Friday, 4 February 2011

Today's bad word - "diversity"

On Thursdays the Times newspaper has a Law section containing snippets of legal news and gossip, the profile of a lawyer who has been involved in a recent newsworthy case and a main article dealing with an issue likely to be of interest to members of the legal profession. This week's article highlights concerns expressed by the Lord Chief Justice (the conveniently named Lord Judge - incidentally, we also have a Court of Appeal judge with the surname Laws) that too few solicitors from high-powered city firms are applying to sit as judges and too few people of high quality are attracted to criminal and family work because the pay is poor.

The article appears under a sub-heading reading "The Lord Chief Justice is worried about the diversity of the Bench" and was illustrated with a column listing the number of women and former solicitors sitting at the different levels of the judiciary. I cannot speak for Lord Judge but I think both the sub-heading and the illustrative numbers are misleading. Not only can I not speak for Lord Judge but I do not know him personally and can interpret comments he made only against the background of his well-known reputation at the Bar. Somehow I doubt that "diversity" of itself is his desire. Indeed, I think it impossible that diversity could ever be his desire although it could be a pleasant consequence of the system of judicial appointments. My point is about the whole concept of "diversity" and the way it is interpreted in the article in the Times because I believe it has been misinterpreted.

Let's take a heart by-pass operation as an example of what I mean. If you need one, what would you expect of the surgeon assigned to carry out the procedure? Well, that's simple, you would expect him or her to be at least basically competent at heart by-pass operations. That's all. Male or female, dusky-hued or blotchy pink, old or young - all irrelevant; they should be able to do the job. Then let's ask who should be appointed to a vacant cardiac surgical post. That's also simple, it should be the applicant who is best at the job. Male or female, dusky-hued or blotchy pink, old or young - all irrelevant; ability should be the only guide. It is only by appointing the people best able to do the job that the customer (patient) can have the greatest chance of being sliced and spliced by someone who is likely to do it well.

So also with the judiciary. Different types of judges deal with different types of work, some of which require a vast amount of technical knowledge of relatively narrow fields of law and others of which are more concerned with the management of evidence. If the Chancery Division of the High Court needs a new judge because an established expert in company law has retired or been promoted it would be no surprise to find an expert in company law appointed to fill the gap; you would not find a criminal law practitioner being appointed because, no matter how brilliant he or she might be in their chosen work, the skills and knowledge they have developed in practice would not make them suitable for such a specialist judicial post. The only question should be "which of the applicants will do the job best?"

Whether the result is that heart surgeons or judges comprise the same proportions of men and women, dusky-hueds and blotchy pinks and fortyishs and sixtyishs as the population as a whole is neither here nor there.

That is not to say we should not ask "why are so few women / ethnic minoritists applying to be judges?" Of course that question should be asked because there might be something about the application prodecure or the judicial work itself which deters suitably qualified people and that the obstacle is especially high for women, the darkly pigmented or, indeed, any other category of potential applicant. The only way to deal with such an issue fairly is to amend the procedure or introduce different working practices for judges so that suitably qualified people of all types can apply and know they are competing on a level playing field. This is to approach the issue of "diversity" from an inclusive frame of mind. You keep the quality standard and do what you can to ensure as many people of the required quality are involved, no matter who they are.

It is a different thing entirely to start from the premise thay we must have a judiciary that is "diverse" and treat that as an end in itself rather than a desirable consequence of a fair recruitment system that always appoints the best candidates regardless of any minority label that some might wish to attach to them (or that they might wish to attach to themselves). To treat diversity as a criterion for selection is, necessarily, to exclude some better candidates because they carry no such label and that is a worse vice.

One reason Lord Judge is the Lord Chief Justice is that he is a hugely fair man. Over his long career in the law there has never been a hint that he would treat someone less fairly because they happen to be female, dark-skinned or have non-standard sexual tastes. Nor would he treat a blotchy-pink heterosexual male less fairly than anyone else. He is, in my view, someone who looks on "diversity" of the judiciary as a desirable end of a selection process based purely on merit. Indeed, in order to be based purely on merit it is necessary for the process not to discriminate against anyone by reason of them falling into a numerical minority for one reason or another.

