equality and diversity committee

EQUALITY AND DIVERSITY COMMITTEE The Equality and Diversity Committee will meet on 10 April 2008 at 11.00 – 16.00 in Breams Room , 113 Chancery Lane, London

Lunch will be available from 13.00 AGENDA 1

Apologies and Announcements

11.00 – 11.05

2

Minutes of the meeting on 11 March 2008

11.05 – 11.10

3

Matters Arising from the Minutes

11.10 – 11.25

4

Notification of Any Other Business

11.25 – 11.30

For Discussion 5

Director of Communication – Stephen Ward

11.30 – 12.00

Oral Report

6

Interim Policy Support for the Committee

12.00 – 12.30

Oral Report

SRA Update – Mehrunnisa Lalani

12.30 13.00

Oral Report/ Papers to be circulated

Business Plan Objectives.

13.40 – 14.40

attached

9

Report back from QLTR Working Group

14.40 – 15.00

Paper Attached/ Oral Report

10

Report and Update on Recognised Groups

15.00 – 15.15

Previousl y emailed

7 LUNCH For decision 8

For information

Any other business Date of next meeting:

9 July 2008

Committee: Nwabueze Nwokolo Rajshree Chhatrisha Mark Etherington Teresa Etim-Gorst Helen Grant

Mark Landon Clare McConnell David Merkel Leslie Moran Caroline Wilson

Final Minutes Posted on Corporate Business 7 April 2008

EQUALITY & DIVERSITY COMMITTEE Minutes of the meeting on Tuesday 11 March at 10.30 in the Chancery Room, 113 Chancery Lane Present

Nwabueze Nwokolo (Chair) Rajshree Chhatrisha Teresa Etim-Gorst Mark Landon Clare McConnell David Merkel Leslie Moran Caroline Wilson

In attendance

Manjot Dhanjal, Director, Equality & Diversity Anne Godfrey, Director Law Society Services (for minutes 14 & 15) Aisha Hussain, Equality & Diversity Officer, Legal Complaints Service Elizabeth Obi, Committee Secretary Rita Oscar, Membership Development Executive (Careers) Helen Dhami, Policy Adviser (for minute 17)

11.

APOLOGIES AND ANNOUNCEMENTS Apologies for absence were received from Keith Etherington, Helen Grant and Mehrunnisa Lalani. The Chair welcomed members to the meeting and outlined the structure and purpose of the business planning session. The morning session would allow committee members to seek clarification from staff on any issues arising from the distributed papers and the afternoon session would provide an opportunity to clarify the committee business plan objectives.

12.

INTRODUCTIONS Rita Oscar and Aisha Hussain were welcomed to the meeting and introduced themselves. Rita Oscar works for Law Society Services and is responsible for the development of career products and services. She explained that she had served as secretary to the previous E&D Committee. Aisha Hussain was the newly recruited Equality & Diversity Officer for the LCS. She explained that her immediate objective was assure that the LCS was compliant with legislation. She would attend future E&D committee meetings and keep the Committee informed of her work.

Equality and Diversity Committee 11 March 2008

7


13

MINUTES OF THE 30 JANUARY 2008 MEETING The minutes were agreed.

14.

MATTERS ARISING Minute 5 – The Law Society as a Membership Body The Committee sought information from the Director of Law Society Services on the following: 1. E & D Support/staffing in the Law Society Ann Godfrey informed members that the post of Membership Development Executive had been advertised. Interviews would take place week commencing 17 March. Anne hoped that someone would be in post by May or June at the earliest. 2. BME Forum Update The BME Forum was meeting on 18 April and both internal and external groups had been invited to attend. The Forum would meet quarterly. A report on the Forum meeting would be provided to the Membership Board. Anne would forward this to the E&D Committee.

AG

3. Solicitors Support Network Membership Services was negotiation with Solicitors Assistance Scheme, Law Care and Solicitors Benevolent Association to develop a cohesive strategy for the provisionof practice, ethics and pastoral care helpline services. This will replace the current Solicitors Support Network. This service had started out as a referral service and had been set up as a meeting point for pastoral carers. A lot of members were unaware that the service existed and there were few calls received. The service operated to sign-post callers to different specialists who provided advice. The Director of Membership Services would welcome suggestions from the Committee on any E&D aspects. The Committee asked that E&D issues be built in to the design stage and be considered as part of any related commercial negotiation

All

4. Report to Council about Groups activity A report on Recognised Groups’activities would go to Council as part of the CEO’s report Minute 7 Equality & Diversity Framework The Committee sought information from the Director of Equality and Diversity for the Law Society Group on the following: 1. Update on the Group Action plan for Diversity Manjot Dhanjal informed the Committee that the E&D action plan for the TLS group would be updated and an early Equality and Diversity Committee 11 March 2008

Manjot

8


draft would be available for the next E&D Committee meeting in April when members would have an opportunity to comment. The Committee asked to be kept informed about the various E & D activities undertaken across the TLS Group.

