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The Important Need for Diversity in Politics and Law

About The Author

Josh Dowdall (Writer)

Josh is a final year law student at Durham University. His primary interests lie in private law, public law and EU Constitutional law. Outside of academics, Josh is involved in a number of pro bono projects, and is passionate about diversity within the legal profession.

Thankfully Britain First did not win the Rochester and Strood by-election last month, languishing in ninth place with just 0.1% of the vote. Given that the aptly named ‘Monster Raving Looney’ party received three times more votes, it may appear that codifying the UK’s archaic constitution is rather more of a long term legal goal (see my last article). A more pressing concern, and the inspiration for this article, is on the statistic that just 50.67% of voters in Rochester and Strood actually voted.

Whilst it is worth noting that by-elections have typically had a lower turnout than the main general election, both have experienced a decline in voter turnout. A low voter turnout is not confined to UK Parliamentary elections. In the 2014 European Parliament elections 31.4% of UK voters cast their ballot. Similarly, voter statistics for the first police and crime commissioner elections in 2012 registered a high of 20% in Northamptonshire and a low of 11.6% in Staffordshire. Although most modern democracies cannot match North Korea’s impressive 100% voter turnout, the UK is lagging behind other developed countries such as Australia and Malta in terms of voter participation in democracies. The Scottish independence referendum demonstrated that voters are not disengaged by politics, so what is going on?

The problem

I do not think that I am suggesting anything novel or controversial by concluding that confidence in politicians and the Parliament they form is declining. Nor would it be revolutionary to submit that the reason for political antipathy amongst the British electorate is the belief that politicians do not represent the ordinary people.

Consider these statistics on the background and diversity of MPs elected to the current House of Commons in 2010 compared to the same statistics for the wider population.

 

House of Commons

Cabinet

UK population

Privately educated

33%

36%

7%

Attended university

90%

91%

20%

Attended Oxbridge

24%

59%

Less than 1%

Female

23%

23%

51%

Ethnic minorities

4%

5%

13%

I believe that reduced faith in those who govern us is not limited to politicians either. Data from HM Courts and Tribunals service makes for truly shocking reading. I summarise the main findings below.

Percentage of judges who are:

  • Female – 24.5%;
  • Black, mixed or any other ethnicity – 5.8%.

The picture is even more inexcusable when we consider the same statistics for the Supreme Court. Only one out of the twelve justices is female, and none of the justices are from an ethnic minority.

In addition, it has been reported (rather conveniently) that there is no data on the number of judges identifying themselves as lesbian, gay, bisexual or transgender. I suspect that the number would be low, given that the UK’s ‘meritocratic’ society has only allowed unmarried judges to sit on the bench since 1991.

Statistics on the background of judges demonstrate (predictably) similar trends:

  • 71% of judges were privately educated;
  • 14% of judges are drawn from five schools (Eton, Westminster, Radley, Charterhouse, and St. Pauls); and
  • 75% of senior judges attended Oxbridge.

Leaving aside institutional and constitutional concerns about judicial law making, the figures reveal a chronic lack of social mobility in those branches of government that make and implement law. Coupled with diversity statistics for the legal profession, (statistics for the Bar and statistics for solicitors) it makes a mockery of claims that those who make and practise law are not predominantly drawn from one socio-economic group. The Establishment appears to be alive and well at the apex of British society.

I contemplate what the consequences will be for the wider law, and especially the common law. Perhaps the following quote from Sturges v Bridgman [1879] LR 11 Ch D 852 may prove illuminative:

What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey.

Although Sturges v Bridgman was decided in 1879, it must be noted that the case has not been overruled and remains good law. In the context of the tort of private nuisance is it just to expect those from lower cost housing to withstand a more potent nuisance than those in more expensive areas? Whilst it may be argued that the locality rule follows common sense logic, I contend that it is an unjust example of elitism reflected in the law.

The more recent case of R v Brown [1994] 1 AC 212 may also provide further evidence of how judicial unrepresentativeness affects substantive law. The defendants in Brown were convicted of unlawful and malicious wounding, and assault occasioning actual bodily harm contrary to s. 20 and s. 47 of the Offences Against the Person Act 1861. Their convictions stemmed from involvement in consensual sadomasochistic acts over a ten-year period. The question of law facing the House of Lords was whether consent is a valid defence to assault occasioning ABH, to which the Court answered in the negative.

On the face of it the ruling may seem a reasonable one. It can be argued that the law has a role to play in protecting wider society from the harmful effects of violent sexual fetishes. However, when we consider Brown in light of R v Wilson [1996] Crim L R 573 the implicit effect of an elitist judiciary becomes apparent. In Wilson the appellant used a hot knife to brand his initials in his wife’s buttocks. He was charged with assault occasioning actual bodily harm contrary to s. 47 of the Offences Against the Person Act 1861. The question of law was akin to the one considered in Brown: whether or not consent is a valid defence to assault.

The Court held that the wife’s consent was valid. The branding was taken to be akin to tattooing and cosmetic enhancement rather than infliction of pain for sexual gratification. Consensual activity between husband and wife in the privacy of the matrimonial home was taken to be a matter that the courts should not concern themselves with. I suspect, along with others, that the ruling in Brown was influenced by the heteronormative attitudes of the white, male, and married law lords that heard the case. It is an appalling inconsistency that the law was not willing to intrude upon the privacy of the matrimonial home in Wilson but felt quite able to criminalise the appellants’ consensual acts in Brown.