Having spent some time mulling-over the column of judicial statistics, I am hard-pressed to see its relevance. What it shows is that only 1 of the 11 Supreme Court Justices is female (actually it's 1 out of 12), 3 of 37 Court of Appeal judges, 16 of 108 High Court Judges, 87 out of 680 Circuit Judges and 110 out of 448 County Court District Judges (there are also 143 District Judges who sit in the Magistrates' Courts but no figure is given for the number of those who are female). On the face of these figures women could be said to be discriminated against; but who are the applicants who have been refused appointments because of their gender? Who are the potential applicants who wanted to apply but did not because the process was obstructive to women? My adult lifetime has been spent in the law and I have never met such a person. These numbers don't really tell us much.

There are all sorts of reasons why we have so few women judges. In order to gain an appointment it is usually necessary to have at least 20 years' experience and usually more, so what follows relates to those who qualified two decades and more ago. First, there are far fewer female lawyers than male lawyers. Secondly, the proportion falls as they reproduce and either leave practice for ever or take a long break to supervise the fruit of their loins and then return to work part-time. Thirdly, those who return to work full-time once the last speck of vomit has been mopped from the nursery floor miss several years of experience and feel that gap means they are not yet ready to apply. Fourthly, those who still have dependent children sometimes feel the relative lack of flexibility over working hours (and days) would be inconvenient. Fifthly, many are not the primary earner in the family and are not particularly career-minded. These points are relevant more to those who might be considered for positions as Circuit Judges and District Judges than to the high-flyers who would aim for the High Court bench but they are all derived from my own experience of the very many senior female lawyers of my acquaintance.

Before the Harriet Harman fan club pelts me with rotten tomatoes and chants "sexist pig, sexist pig, sexist pig pig pig" to the tune of the William Tell Overture, I must remind them of one thing. Female lawyers are a tough breed. They take their own decisions. That those decisions deprive simple Harriet of the statistics she wants is her problem not theirs. I know not whether the Times' legal editor is of the Harriet Harman school, but I do know that including bare statistics about the current numbers of female judges when discussing future judicial appointments is, at best, an irrelevance.

This whole exercise illustrates something about the bad word "diversity". In the wrong hands "diversity" means discrimination - discrimination of the worst type, discrimination based on pigmentation and gender. In the right hands it is a useful watchword against which to assess whether admission to certain positions is open to all regardless of pigmentation and gender. "The Lord Chief Justice is worried about the diversity of the Bench" is a classic formulation from the wrong side of the fence and does not match what Lord Judge said. He is definitely on the right side.


john miller said...

Two comments spring to mind.

It is the easiest job in the world to have diversity as your end goal. You just need to make sure you have an equal number of all the different coloured Smarties in the box. Your success is easily measured and easily achieved. It is the ideal State or State-fostered non-job.

Secondly, diversity is the fashion bows its head when confronted by need, but only when the needy are rich, powerful, or politicians.

During his tenure at Number 11, I always used Blair's bodyguards as a yardstick. Not a trace of sovietism or diversity crept into the selection process there. Burly male coppers to, er, a man.

H.R. said...

Stateside, "diversity" is being used to guarantee equality of outcomes, however our constitutional setup was to only guarantee equality of opportunity.
I'm American but I love visiting here because F.B.'s posts show the subtle differences as to why we are and always will be the American "cousins." Things are much the same both places and yet there are those odd differences, particularly the politics and the legal system.

My wife was born in London and her family still makes their home in Glasgow Scotland, though there were a few Englishmen that managed to snag the beauties from that family. (The Englishmen are well tolerated and generally treated decently by the clan.) My interest in the differences between us was piqued by family gatherings, but of course most of the talk is of family. So I visit here to get a little more in-depth look at the political, social, and legal differences.

Please keep posting, Mr. Fatbigot. It's always quality work.