Dhanjal

Professor Moran had made available the following articles: a) Judicial Diversity and the Challenge of Sexuality: Some Preliminary Findings (published in The Sydney Law Review) b) Institutional racism and civil justice ( published in Ethnic & Racial Studies, Vol. 28 No. 4 July 2005 pp 620 – 638) These would be circulated to members. 15

Liz Obi

INTERACTION WITH LAW SOCIETY SERVICES Committee members were eager to look at ways they could input into the work of Law Society Services to make them more accessible. Anne Godfrey responded to the following issues raised by the Committee: TLS Website – • There were concerns about the website and its accessibility. Efforts were underway to improve navigation and the long term objective was to improve the whole site. GSD would be invited to test drive the changes. The Gazette – • There was an 86 per cent readership within the profession and the Gazette made £10 million revenue for TLS. It was one of the largest business magazines in circulation in the UK. • Data was available on the readership and how useful readers found the Gazette, which Anne would share with the Committee. This was seen as valuable tool for developing/tracking diversity. • The Committee welcomed the excellent coverage of E & D matters in the Gazette on 28 February. Members expressed the hope that there would be further opportunities for E & D to be brought to the attention of the profession by way of coverage of E & D events and activities, articles and interviews of E & D champions, best practice and the Committee’s work. The Committee further suggested having a guest E & D editor for an edition of the Gazette; featuring a case study on each of the six E & D strands; a message board of what was on offer from law firms in respect of placements or other schemes that were available for those entering or returning to the profession; role profiles and links to websites for further reading on the subject matter covered in articles. It was suggested that groups like Stonewall would be interested in contributing or that articles could focus on profiling role models within the profession. Anne would take back these ideas to the


Anne Godfrey

Anne

9


• • •

• •

Gazette team. The Gazette would re-launch in May and would be radically different with more news, comment and an additional letters page. The Law Society’s Excellence Awards has an annual E&D award and members of the Committee would be encouraged to advertise this. In response to the comment that the Gazette focused on solicitors in private practise more than solicitors working in government and local authorities Anne commented that although this may be the case both groups still chose to advertise in the Gazette. GLS lawyers although not PC holders still got a 50 per cent discount if they wished to subscribe to theGazette. The Committee asked whether there were parts of the profession which did not, or could not, access the Gazette? The provision of audio facilities for blind solicitors was mentioned.

Godfrey

Anne informed the Committee that Regis (database) collected information on 4 strands of equality & diversity (age, race, disability and gender). The Committee agreed that it would be a good idea to look at case studies on what Local Authorities are doing to promote E&D in the workplace It was suggested that the Committee put together one A4 sheet of key principles which could provide an E&D benchmark which Anne could refer to.

All

Careers Roadshow Rita Oscar informed the Committee about the Careers roadshow she was organising for 24 October 2008 in London followed by one in Leeds. These events were extremely popular (there had been a waiting list of 400 for the first one). It was suggested that the marketing of these events could be improved to make it clear that although these events were supported by BME groups they were for everyone not just minorities. The Director of Equality and Diversity reminded the Committee that the purpose of the Career Workshops was to target groups that did not have access into the legal profession and that whilst these Career Workshops were open to everyone, the focus on those groups that struggled to access the profession would continue. Rita told members that she would find it useful if they could provide her with ideas about strategies for career progression. She was presently drafting guidance for those returning to the profession after a career break which she would share with the Committee.

Rita Oscar

Members suggested that firms may be interested to offer placements to those returning to the profession after a

Claire


10


break; this would be suggested to AWS members who may be willing to participate.

McConn ell

Rita discussed alternative career paths and outlined how firms lacked a template for flexible working, disabled access etc. She asked that if firms have a tried and trusted practice to pass it on to her. The Alternative Employment Commission was holding three road show events and wanted to encourage BME individuals to attend. 16.

INTERACTION WITH DIRECTOR OF EQUALITY & DIVERSITY Manjot encouraged the Committee to concentrate on four or five clear objectives in its work plan. She suggested that the Committee should obtain the work plan of all the Law Society Boards. This would be a useful way of tracking how E & D was being embedded at every level of activity within the Law Society Group. She informed members that annual trend reports were published every year: the link to these would be sent to members for information.

Liz Obi

Manjot responded to questions from the Committee on the following: Gus John Evaluation Report • • • • •

•

The report had acknowledged that, overall the Law Society group had made significant progress towards its commitment of playing a leading role in the area of E&D. The SRA has made steady and significant progress, for example, in ensuring that regulatory activities were carried out in a fair and equitable manner. There was a need for much closer scrutiny of the performance of both Human Resources and the LCS. There had been concerns about the LCS concerning the progress on complaints. More widely across the organisation, the report had highlighted the need to build capacity to conduct effective impact assessment and to analyse and act upon the results of that assessment. Professor John was due to conduct another evaluation this year. He had produced an update summary in November 2007 and Manjot would circulate this to the Committee prior to the next meeting.