Allowing substantive law to be made by individuals unrepresentative of the demographic make up of the wider population is clearly undesirable at best and abhorrent at worst. I submit that lack of diversity is a key factor in undermining public trust and credibility in the institutions that create and interpret law today.

Why is diversity desirable?

I do not endeavour to spend any great length of time discussing the benefit for greater diversity amongst those who make, interpret and practice law. However the benefits are twofold and must be stated.

Diversity amongst our elected politicians will encourage a plurality of views and interests to be reflected in Parliamentary debates and legislation. Truly representative democracy will allow individuals from all walks of life and backgrounds to feel that their views are genuinely represented in Parliament. It may also create legislation that better reflects modern Britain. 

In addition, confidence in judges is absolutely vital. To that extent, the rule of law depends upon public support for courts. If the general perception is that the judiciary is made up of middle-aged and privately educated white men the effect is likely to be detrimental on the administration of justice. Logically this makes sense. The statistics demonstrate that judges are predominantly drawn from one socio-economic background. Judicial training only goes so far. No matter how well trained judges are to empathise with the lives of those who come before them, if they have not experienced similar trials and tribulations for themselves how can they truly understand? A recent report concludes that a representative judiciary is better equipped to understand the ‘array of concerns and experiences’ of litigants. A more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself, thus making adherence to the rule of law more successful.

The Solicitors Regulation Authority and the Bar Council also recognise the tangible benefits to be had from greater diversity amongst members of their respective professions. Diversity enhances the quality of service provided by both barristers and solicitors. To this extent clients increasingly demand diversity in the workplace, which may explain concerted efforts to implement detailed diversity policies by some law firms. Individuals from different socio-economic backgrounds bring perspectives that allow the legal profession to reach out and understand the world beyond the narrow and gilded confines of the old boys’ club. 

What can be done?

It must be noted that there is no magic “fix all” to the problem of underrepresentation in legal spheres. However, I will endeavour to explain some thoughts about how diversity could be promoted.

Firstly I must state that those holding office must be based on merit alone, especially in the case of the judiciary. This is stated in s. 27(5) of the Constitutional Reform Act 2005. To promote a female member of an ethnic minority who was state schooled but achieved a lower standard of education over a white, male judge who is of higher academic ability and privately educated is to positively discriminate contrary to the Equality Act 2010. Such an approach would be unreasonable and counterintuitive. However, I believe there is a case to be made for targeting resources at under-represented characteristics within the judicial appointments process. For example: I would welcome further support and training which make it easier for minority groups and women to progress from law firms and chambers to the Bench. There should also be focused support for female judges already within the judiciary to progress to the senior courts. 

In turn this demands that the legal profession promotes and encourages diversity amongst its members. Law firms are leading the way here. Through a work experience placement with the international-commercial-law firm, Hogan Lovells last summer I can appreciate the efforts that the firm are investing in implementing a robust diversity policy. I have been invited to several events run by Hogan Lovells, all of which were thoroughly informative and demonstrated a genuine commitment to promoting diversity amongst its lawyers. The firm must be strongly applauded for its work in this area. Hogan Lovells works with Pathways Plus to Law, which is run by the Sutton Trust. I am lucky enough to have been selected to participate in the programme. Pathways Plus to Law aims to improve social mobility in the legal profession through tailored support during the academic study of law. I cannot praise it enough for the work that it is doing. Hogan Lovells is not the only firm to work with the programme. I have also spent time with Linklaters and DLA Piper, both of which must be commended for their commitment to increasing social mobility within their respective firms.

The Bar also offers diversity initiatives through the Inns of Court. The Pegasus Access Scheme run by Inner Temple is an example. Other access schemes are also appearing, including Access Bar Careers (‘ABC’) that is sponsored by Keep Calm Talk Law. Although ABC is in its infancy its first few weeks have been highly successful. 20 sessions have been given, with a waiting list of over 400 applicants.

I call on the Bar to redouble its efforts. There is clearly a need, as demonstrated by the extensive waiting list for ABC, which has accumulated just weeks after launching. Whereas I was once certain that I wanted to practise as a barrister, the fees for the BPTC and the cuts to legal aid are forcing me to reconsider. With cuts to legal aid changing the profession it is absolutely vital that the Bar does not become the preserve of only the rich. The quality of advocacy would undoubtedly be affected, and that would be a great shame. The Bar simply must do more to attract the brightest and most talented advocates in these difficult times, and do more to support them in their pursuits once they are set on a career at the Bar.

Together, greater investment in these grassroots campaign will (hopefully) create a more diverse judiciary in the future.

Conclusion

I have sought to demonstrate how lack of diversity is a factor that is contributing to the current existential crisis facing law and politics. The case for diversity is not just a nice policy idea; it is one that will have real benefits. A concerted effort from Parliament, the judiciary, and the legal profession to promote diversity amongst their respective members may prove fruitful in going some way to reconnecting the wider public to those institutions that make, implement and practise the law which governs them.

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Tagged: Courts, Discrimination, Rule of Law

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