be treated fairly after appointment.

The judiciary is therefore committed, not only to encouraging suitable applicants to apply, but also to ensuring that principles of equality and fair treatment apply to all aspects of judicial life. It will therefore have regard to diversity in connection with deployment decisions wherever possible. It is also committed to developing the concept of a judicial career, as envisaged by the independent Advisory Panel on Judicial Diversity chaired by Baroness Neuberger in 2010 (the Neuberger Panel)."  (Link added).

Diversity Statistics are published annually by the judiciary and here are the latest.

Dr Steven Vaughan of the University Birmingham Law School published this excellent response to Lord Sumption's comments.   Dr Vaughan's response is a "must read" for anyone interested in this important topic.  He concludes: " ... the evidence suggests that women do not advance in the profession for multiple, complex, interlocking reasons and because of many and varied formal and informal barriers. “Lifestyle choice”, if it is relevant at all (and if it can be called a ‘choice’), is but one tiny part of what is going on."

Would "positive action" - (Note - I do not say "discrimination" - there is a significant difference) - improve matters?  There is a case for it - please see Diversity in the Judiciary: the case for Positive Action - (Kate Malleson - University of London - 2009).   Reasons against such action are set out in Lord Sumption's 2012 speech.

In 2014, writing on the Costitutional Law Group blog, Colm O'Cinnedie and Kate Malleson considered whether quotas for judicial appointment would be lawful under EU law and ended by saying: "Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law."  Whatever the EU legal position, the "solely on merit" criteria applies nationally as set out in the Constitutional Reform Act 2005.  The Judicial Appointments Commission may seek to obtain as diverse a pool of candidates as possible BUT selection from within the pool has to be on merit alone.

It is not clear to me whether such positive action would actually be generally welcomed by the legal profession and strong opinions either way are likely to exist.  Those seeking appointment to the judiciary would naturally wish to feel that their application was treated on their merit as a candidate and not on some imposed quota.  It may be that much can (and will) be achieved by addressing those "multiple, complex, interlocking reasons" and the "many and varied formal and informal barriers" of which Dr Vaughan speaks.  However, without some positive action, Lord Sumption may well be right in saying that many more years will elapse before true gender equality is achieved.

The UK Supreme Court blog has also taken an interesting look at Lord Sumption's interview.  The blog states:

"If diversity is truly valued there are many steps that could be taken to progress towards it at a quicker pace than Lord Sumption suggests and without risk of appalling results. Indeed Lord Sumption’s appointment provides a perfect example. Lord Sumption was the first appointment straight from the Bar to the Supreme Court and to the House of Lords before it, for over 60 years. Why not do it again? There are plenty of women at the senior end of the legal profession who could match Lord Sumption for intellectual ability and – who knows? – may even possess other qualities that he does not have. Why not use his appointment as a model and invite men to bear with us until greater diversity is achieved: show a little patience perhaps."

Update - 25th September - Legal Cheek - At last, Lord Sumption has a friend! Top female QC comes out in support of under-fire Supreme Court judge  where some views of Sarah Forshaw QC, based on a full reading of Sumption's 2012 lecture, are set out.  (A link to the lecture is near the start of this post).

An opposing view was published by The Guardian - Sumption encapsulates the law's sexism: only quotas can challenge male privilege.

For some further interesting thoughts see Working Theory - Being positive about judicial diversity (23/9/15).

On human rights:

The promised plans for OUR human rights have yet to be revealed by the government.  The Conservative Party announcement last year at Party Conference time seems to have indicated the general trend in their thinking.  In his interview with the Evening Standard, Lord Sumption suggested:

" ... that British courts could successfully protect citizens from oppression if the Government presses ahead with its plan to replace the Human Rights Act with new legislation. ..... this was because there was “room for different ways of doing things” across Europe and added that it was wrong to “assume that exactly the same way of protecting fundamental human rights” was needed in every European country."

No one has suggested that all European countries adopt a uniform system but they have to apply the European Convention since it is binding in international law on the State.  I do not see the UK government actually withdrawing from the convention because the political price internationally appears to be too high. A British (or maybe English?) Bill of Rights is promised.  I say "or maybe English" because there are difficult problems with the devolved administrations and those problems will not have been made easier due to recent events in Northern Ireland.  To apply the Bill just to England (or England and Wales) may be seen by the government as a possible way forward though it is hard to see why different levels of human rights protection should apply depending where in the United Kingdom you happen to be.

Could, as Lord Sumption suggests, the British courts protect the people from oppression?  On the basis of common law alone that would have to be seriously questionable but what about on the basis of applying a Bill of Rights?  That cannot be answered now since we have not seen even a draft of the Bill and, when we do, it would depend on what the accompanying legislation permits the judiciary to do.  A further issue will be the stance adopted by the judiciary toward the Bill once it comes into law.

Meanwhile, it is worth reflecting that the European Convention on Human Rights Act 1998 has been OVERALL highly successful and beneficial.  Dominic Grieve - former Attorney-General - spoke of this to the Faculty of Advocates in Scotland.  He said:

“... The Government has stated that it will publish a detailed consultation paper on its ideas for a Bill of Rights and our future relations with the Convention this autumn. I very much welcome this ...”

“…I rather suspect that in doing so, it will have to accept the overwhelming evidence that the Convention, when viewed in its totality, has been and remains today a success, arguably the single most important legal and political instrument for promoting human rights on our planet…I am convinced that if this matter is debated with determination and good humour, we will get the right answer at the end of the day.”

The full lecture can be read here.

For many, we already have the "right answer" - the Human Rights Act 1998.

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1 comment:

  1. I often get a bit of an "attitude problem" nowadays because on one hand I see a lot of people agreeing with 'welfare reform' involving deep cuts for disabled people, while not caring about their inclusion in the workplace, including the legal profession.

    So I feel very entitled to push aggressively for solutions like positive discrimination and quotas. The profession has had more than enough time to get equality, diversity and inclusion right, but prefers to remain delinquent.