The Committee wished to gain a clearer understanding of what had been done regarding equality & diversity issues across the group. There could be more communication to the profession about what was going on, what had been achieved and what was still outstanding. Rita would provide the Committee with an update on recognised groups activities and E & D activity and this would be included on all future agendas Equality and Diversity Committee 11 March 2008

Manjot Dhanjal

Rita Oscar/ Liz Obi

11


Following on from the GSD Conference in February it was suggested that TLS work on a joint disability audit with the EHRC over a period of one to three years which would provide practical guidance on what improvements were taking place. The Committee sought advice on its reports to Council. Manjot suggested providing key headlines on what the Committee had done, to highlight E & D issues and to focus the minds of Council members when making decisions. It was part of Manjot’s work plan to look at how the other Committees addressed BME issues. She also suggested that the Committee invite Stephen Ward Director of Communications, to a future meeting to discuss with him the ways in which E & D issues could be communicated and marketed. 17.

Liz Obi

SRA CONSULTATION ON THE QLTR Helen Dhami introduced herself as a policy advisor from the Regulatory Affairs Unit attached to the Legal Policy Directorate and explained she worked on Education and Training issues. She was attending the meeting to ask the Committee to comment on the SRA proposals in respect of the interim guidance for the QLTR. Helen explained that the interim guidance had been put in place pending the outcome of a full and substantive review. There had been no consultation on the interim guidance and although one of the stated objectives of the broad review was to widen access to the profession the interim guidance did not achieve this and in fact would further restrict access to the profession by particular groups e.g. BME. She questioned whether the interim review was necessary or proportionate and felt there should instead be one consolidated review. She was collating information on which jurisdictions were affected more than others and the impact of the interim review on large firms. After discussion the Committee agreed to form a working group to respond to the consultation. Teresa Etim-Gorst, Claire McConnell and Nwabueze Nwokolo would co-ordinate the Committee’s response.

18.

BUSINESS PLANNING SESSION Members of the Committee outlined their various areas of interest and discussed the business plan objectives. The following points were raised: •

To identify possible partners in order to approach the profession under joint stewardship e.g. working on a joint audit with EHRC.


12


•

Improving partnership working with groups e.g. AWS, GSD, BSN and all the other recognised TLS groups as well as groups such as AML and SAL.

•

To focus on the career progression of BME solicitors.

•

To understand the subtle barriers restricting the career path of women solicitors including cultural barriers and their impact and to understand the ratchet effect of the multiple experience of being women, older, BME etc.

•

The Committee to get a report from the Diversity Access Scheme.

•

Mainstreaming equality and diversity issues.

•

To consider how to interact with TLS Boards, LCS and the SRA. It was suggested the Chair of the Boards be invited to address a Committee meeting.

•

To have an E & D Champion on all the Boards of the Law Society Group. Each champion to serve for a finite period thereby enabling appointments/election by rotation and consequently increasing E&D know how within TLS and achieving a high profile for the E & D/inclusion agenda.

•

To put in place performance indicators across all six E & D strands, around entry and progression within the profession

•

To highlight best practice.

•

To look at how to LCS might capture the profile of service users.

•

Ensuring that all of TLS Groups E&D and inclusion publications were updated, including the legislation, the framework for diversity, and the staff and members E & D training manual.

•

Converting the Committee to a Board of the Law Society.

•

Measuring the progress vis a vis E & D within TLS group and thereafter benchmarking.

•

How E & D best practice could add value to an organisation

•

How the Law Society Group could ensure that gains made in relation to E & D and Inclusion agenda were not lost.

•

Identifying an issue that can be used as a case study

•

The over representation of BME solicitors in the SRA’s procedures The Chair was a member of the SRA Working Group and would update the Committee on the group’s


13


progress. Submission to the working group could be made through the secretary, Mehrunnisa Lalani. •

Supporting lesbian and gay members of the profession. The Vice President Paul Marsh and Nwabueze Nwokolo had met David Isaacs, a partner in Pinsent Masons and Director of Stonewall on 13 February 2008. He was eager to work collaboratively with the Committee and TLS Group and would welcome ideas from the Committee.

•

The impact of the Legal Services Act and the Carter Review of Legal Aid on the profession as a whole and the equality, diversity and inclusion issues raised by the proposed changes to the delivery of legal services.

•

The review of the QLTR and the impact of such a review, taking into account equality, diversity and inclusion.

The conclusion of the discussion is shown in Annex 1, Business plan Objectives 1 – 6. 19.

DATE OF NEXT MEETING The date of the next meeting is 10 April 2008

Signed: ………………………………………….. Date: ……………………….2008 Nwabueze Nwokolo, Chair


14

Annex 1

Equality and Diversity Committee

Objectives 1- 6

st

1 Draft of Business plan 2008 TERMS OF REFERENCE

The Committee’s function is to advise the Council, its Boards and committees on matters of equality, diversity and inclusion. This will include assisting the Council in discharging its oversight responsibility for equality and diversity issues; setting the direction and framework for diversity issues and ensuring a co-ordinated approach to diversity work; monitoring progress towards the Law Society’s commitment to playing a leading role in the elimination of discrimination in all its activities as a regulator, representative body and complaints handler; reviewing progress against the Law Society group’s equality and diversity framework and action plan and the Single Equality Scheme; advising on emerging diversity issues for the profession and clients and engaging in dialogue with the profession on such issues; and advising on equality and diversity training for Council, board and committee members When the Committee makes a recommendation, the Council, board or committee to whom it is directed must consider the recommendation at the first practicable opportunity and if it does not accept the recommendation, or accepts it only in part, it must give reasons for doing so.

