Monaghan_K_4_145029Yesterday the London Evening Standard published an interview with Lord Sumption on the subject of gender equality in the judiciary (Rush for gender equality with top judges ‘could have appalling consequences for justice’). This is not the first time Lord Sumption has commented on the under-representation of women and ethnic minorities on the Bench. In November 2012, Lord Sumption delivered what he described as Home Truths about Judicial Diversity for the Bar Council’s Law Reform Lecture. Much like his lecture, Lord Sumption’s comments in his interview with the Standard have been subject to widespread comment – particularly in the social media and especially among the Twitterati – much of it critical. As one online contributor puts it: “Fast-tracked judge complains about fast-tracking of judges.” To that could be added the words of Dinah Rose QC on Twitter: “Here’s what fascinates me: what does Lord Sumption think qualifies him to make these comments? Social scientist as well as a historian?”

The statistics are regularly reported and the detail won’t be repeated here but as is well understood the key area of concern for those wanting a diverse judiciary is the constitution of the senior judiciary where women and ethnic minorities are a minority (in the latter case, a tiny minority) and, of course, the higher up one gets, the smaller the minority. In his 2012 lecture, Lord Sumption told the audience that implicit in the idea that diversity would be improved if the appointments process was improved, “was the assumption that there was a large untapped reserve of potential talent among women and ethnic minorities, comprising people who were at least as good as those who were actually being appointed, but who had been overlooked or devalued”. Not so according to Lord Sumption. Whilst the ambition and talent necessary is randomly distributed through the population, a diverse judiciary “will happen only over a considerable period of time” – 50 years in his view. In the meantime, according to Lord Sumption, we can be sure that recruitment from the higher echelons of the legal profession has served us well, albeit that the price we have had to pay for it is a less diverse judiciary than most of Europe. Merit and diversity, he says, are only compatible over a considerable period of time. Not now.

Lord Sumption picks up the subject again in his interview with the Standard. Assuming this is an accurate report, Lord Sumption told the paper that he believed that the judiciary was a “terrific public asset” that could be “destroyed very easily” if the selection of candidates was skewed in favour of women. Well that’s clear enough then.

He repeats his view that it will need up to 50 years to achieve equality on the Bench and tells equality campaigners that they will have to be “patient”. To reassure the impatient, he rubbishes claims that the law is run by an old boys network but instead suggests that the lack of women judges is due, at least in large part, to “lifestyle choices”.

He also expresses concern that to move too swiftly towards diversity could have “appalling consequences”. Such moves, he tells us, could make “male candidates feel the cards are stacked against them”. The current position certainly would not induce any such alarm.

Though women have outnumbered men as law graduates for twenty years plus, they make up (at the last count) only about 19.5% of the High Court Bench, 19% of the Court of Appeal Bench and number one in the Supreme Court. Nor is there any obvious room for optimism among women lawyers: in July 2015 it was announced that 4 new Lord Justices were to be appointed – all are white men (lifestyles unknown). This surely is enough to make women in the profession think the cards are stacked against them and that time alone won’t heal. And why should we be patient? There are many things that could be done to increase diversity in the judiciary, especially as waiting doesn’t appear to get us anywhere. Introducing quotas or positive discrimination are two connected possibilities. Many people balk at positive discrimination but it has worked well for men. Or we could reward (or score) characteristics that will introduce greater diversity when selecting candidates – so making diversity a factor but not necessarily a decisive one in the selection process.

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.

Because it’s not lifestyle choice that will make the difference: it’s opportunity.

Karon Monaghan QC, along with Sir Geoffrey Bindman QC, published a report on judicial diversity in November 2014 and it can be found here.

The Supreme Court issued a statement following the reaction to Lord Sumption’s article:

“Some of Lord Sumption’s comments appear to have been misunderstood. The full quotes make clear that he believes that increasing diversity at all levels of the profession is important, and that the range of hidden barriers to improving diversity – particularly of the judiciary – present a very complex problem. Nowhere did he try and reduce this to a simple question of ‘lifestyle choice’. The concern he expressed was against introducing any form of positive discrimination to the judicial appointments system without careful analysis of the full range of potential consequences.

“Lord Sumption’s position is set out in detail in a lecture he gave in November 2012.”