Lord Sumption is speaking at Middle Temple Women’s Forum in April. My hope is that he reads this first.
There is a saying on the internet that the ceiling isn’t glass, it’s a very dense layer of men. It applies to women vicars, women politicians, women in business and women lawyers. Despite some progress in the workplace, women are still not reaching the top and frankly women in all areas of working life are sick of waiting.
Even Baroness Hale is bored with the inability of the legal profession to handle talented women. This is not a gift to be quietly and patiently anticipated but a rightful reward for talented women who have dedicated their time to serious vocations. The working world is a poorer place without the breadth of knowledge and judgment and the breath of fresh air that women can bring to the higher echelons of every industry and profession.
The failure to support positive action by men at the top smacks of self interest and fear of change. Post war, the late Rose Heilbron KC was the first woman to win a scholarship to Gray’s Inn, the first woman to be appointed King’s Counsel in England, the first to lead in a murder case, the first woman Recorder, the first woman judge to sit at the Old Bailey and the first woman Treasurer of Gray’s Inn”. She would be shocked to hear that many women lawyers are still trying and failing to reach those finish lines.
There are currently 12 Supreme Court judges. Only one is a woman. In 2009 when the current Lord Chief Justice rejected positive action on judicial diversity there were 11 women High Court judges, compared to 98 men and 72 women circuit judges compared to 492 men. A House of Lords Constitution Committee published data to show that statistically this meant that in 2009, of a total of 3602 judges at every level, only 19.02% were women. In 2011 the number of judges had risen to 3694 with women at 22.30%. Even if it has improved a little since then – you do the math. This is real life, not an Aesop fable.
Slow and steady is not winning the race; there are fantastic women lawyers out there deserving of advancement and being overlooked. As Francis Fitzgibbon recently said on Brief Chats – there has been positive discrimination for men for centuries. It can’t be a surprise when the pendulum turns.
Broadcast history was made recently when Lord Neuberger was interviewed by BBC Radio 4. His opinion on the rule of law and the devastating effect of legal aid cuts was precisely and firmly put in ordinary language by an intelligent man who really understands the issues. One can’t help but hope that everyone understands how impossible it will be to challenge the State when all sensible protections are lost (access to justice, right to a fair trial, equality of arms by quality of representation etc ) and one can’t but think that those picking up the pieces in real life will be women.
Sadly, the erudite opinion of a man in exalted office was holed when he then failed to support positive action to improve judicial diversity. He (up there) is not alone: in November 2012 Lord Sumption gave a speech which was long on research and short on support. He suggested that equality in the judiciary would take another 50 years! Thus, having been head hunted from silk directly to the Supreme Court, he effectively pulled up the ladder before talented women silks could even get a look in. Women have to be recognised for their talent, encouraged to apply and appointed, whether to the boardroom or the bench. It is not enough to say that we will get there eventually and, whilst we are not there, democracy, administration and the rule of law are poorer for ignoring the opinions and abilities of half the population.
The failure to draw out women from any commercial or professional pool has its roots in an education system that failed to encourage women into traditionally male occupations, businesses and professions that frown on changes to practices, where speaking out is discouraged and unreconstructed attitudes are not challenged. Speaking up can harm careers and it is easier to engage judges with analogies relating to cricket, football and classics, rather than childcare, Zumba and shoes.
In a world that is run by a limited number of men generally educated at a few of the same schools, women are needed to dilute conflict, protect liberty and dispense justice more than ever. The issue of diversity should not be either politically sensitive or controversial. The reasons for the domination of the upper echelons of working society by white middle aged men are simple: they are the ones with the education and the connections and therefore the power. The issue needs to be addressed in a straightforward and direct way from the top to the bottom of the legal profession and if we can do it for the judiciary, other areas will have to follow.
What can be done? It need not be a long haul to the appointment of women to the top. It is really time to demand that promotion. The currently apathy is based on pure prejudice that only men have the skills. The pool of merit would be wider if the system did not depend so much on referral by the very network of senior men that those women have battled for so long – many giving up the challenge. Ask the colleagues for a reference, not the boss. It would be wider if talent was recognised in larger categories of skill base such as organisation, management, marketing or mediation. It would be wider if women were given more responsibility earlier in their careers regardless of whether they work from home or in the office. It would be wider if business social functions did not still depend on late nights, booze and football tickets. The competing interests are complex but the issue is simple – there is a positive obligation to achieve something now, working practices have to change and those at the top should be seen to act in the wider interest rather than as sticks in the mud.
I won’t be the first to wonder if the banks would be in such a mess if women had been in charge or if big business would be less corrupt if they had women on the board or if manufacturing and retail would be less gloomy if investment support had been decided by women for less traditional fields. Who out there doesn’t think that the law on rape, baby shaking and loss of control might have developed more quickly in women’s favour if women had been making the decisions in Parliament and in court? The self congratulatory words of Lord Sumption were just an insult and, in the end, Lord Neuberger’s great words on criminal justice and democracy will fall on deaf ears when the speaker is part of an unequal breed of men. It follows that the fight for diversity in the legal profession and the consequent cause and effect on judicial appointment is inextricably linked to the war being waged on the rule of law. As great commercial disputes play out in the Rolls Building, sooner rather than later the judges and the witnesses need to be women. Now is the time to do something about it by poking that upper layer with a very sharp stick. There will always be someone who says – you only got it because you are a woman; the answer to which is – good!