OBJECTIVE

ASSIST THE COUNCIL IN DISCHARGING ITS OVERSIGHT RESPONSIBILITY FOR EQUALITY AND DIVERSITY ISSUES

PROJECTED START AND END DATE

April 08 – April 09

SECTION AND PROPORTION OF PROFESSION

IMPACT

MEASURES OF SUCCESS

ANNEX 1DRAFT BUSINESS PLAN

1

PAGE 1 OF 6

2. 3. 4. 5. 6.

REF

ACTIVITIES TO ACHIEVE THIS OBJECTIVE


DEADLINES/KEY MILESTONES

KEY STAKEHOLDERS

PAGE 2 OF 6

1.0

Familiarise EDC with E & D work/initiatives carried out by TLS group

April - June 08

TLS Boards & Committees SRA

Examine business plans

April/may

LCS

Invite Chairs of Boards to address EDC on equality impact issues June June 08 June 08

1.1

Identify E&D Champions among stakeholders Provide assistance and support

1.2

Converting the Committee to a Board Measure progress of E&D within TLS Group Benchmarking Ensuring that gains made are not lost Highlight best practice and added value Identify case study

2. SET THE DIRECTION AND FRAMEWORK FOR DIVERSITY ISSUES AND ENSURE A CO-ORDINATED APPROACH TO DIVERSITY WORK;


PAGE 3 OF 6

2

Across the six strands of the diversity to set up a series of measures to inform EDC where to focus attention as follows:

June

Entry into profession Progression at various levels Type of law firm (high street/top 100 etc) Leavers Maternity leavers Career change Use red/amber/green scorecard to show progress over a period of time. Carry out annually Include soft measures too through existing surveys

2.1

An Audit of Disability Awareness within the profession Contacting EHRC to explore partnership working Developing an appropriate consultation/self audit pack for Law Firms which addresses both disabled employee & client issues Based upon feedback: Determining need for guidance (& whom TLS might partner with in providing guidance) Advising TLS of compliance issues Establishing progress measurements

MONITOR PROGRESS TOWARDS THE LAW SOCIETY’S COMMITMENT TO PLAYING A LEADING ROLE IN THE ELIMINATION OF DISCRIMINATION IN ALL ITS ACTIVITIES AS A REGULATOR, REPRESENTATIVE BODY AND COMPLAINTS HANDLER 3.0

Liaise with SRA working group looking into impact of regulatory activity on BME solicitors

REVIEW PROGRESS AGAINST THE LAW SOCIETY GROUP’S EQUALITY AND DIVERSITY FRAMEWORK AND ACTION PLAN AND THE SINGLE EQUALITY SCHEME


PAGE 4 OF 6

4.0

Monitor progress of equality and career progression

4.1

Research multiple/interconnected discriminations

4.2

Monitor progress of LGBT issues

Identify best practice

Host round table event Conduct more research Benchmarking, comparison and evaluation Set direction & framework Sampling 4.3


4.4

Examine the progression of BME solicitors within Profession

4.5

Updating all E&D documents including training manual, legislation, the framework for diversity.

ADVISE ON EMERGING DIVERSITY ISSUES FOR THE PROFESSION AND CLIENTS AND ENGAGE IN DIALOGUE WITH THE PROFESSION ON SUCH ISSUES

5.0

Advise on emerging diversity issues arising from the QLTT consultation and input requested by RAB Advise council on emerging diversity issues thrown up by Carter proposals and alternative business structures as they impact on BME firms and solicitors International/globalisation of legal services and impact on E&D Outsourcing Future of Alternative Business models Explore the current models already deployed and look at best practice from an E& D Perspective. Consult with various providers as to whether they are looking at entry into the market and their proposals in relation to E&D ADVISE ON EQUALITY AND DIVERSITY TRAINING FOR COUNCIL, BOARD AND COMMITTEE MEMBERS

6.0

Activities


PAGE 5 OF 6

Risks to the achievement of this business plan DESCRIPTION OF RISK

WHICH OBJECTIVES OR ACTIVITIES WOULD BE AFFECTED IF THE RISK OCCURS

IMPACT OF RISK ON DELIVERY OF THE OBJECTIVES

PROBABILITY OF THE RISK OCCURING

HOW CAN THE RISK BE MITIGATED?

