Last year, when the Master of the Rolls, Lord Neuberger, called for the use of s159 of the Equality Act 2010 to increase diversity in the judiciary, he highlighted the relative lack of representation of some groups in senior legal positions – and, indeed, in the legal sector per se.
We asked Steve McNally of Equality Law to analyse the issue: When two candidates for a legal position are of equal merit, should this form of positive action be used – and what effect could we realistically expect?
“Women and Ethnic Minorities are not progressing – or are simply under-represented.
“Whether the ‘tie-break’ provision should be used in legal – and especially judicial – appointments is an increasingly important item on the agenda and it refuses to go away.” says McNally.
“A recent study by the Bar Council was really quite sobering. It showed that the proportion of women barristers was rising very slowly indeed: in 2006, they formed 33.4% of the profession but by 2010 it had risen to 34.8%.
“For those from ethnic minorities, the rise in numbers is also slow. In 2006, 76.2% of barristers were white, 9.6% from black or minority ethnic backgrounds and there was no data on the remaining 14.2%. By 2010, the figures were: white 77.2%, minority backgrounds 10.2% and no data on 12.6%.
“Beyond that, progress in appointing women and members of ethnic minorities as judges has been far too slow and the adoption of a ‘tie-break’ procedure favouring such candidates is, in my view, almost inevitable. Ken Clarke, the Justice Secretary, effectively said just that to the House of Lords when he appeared before the constitution committee inquiry into the judicial appointments process at the beginning of the year.
“Mr Clarke was acknowledging what many people in the legal sector believe: greater diversity is needed, although appointments must also still be based on merit, of course.”
“The Legal Profession must appoint on merit – but also reflect what’s going on in the wider world.
“Section 159 of the Equality Act 2010 allows employers to choose someone from an under-represented group when faced with two candidates of equal merit – and this year may well see the adoption of s159 in the selection of judges. This is often known as the tie-break principle, and for the legal sector as a whole it may well prove to be the tipping point for greater diversity – not just amongst judges, but across the whole profession.”
“Certainly, the legal profession needs to understand that it doesn’t work in a vacuum. It’s a professional service in a world where the UK government is committed to 25% female representation on the boards of FTSE 100 companies, where glass ceilings are being smashed in many different industries – and, in that sense alone, representation of women simply doesn’t look healthy enough.
“There are barriers – but 2012 will see the beginning of real change.”
Are there any reasons why the Law profession lags behind others? McNally believes that the issue is structural rather than just attitudinal. “The problems are not just at the appointments process. It’s a problem of the career structure. Fifty per cent of those entering the legal profession are women – that’s a healthy intake. But the evidence suggests that women progress more slowly in the profession, reach fewer senior positions – and watch their prospects for advancement simply peter out.
“I’m even more concerned about the slow progress for people from ethnic minorities” says McNally. “Quotas and targets don’t add very much to the argument as the one immovable thing is that the Legal profession must appoint on merit. So the introduction of the Tie-Break has to be seen as a positive – and I fully expect its adoption to begin in 2012.”
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