It is not surprising that the leading historian of one of the most violent periods in European history should resist imposing change on a system that is accustomed to evolving at the most glacial pace. But it is unfortunate. Jonathan Sumption, who writes on medieval history and is the author of an admired multi-volume history of the hundred years war as well as being one of the most senior judges in England, has renewed his argument that it would be “calamitous” to hasten the introduction of women into the supreme court by positive discrimination.
In an inflammatory newspaper interview earlier this week, he appears to dismiss bringing up children as a lifestyle choice and warns that positive discrimination would be the only way to accelerate gender equality. The man who admits he got his own start in the law through family “string-pulling” accuses his critics of failing to understand that diversity and merit are incompatible concepts.
It is three years since Lord Sumption first publicly rehearsed this flawed argument. Back in 2012, newly appointed himself direct from a lucrative practice at the bar, he acknowledged that it was important that only 21 out of 106 high court judges are female, and only eight of 38 at the court of appeal (he didn’t address the still starker black and minority ethnic under-representation) was regrettable; but he said introducing positive discrimination could jeopardise what he called its delicate organism. Women and society must simply sit out the 50-odd years that gender balance will take to arrive.
It is the merit thing. Lord Sumption looks around at the higher reaches of the bar and believes there are not enough women at the top of the profession who are up to the job of being a senior judge. Appointing inferior women candidates just to make up the numbers would upset both qualified male candidates and qualified female ones, who would feel patronised by tokenism. He thinks that merit and diversity are in conflict. What he fails to do is to question how merit is defined.
The same failure has doomed every move to bring diversity into the judiciary since Helena Kennedy first suggested judicial appointment was a cloning procedure in the early 1990s. It is hardly a unique problem. The Institute for Government has just produced research which points out that neither the Foreign Office nor the Treasury has ever been headed by a female mandarin. Boardrooms still argue that only a lack of candidates prevents them appointing more women directors, although the threat of EU-imposed quotas has begun to change their perception.
The Judicial Appointments Commission does not mention success as an advocate as a criteria for appointment, but all the qualities it does look for are most easily demonstrated by a successful senior barrister. Even now, the Bar’s working practices and its dependence on networks create invisible obstacles for people from other backgrounds.
The only female member of the supreme court, Baroness Hale, has the answer. In fact, as a woman who made her name not as a barrister but as a member of the Law Commission, she is what the answer looks like. She argues that judicial merit is about more than having been admired at the bar. It is about, among other things, what you bring to the mix. It is ultimately about judgement, which comes less from what you earned at the bar, than from broader experience shaped by, among other things, gender and ethnicity. When it comes to appointing the judiciary, merit and diversity are two sides of the same argument. You can’t have one without the other.
• This article was amended on 28 September 2015. An earlier version said “The single merit that the judicial appointments commission most looks for is quality advocacy”. This has been corrected.