Stakeholders with whom we will work to achieve this objective [Include information here about internal and external stakeholders with whom the committee will work to achieve this objective]


PAGE 6 OF 6

Working Party on; Impact of SRA decisions on BME solicitors Terms of reference The role of the Working Party is to work with the Solicitors Regulation Authority (SRA) to: •

investigate reasons for the finding that BME solicitors are disproportionately represented in decisions made by the SRA

•

agree the scope, priorities and overall approach to be taken by the independent review

•

advise and support the reviewer throughout the review

•

consider the findings and recommendations in the reviewer’s report

•

present an action plan to the SRA board for the implementation of the findings and recommendations

Role of the members The role of each member is to: •

represent their own stakeholder groups to ensure that their views are considered in the discussions of the Working Party and the work of the review

•

observe confidentiality

•

report back to their stakeholder groups, subject to the requirements of confidentiality

Chair – Anesta Weekes QC The role of the Chair is to: •

chair all meetings of the Working Party

•

liaise with the independent reviewer on all aspects of his work

•

report back to the Working Party on progress

•

deal with publicity and communications in general between the Working Party, SRA and independent reviewer

16/04/2008

Page 1 of 2 For alternative formats, e-mail [email protected]

© 2008

The Working Party The membership of the group will comprise one nominated representative from each of the key BME stakeholder groups. The SRA will be represented by two representatives, and will provide a group secretary who will work with the Chair.

Members

Ali Dizaei

President of the National Black Police Association

Sailesh Mehta

Chair, Society of Asian Lawyers

Nwabueze Nwokolo

Representing the Black Solicitors Network Nwabueze is also the Chair of the Law Society Equality and Diversity Committee

Zarah Mirza / Mahmud al-Rashid

Association of Muslim Lawyers

Peter Herbert

Society of Black Lawyers

Penny Owston / Peter Williamson

SRA Board Representative

Antony Townsend / David Middleton

CEO / Director of Legal, SRA

Mehrunnisa Lalani

Group Secretary, Head of Policy (Inclusion), SRA

Tope Ojikutu / Remi Aiyela

British Nigeria Law Forum

Members of the Working Party will not take a direct part in the work of the review.

Frequency of meetings The Working Party will normally meet monthly throughout the independent reviewer’s work. Additional meetings will be organised as and when necessary.

16/04/2008

Page 2 of 2

© 2008

Working party on; Impact of SRA decisions on BME solicitors Terms of reference for independent review Aim The reviewer will consider all relevant aspects of the Solicitors Regulation Authority's (SRA's) regulatory policies, practices and its decision making process and provide a report with findings and recommendations. Reviewer The reviewer is Lord Herman Ouseley, who is appointed by the SRA with the support of the Working Party. The reviewer will work independently of, but in collaboration with, the SRA and Working Party. Role of the Reviewer The role of the reviewer will be to:

16/04/2008

•

act as an independent reviewer of the SRA in respect of the issues being raised

•

conduct the review in accordance and within the scope identified and agreed with the Working Party

•

seek advice from the Working Party appropriately to inform the review

•

seek advice when necessary and appropriate from Dr Ali Dizaei

•

ensure that at no time is the review compromised in terms of its confidentiality, independence and objectivity

•

provide monthly updates / reports to the Working Party

•

review all areas and aspects of the work of the SRA identified by the Working Party which will include Risk Assessments, use of discretion in decision making, conduct outcomes, collection and use of intelligence

•

provide a final report and make recommendations to the Working Party

Page 1 of 1 For alternative formats, e-mail [email protected]

© 2008

Item 8

Equality and Diversity Committee

Objectives 1- 6

st

1 Draft of Business plan 2008 TERMS OF REFERENCE

The Committee’s function is to advise the Council, its Boards and committees on matters of equality, diversity and inclusion. This will include assisting the Council in discharging its oversight responsibility for equality and diversity issues; setting the direction and framework for diversity issues and ensuring a co-ordinated approach to diversity work; monitoring progress towards the Law Society’s commitment to playing a leading role in the elimination of discrimination in all its activities as a regulator, representative body and complaints handler; reviewing progress against the Law Society group’s equality and diversity framework and action plan and the Single Equality Scheme; advising on emerging diversity issues for the profession and clients and engaging in dialogue with the profession on such issues; and advising on equality and diversity training for Council, board and committee members When the Committee makes a recommendation, the Council, board or committee to whom it is directed must consider the recommendation at the first practicable opportunity and if it does not accept the recommendation, or accepts it only in part, it must give reasons for doing so.

OBJECTIVE

ASSIST THE COUNCIL IN DISCHARGING ITS OVERSIGHT RESPONSIBILITY FOR EQUALITY AND DIVERSITY ISSUES

PROJECTED START AND END DATE

April 08 – April 09

SECTION AND PROPORTION OF PROFESSION

IMPACT

MEASURES OF SUCCESS

08 DRAFT BUSINESS PLAN 2

1

PAGE 1 OF 6

2. 3. 4. 5. 6.

