By Holly Nesbitt
On Thursday 2nd December 2021, Riddel Hall hosted Lady Brenda Hale, former President of the Supreme Court of the United Kingdom, for the Annual Mary McAleese Diversity Lecture. Her lecture, titled ‘Women are equal to everything’, discussed the need for diversity and inclusion across the legal profession.
She began by reflecting on her appointment to the House of Lords in 2004, upon which she portrayed by the media as a hard-line feminist and the most ‘ideological, politically correct judge’ ever to be appointed, which led her to ‘defiantly’ choose her motto – Omnia feminae aequissimae – ‘Women are equal to everything’. Lady Hale, however, does not see herself as a hard-line feminist, but rather a ‘soft line’ one, believing that as the Universal Declaration on Human Rights states, ‘women are equal to men in dignity and rights’, but that the experience of leading women’s lives is different to that of leading men’s lives. She also set out her believe that women’s ‘lived experience’ is as important in ‘applying, interpreting, and shaping the law’ as the experience of men.
She then turned to the progress that has been made within her lifetime, reminiscing that when she was at school (when academic selection was still the norm in England) there were ‘less than half the grammar school places available for girls than were available for boys’. Later, when she studied law at Cambridge, there was ‘nine men to every one woman’. When she entered the legal profession, women comprised just 3.3% of practising solicitors, and 5.8% of practising barristers. Meanwhile, in the present day, there are now more women than men entering the solicitors’ profession in England and Wales, and at the Bar the numbers are roughly equal.
When she embarked on professional life in Manchester, she recounted the everyday misogyny women faced – how ‘a female law graduate could be paid two-thirds of the salary of a male graduate for doing exactly the same job’, and an ‘unmarried female professor could be refused a mortgage’ – unless she could find a male guarantor. Then came the Equal Pay Act 1970 and the Sex Discrimination Act 1975, which outlawed these everyday discriminations.
‘We may have got over the causal sexism, even misogyny,’ – she continued – ‘but there are still plenty of problems in securing genuine equality in the workplace.’. The Financial Times has reported in the widening pay gap in many sectors including the law. The gap in the Magic Circle Law firms is more than 40% and getting worse rather than better. Much of this is attributed to the shortage of women in senior roles, and in every sector the ‘mother pay gap’ is worse than the gender pay gap.
She discussed how women have been joining the legal profession at equal numbers to men for ‘at least the last two decades’, but that there is a noticeable falling out of self-employed practise as a barrister or solicitor after 15 to 20 years. In England and Wales, women make up only 36% of practising barristers, only 17% of QCs, and only 33% of partners in solicitors’ firms. She commented on how the structure and organisation of the legal profession makes it ‘difficult for women to take a career break’ or to reduce their working hours if they want to have a better balance between ‘their life’s work and their employment’ and that ‘many able women choose to leave self-employment practise for more family friendly employment’ including local government, the government legal service, regulation, or as in-house counsel in commerce, finance, or industry.
She then went on to explain that this reduction in women in the self-employed profession has a knock-on effect for the judiciary, particularly at higher levels. High court judges have been recruited from the ‘top QCs’, circuit judges from the ‘less successful QCs’ and the more successful juniors, with a few solicitors, district judges both in the county and magistrates court ‘largely from solicitors with a few barristers’, and tribunal judges from ‘all walks of legal life’.
Furthermore, when she became a high court judge in 1994, the senior judiciary were still appointed by the traditional ‘tap on the shoulder method’. The Lord Chancellor’s officials kept a list of practising QCs and ‘would take so-called secret soundings about them from the judiciary and leaders of the profession’. Chances of appointment depended upon being on that list and ‘being thought suitable by those who were consulted’. However, ‘Ministers and civil servants understood the need for change’ – leading to the Constitutional Reform Act 2005, which replaced the old system with independent Judicial Appointments Commission. Things have gradually improved since the commission began its work. Women now make up ‘34% of the courts’ judiciary and around half of the tribunal’s judiciary’. However, they make up only 29% of the higher judiciary – the High Court, Court of Appeal, and Supreme Court.
