By Rioghnach Theakston
On the centenary of women first being admitted as lawyers in the UK, Baroness Hale of Richmond discussed the importance of judicial diversity with Helen Mountfield QC, Principal of Mansfield College. Whilst it is important to recognise the progress made to date in advancing minority representation in the judiciary, especially in the higher courts, Baroness Hale also explained why increased representation on its own is not enough.
Given her background and legal career, Baroness Hale is herself in many ways an embodiment of the progress that has been made towards diversifying the legal sector in the UK over the last century. Born in a small village in Yorkshire, Baroness Hale went to a girls’ grammar school in nearby Richmond. Even before studying law at Cambridge—where she was one of only 6 women amongst over 100 law students—she noted that at grammar school only half the number of places were available for girls as for boys. Implicit gender quotas were also to be found at university: 21 men’s colleges as opposed to 3 for women. Baroness Hale was the first and youngest woman on the Law Commission, and the first and only woman on the Supreme Court for some time, before becoming its first female president in 2017. Thanks in part to her trailblazing example, women have represented over 60% of new entrants into the profession since 1990, and in 2017 there were more women than men practicing as solicitors. However, much still needs to be done to achieve parity. Women in law firms are still not making it to partner status in equal numbers to men: in 2018, only 28% of partners in private practice were women.[1] For both solicitors and barristers, the proportion of women continues to consistently fall as seniority increases.[2] In the legal profession, there has admittedly been progress from what used to be an iron ceiling—but a glass ceiling still remains.
Diversity at the Bar, and within the legal profession more generally, has been high up on the agenda for some time. However, examining why judicial diversity is essential is at least as important as identifying that it is an issue. In his 2012 speech ‘Home Truths about Judicial Identity’, Lord Sumption said that gender, race, class and background should not be treated as relevant to performance as a judge. When asked about her views on this, Baroness Hale pointed out that, although no one is inherently a better or worse judge by virtue of these factors, judicial diversity is still extremely important and should be treated as such. Whilst it is valuable for people to feel represented and listened to during their interactions with the legal system, Baroness Hale’s response centred around the need to increase diversity of thought. She highlighted the importance of a variety of different opinions if we wish to have a stronger judiciary with more balanced judgements that reflect popular opinion, as opposed to the views of a narrow, homogenous elite. Speaking of her own experience as a woman lawyer she pointed out that ‘There are cases in which the experience of being a woman, which is necessarily different from the experience of being a man, brings an insight into the case’. In cases she had been involved in surrounding violence, consent to sexual activity, and women bearing children due to negligently performed sterilisation, she felt that having a female voice at the table had been a key asset. In fact, she emphasised the direct impact of women and their ability to make the legal sector more receptive to female experiences, saying that ‘I was often able to persuade my colleagues to look at [the case] the same way I did’.
This point of going beyond representing a minority to actively persuading the majority illustrates a broader idea: the goal of incorporating women—and others marginalised by their gender, class, race, socioeconomic background, and other factors—should not be to merely have them in the room, but for them to actually have a voice in shaping the outcome of the legal process. With this in mind, Helen Mountfield QC pointed out that female and minority lawyers who are able to gain access to more senior positions should not be forced to identify with the story of the Little Mermaid: cutting off their feet and giving up their voices. In other words, doing whatever is needed to be like the boys. Clearly, meaningful judicial diversity is not only a question of broadening access to underrepresented groups, but of actually having underrepresented voices heard—two very different things. According to Baroness Hale, the first step towards this is to ‘acknowledge that it is a good thing to do’. She also quoted Benjamin Cardoso, an American jurist, who said, ‘out of the attrition of diverse minds is built something stronger than the individual parts’, and added that ‘a collective, collegiate court ought to be stronger for the diversity of views around the table’.
One way of ensuring that the views and voices of marginalised groups are heard, as opposed to their members merely being seen, is of course to have more routes to appointment for people of diverse backgrounds. Baroness Hale agreed on the importance of a fair appointments system, adding that this would strengthen the higher judiciary by bringing in ‘a diversity of ways of looking at how you confront a legal problem’. However, she also maintained that ‘The route we have at the moment is capable of identifying outstanding ability wherever it may be found. Whether it does so or not is another question.’ Baroness Hale pointed out that the current system of appointments is certainly better than the old ‘tap-on-the-shoulder system’, which went much further in excluding those who were able judges and lawyers but did not have the networks to know whose shoulders to tap on. Clearly, an open and transparent appointment system where people have to apply, measure themselves against certain criteria, and demonstrate they fit those criteria is much more likely to lead to people in the judiciary coming from a broader base. Still, assumptions remain about who is a ‘good judge’. Fundamentally, it is these attitudes that have to be changed if we are to tackle the root cause of why the judiciary is not more representative of the population it interacts with.
When asked what universities, and top universities specifically, can do to this end, Baroness Hale made three main points. Reflecting on her own experience with male entitlement when she went to Cambridge, she said that inevitably ‘There will be people who went to certain schools and come from certain sorts of backgrounds who take it for granted that if they work hard enough, they will get a place at an elite university.’ However, the important thing is connecting with young people from marginalised backgrounds and ‘persuading those young people to think of coming to Oxford or Cambridge and of these places as places they might like to be’. She lamented how so many of the young people who have the potential to succeed at top universities are put off by their schools or do not even dare to apply, given their backgrounds. When talking about the link between educational access and enhancing diverse perspectives in the judiciary, Baroness Hale emphasised the importance of university as a place where one is exposed to a variety of people who are not exactly like oneself, underlining ‘the opportunity it gives you to meet a wide variety of people and debate with them all sorts of issues of interest’ and added, ‘the more diverse your fellow students are, the more you will get out of that’. Finally, the discussion turned to the importance of lawyers of all groups supporting and encouraging each other and ‘not pulling up the ladder’. Helen Mountfield QC recalled a time when she had been giving a presentation as a young lawyer and was feeling very nervous. She spotted Baroness Hale in the audience, nodding at her and encouraging her. Baroness Hale later explained to her, ‘everyone needs someone who nods’.
The discussion with Baroness Hale was an extremely broad one, covering a range of issues and important legal questions. However, one of the key takeaways is that, a hundred years after women were first permitted to enter the legal profession, there have been great advances in female representation within the legal system—yet much, much more remains to be done. Above all, it is the diversity of voices and ways of thinking that should be encouraged and that contribute to a stronger, more representative judiciary. Broadening minority access is one key way of attaining this, but it is far from enough. Being at the table does not necessarily translate to having a voice at that table and empowering yourself and your community. Baroness Hale’s motto in Latin, which translates to ‘Women are equal to everything’ is an excellent one, and has gotten us far. A legal system which lives up to the motto, ‘We are all equal to everything’ is one that could get us even further. It is a motto that we should all work towards and that I, for one, hope to see enacted.