REF

ACTIVITIES TO ACHIEVE THIS OBJECTIVE


DEADLINES/KEY MILESTONES

KEY STAKEHOLDERS

PAGE 2 OF 6

1.0

Familiarise EDC with E & D work/initiatives carried out by TLS group

April - June 08

TLS Boards & Committees SRA

Examine business plans

April/may

LCS

Invite Chairs of Boards to address EDC on equality impact issues June June 08 June 08

1.1

Identify E&D Champions among stakeholders Provide assistance and support

1.2

Converting the Committee to a Board Measure progress of E&D within TLS Group Benchmarking Ensuring that gains made are not lost Highlight best practice and added value Identify case study

2. SET THE DIRECTION AND FRAMEWORK FOR DIVERSITY ISSUES AND ENSURE A CO-ORDINATED APPROACH TO DIVERSITY WORK;


PAGE 3 OF 6

2

Across the six strands of the diversity to set up a series of measures to inform EDC where to focus attention as follows:

June

Entry into profession Progression at various levels Type of law firm (high street/top 100 etc) Leavers Maternity leavers Career change Use red/amber/green scorecard to show progress over a period of time. Carry out annually Include soft measures too through existing surveys

2.1

An Audit of Disability Awareness within the profession Contacting EHRC to explore partnership working Developing an appropriate consultation/self audit pack for Law Firms which addresses both disabled employee & client issues Based upon feedback: Determining need for guidance (& whom TLS might partner with in providing guidance) Advising TLS of compliance issues Establishing progress measurements

MONITOR PROGRESS TOWARDS THE LAW SOCIETY’S COMMITMENT TO PLAYING A LEADING ROLE IN THE ELIMINATION OF DISCRIMINATION IN ALL ITS ACTIVITIES AS A REGULATOR, REPRESENTATIVE BODY AND COMPLAINTS HANDLER 3.0

Liaise with SRA working group looking into impact of regulatory activity on BME solicitors

REVIEW PROGRESS AGAINST THE LAW SOCIETY GROUP’S EQUALITY AND DIVERSITY FRAMEWORK AND ACTION PLAN AND THE SINGLE EQUALITY SCHEME


PAGE 4 OF 6

4.0

Monitor progress of equality and career progression

4.1

Research multiple/interconnected discriminations

4.2

Monitor progress of LGBT issues


Host round table event Conduct more research Benchmarking, comparison and evaluation Set direction & framework Sampling 4.3


4.4

Examine the progression of BME solicitors within Profession

4.5

Updating all E&D documents including training manual, legislation, the framework for diversity.

ADVISE ON EMERGING DIVERSITY ISSUES FOR THE PROFESSION AND CLIENTS AND ENGAGE IN DIALOGUE WITH THE PROFESSION ON SUCH ISSUES

5.0

Advise on emerging diversity issues arising from the QLTT consultation and input requested by RAB Advise council on emerging diversity issues thrown up by Carter proposals and alternative business structures as they impact on BME firms and solicitors International/globalisation of legal services and impact on E&D Outsourcing Future of Alternative Business models Explore the current models already deployed and look at best practice from an E& D Perspective. Consult with various providers as to whether they are looking at entry into the market and their proposals in relation to E&D ADVISE ON EQUALITY AND DIVERSITY TRAINING FOR COUNCIL, BOARD AND COMMITTEE MEMBERS

6.0

Activities


PAGE 5 OF 6

Risks to the achievement of this business plan DESCRIPTION OF RISK

WHICH OBJECTIVES OR ACTIVITIES WOULD BE AFFECTED IF THE RISK OCCURS

IMPACT OF RISK ON DELIVERY OF THE OBJECTIVES

PROBABILITY OF THE RISK OCCURING

HOW CAN THE RISK BE MITIGATED?

Stakeholders with whom we will work to achieve this objective [Include information here about internal and external stakeholders with whom the committee will work to achieve this objective]


PAGE 6 OF 6

Requirements for lawyers qualifying as solicitors in England and Wales Consultation questionnaire form This form is designed to be completed electronically—in MS Word—rather than as a printed form. You must save it locally before and after completing it. If you wish, you can print a blank form and complete it by hand or by typewriter. For submission instructions, see page 15. The deadline for responses is 14 April 2008.

For alternative formats, email [email protected] or telephone 0870 606 2555. 07/04/2008

Page 1 of 20

www.consultations.sra.org.uk

Question 1 Should all solicitors admitted in England and Wales have had some prior experience of working within English and Welsh law, however they qualify? Yes No Please explain your answer. Experience of English and Welsh law and practise is a necessary prerequisite because it provides an appropriate basis/foundation for the relevant solicitor to advise. It is difficult to envisage someone being able to advise competently on English and Welsh law without having had practical experience of it. There should be more acknowledgement of how much harder it is for some lawyers from other jurisdictions to gain that experience where firms are unwillling to employ them through lack of understanding or distrust of their mode of transfer. Prior experience should be acquired from designated providers of legal services and accredited for the purposes of the QLTT. See too our comments in respect of question 3 below. .

•

If you answered “Yes” to the question above, please answer the question below. If you answered “No”, please proceed directly to Question 2.