She then posed the question ‘if justice is blind, why should it matter who the judges are?’, before deconstructing it. Her first reason was democratic legitimacy. ‘One of the two fundamental principles of our constitution,’ she argued, ‘is the rule of law – the idea that society is governed by laws and not by the dictat of individuals’. The law must be there to serve every member of society, not just one section of it. Women as well as men. Secondly, she asserted that the law is there for everyone, ‘everyone must have confidence in it’. Everyone must feel that they will get a fair hearing if they come before the courts. Everyone must believe that ‘the courts are their courts’. The judges are their judges, and not some ‘being from outer space laying down the law for the rest of us’. Third, that ‘our judges and the lawyers who serve their clients in and out of court must be as reflective as possible of the society they serve’. This matters along every dimension of diversity, but it matters most ‘obviously’ to women because women make up half of that society.
She laid out the guiding values of our law – ‘justice, fairness, and equality’. Justice ‘should get us the right result’. Fairness should ‘govern the way we get there’. Equality means ‘the enlightenment value that every human being is entitled to equal respect, and to be treated as an end and not a means.’. She noted that this equality has been reflected in all the modern human rights instruments and in many written constitutions. It is also reflected in our domestic law, in the Equality Act 2010,
and the Human Rights Act 1998. She stated that ‘those values of justice, fairness, and equality ought to be visibly embodied not only in our laws, but also in the lawyers and judges who administer them’ – but that the absence of women and of other underrepresented groups means that they are not.
What can be done?
Lady Hale concluded her lecture by outlining her ten-point plan on what can be done to improve both diversity and inclusion in the legal sector:
1. ‘Cut the cost of qualifying for the legal professions’. She outlined how the English Inns of Court have persuaded the Bar Standards Board to accept a new style of bar course. The knowledge competent by distance learning, and the skills component face to face. Moreover, solicitors’ firms can now offer apprenticeships as a way of qualifying.
2. ‘Persuade recruiters of the merits of graduates from a much wider range of institutions than Oxbridge and the Russell group universities’. She suggested institution blind short-listing. Banning any reliance on unpaid internships, mini pupillages etc. as additional qualifications unless they are genuinely open to all. An insistence on unconscious bias training.
3. ‘Motivate the students to aim to be the best they can. To aspire to be the best they can achieve. To think outside the box to be flexible about their futures’. To understand how ‘many different paths there are to success’ in the law.
4. Give new practitioners mentors and role models like them. She suggested this to show them that it can be done, and that ‘we need women and other less advantaged groups’ to be doing it too.
5. ‘Stop thinking that having children is a woman’s problem’. Lady Hale then pointed out that it should ‘not be assumed that biology is destiny’. That not all women want to have children. More importantly, she asserted that ‘it should not be thought that bringing up baby is a woman’s job’, and that the assumption that it is ‘the woman’s salary which must pay for the childcare’ is a disadvantage to women – and makes it appear uneconomic for some women to go out to work, when the majority of children have two parents who are ‘equally responsible’ for looking after them.
6. ‘Examine your firms, chambers, and bar library practices carefully’ to see what more can be done to nurture and preserve the female talent there. She outlined combatting sexual harassment, adopting family friendly working practises rather than ‘open all hours’, and having an email protocol about how late replies should be expected as just some of the practices which could be adopted.
7. ‘If you do adopt family friendly practices, make sure they don’t produce a two-tier structure’ in which those who choose to work from home are disadvantaged from those in the office.
8. ‘Examine pay structure’: make sure pay women equally for work of equal value. She argues it is not all down to lack of women in senior roles. Women barristers earn less than their male counterparts. Black female barristers’ least of all. She also recommended that firms and chambers should ‘adopt pay structures that look to quality of work rather than length of service’.
9. ‘Look for judicial talent, wherever it may be found’. She advised in particular from amongst those women who have stepped aside from self-employed parties as solicitors or barrister.
10. Above all, ‘remember the inclusion bit of diversity and inclusion’. She affirmed that no one should expect a woman to become ‘one of the boys’ any more than anyone would expect a person of colour to find the same things humorous that their white colleagues do. That ‘we
shouldn’t victimise them if they have the temerity to speak out about practises that make them uncomfortable or things which they think are wrong’. Finally, that ‘the workplace should be a safe space where women are allowed to be whatever they want to be’, and accepted for their own sake and not as honorary men.
In this lecture, as indeed in all her talks, Lady Hale proves just how much of an invaluable asset she is to the law, and particularly women in the law. No woman has ever risen higher in the United Kingdom’s judiciary to date. She shattered the ‘glass ceiling’ with her appointment to the Lords in 2004, and again when she became President of the Supreme Court in 2017, and we must all be grateful for her shining example of an ‘absolutely straightforward, completely honest and principled person’, as Helena Kennedy QC said.