What should be the length of the prior experience required? We do not consider that the focus of the question is correct. Specifying the length of prior experience will not provide any indication of the skills which have been acquired. The acquisition of good skills and the identification and measurement of these will provide a more robust indication of the competency of an individual to advise as a solicitor. Ensuring relevant experience is also however desirable, particulalry in acquiring a greater understanding of procedure and practice, as distinct from legal knowledge. A combined approach which identifies both of the above aspects would therefore be preferrable to focusing on a time-based assessment which would not necessarily identify the attributes which are necessary to ensure that the foreign lawyer wil be an adequate adviser and provider of legal services in England and Wales. We believe that consideration should be given to specifying the minimum complement of skills and experience which would be necessary prior to qualification. Such a skills based approach is used currently for trainees and a similar approach could be applied in respect of qualified lawyers.

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Question 2 Should all solicitors admitted in England and Wales have experience of different types of legal work, gained either in the law of England and Wales or in another common law system? Yes No Please explain your answer. Please see the answer in respect of question 1. We acknowledge that some solicitors work in a rarified environment where they are exposed to only one type of work. However this is in the minority of situations, and perhaps only ever really arises when a solicitor remains working in a large commercial practice such as in the City of London. Most solicitors will have to advise clients who require advice on a variety of legal areas. For example a client who seeks advice on a matrimonial matter may also require advice on child and housing law and on court/local authority proceedings. Whilst it is unrealistic to expect a solicitor to be able to provide all of the above advice, nevertheless, in order to be an effective adviser it will be useful for that solicitor to have an awareness of the other legal areas related to/ dependent on his primary area of practice if only to refer the client onto another solicitor who can provide the additional specialist advice. When solicitors qualify to practise in England and Wales it provides the right to practise in any area of the law and in contentious and non-contentious work. City solicitors may move to work in smaller high street practices and vice versa. Accordingly in order to provide appropriate safeguards for the consumer we believe that all solicitors should have experience of different types of legal work, including contentious work. We believe that experience of the legal work could be acquired in another jurisdiction, provided of course it is relevant (see answer to question 1 above) but that experience of contentious work will, necessarily require experience of working within England and Wales. We have observed the reference to common law systems within the consultation document. We believe that in some instances this reference is misplaced as certain lawyers who are eligible to sit the QLTT do not come from common law jurisdictions, for example, Scotland, South Africa, Quebec in Canada and Zimbabwe.

•


What experience of different types of legal work should be required?

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Please see the answer to question 1 - experience should be linked to the acquisition of the approprite legal skills. Please also see the answer to question 2 above. More care should be given to consider the types of legal work and legal systems in which a lawyer from another jurisdiction will have been grounded. There should be more clarification of the methodology to be employed to establish which jurisdictions will be covered by the new transfer regime and the implications for prior experience. For example in Zimbabwe which is based on Roman-Dutch law lawyers do not instruct barristers unless a case goes to the Supreme court and in all other respects the lawyer does the work of both solicitor and barrister.

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Question 3 How should required prior experience be supervised? For example, should supervision be by an experienced solicitor? Should it align with the supervision required for trainee solicitors? Should it be more general?

We believe that supervision should be by solicitors who have adequate training to ensure they supervise appropriately. Additionally they should also have a similar skills-set to those required to be met by the person being supervised. We consider too that it would be possible to split supervision between a superviser who supervises non-contentious work and a superviser who supervises contentious work. the providing organisation should be clearly designated and accredited by the Law Society for this purpose to make it fairer and easier for the trnasferring lawyers to access without discrimination or fear of less favourable treatment.

Question 4 Do you agree that the draft guidance is a reasonable and proportionate way of ensuring that all transferring solicitors are fit to practise? Yes No Please explain your answer. I DO NOT UNDERSTAND THIS QUESTION [Note from Teresa: there seems to be a human rights implication here. the emphasis should be on ensuring that the transferrring lawyers from some jurisdictions are not treated less favourably than otheres, in line with the GATS principle and notwithstanding the favourable terms open to EU lawyers under Establishment directive 998/5/EC).] .

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Question 5 Should exemptions be granted from a stipulated part or parts of the QLTT? Yes No •


In what circumstances should exemptions be granted? See the answer to question 1 above. Where it can be objectively evidenced that an individual's prior experience is directly relevant to a certain head of the QLTT then an exemption could be given. Simply relying on the proposal's suggestion of having had an 'assessment' within the past 5 years would not provide any guarantee per se of the quality of the solicitor's skills.

Question 6 Is it reasonable to introduce a moratorium on the SRA’s authorisation of new test providers and locations ahead of measures to enable greater assurances to be given about the standard of all QLTTs? Yes No

Please explain your answer. The consultation document advises that there are allegations of marking inconsistencies between QLTT providers. Until this issue is addressed and resolved satisfactorily it seems a prudent approach (and indeed one which would help retain confidence in the QLTT system) to introduce a moratorium.

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Question 7 What are your views on the possible equality impact of the guidance? We belive that having a skills based approach will minimise any adverse effects of the application of the guidance. We would like to see the introduction of an equality impact assessment form relating to the guidance. Additionally this should have clear guidelines for measuring the equality impact, and should clearly state when this will be done and by whom.

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Question 8 Have you qualified as a solicitor using the QLTR route to qualification? Yes No

If so, in which jurisdiction did you originally qualify? A member of our Equality and Diversity Committee qualified originally in Scotland.

Are you considering making an application using the QLTR route to qualification? Yes No

If so, in which jurisdiction are you qualified?

Would you be willing to participate in future research that will inform the full review of the transfer scheme? By selecting “Yes”, you consent to us contacting you by email for this purpose using the address you provide in the “About you” section of this form. Yes No

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Question 9 Please enter below any other comments you would like us to consider. Regarding paragraph 4.2 of the Executive Summary, we do not believe that language skills should be expressley articulated as a competence standard. this is a difficult area with scope for discrimination. The rationale for the review that transferees are more likely to be the subject of disciplinary sanctions should be considered and tested by an independent working party h - perhaps the working party set up under Anesta Weekes QC. It would be useful to clarify the timing of the consultation and explain whyu it is thought necessary to do it now and on an interim basis.

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About you Thank you for responding to the consultation. Please identify yourself below. Surname

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Your email address Please enter your email address below.

We will use your email address if we need to contact you about your response and to inform you of progress in this consultation. Email updates Would you like to receive email updates about other Solicitors Regulation Authority consultations?

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Confidentiality We may publish a list of respondents and a report on responses. Partial attributed responses may be published. Please advise us if you do not wish us to attribute your response or for your name or the name of your firm or organisation to appear on any published list of respondents. Attribute my/our response and publish my/our name. Do not attribute my/our response and do not publish my/our name.

Specific confidentiality requirement detailed below.

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I am submitting a response… Please identify the capacity in which you are submitting a response by selecting one option only from the list below. To select an option, click on the check box next to it. on behalf of my firm

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Thank you for identifying yourself.

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More about you We want to ensure that responses to our consultations capture the opinions of a wide cross-section of the profession, stakeholders and the public. Please help us by answering several more questions about yourself and—if appropriate—about your firm or other place of work. A. Questions about you What is your gender?

Male

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Please enter your age—in years.

Which of the following best describes your ethnicity? Select one option only from the list below. To select an option, click on the corresponding check box. White British White Irish White other

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Do you have any disability that has a substantial and long-term effect on your ability to carry out day-to-day activities?

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If you are responding to this consultation in any of the following capacities, you have now completed all questions. Thank you. • On behalf of a Law Society board or committee, a local law society or a representative group • As an academic • As a student • As a member of the public Otherwise, please proceed to Section B.

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B. Questions about your firm Please answer the questions below only if you are responding on behalf of your firm. Otherwise, please proceed to Section C below. What type of firm is yours?

Partnership

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Sole practice

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Number of associate and assistant solicitors

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In which region is your firm's main office located? City of London

East Midlands

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Please select areas of law in which your firm practises. Area of law Business and commercial affairs Commercial property Consumer problems Criminal defence Employment Family (including matrimonial and child care) Housing, landlord and tenant Personal insolvency and debt Personal financial management and advice Personal injury, accident, medical negligence Probate, will and trusts Residential conveyancing

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Welfare benefits and social security Other, please specify

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Please select the types of client with which your firm conducts business. Area of law Private individuals not legally aided Private individuals legally aided Private sector firms or companies Public sector bodies (eg central and local governments, Crown Prosecution Service, National Health Service, etc) Others (eg charities, trade unions, etc) Overseas clients

C. Questions about where you work Please answer the questions below only if you are a qualified solicitor, trainee solicitor or other legal practitioner responding on your own behalf. Otherwise, you have now completed all questions. Which of the following best describes you? Qualified solicitor working in private practice Qualified solicitor working in commerce and industry Qualified solicitor working in government

Central government Local government Crown Prosecution Service

Qualified solicitor working in other sector (eg trade union, charity) Qualified solicitor no longer working in legal practice Trainee solicitor working in private practice Trainee solicitor working in commerce and industry Trainee solicitor working in government

Central government Local government Crown Prosecution Service

Trainee solicitor working in other sector (eg trade union, charity) Other (eg paralegal)

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Please answer the questions below only if you are responding on your own behalf as a qualified solicitor, a trainee solicitor or other legal practitioner, and you work in a firm of solicitors. Otherwise, you have now completed all questions. How many partners/directors does your firm have? 1 (sole practitioner)

11–25

2–4

26–80

5–10

81 or more

How many solicitors, excluding partners, does your firm have? 0

6–12

1

13–40

2–5

41–170

171 or more

Which of the expressions listed best describes your position in the firm? Equity partner

Sole practitioner

Salaried partner

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If you answer “other” to this question, please specify

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Submission instructions Thank you for completing our Consultation questionnaire form. Please save a copy of the completed form. Please return it as an email attachment to [email protected], by 14 April 2008. Alternatively, print the completed form and post it to Simon Bullock Solicitors Regulation Authority Berrington Close Ipsley Court Redditch Worc B98 0TD

or

Simon Bullock Solicitors Regulation Authority DX 19114 Redditch

We are unable to acknowledge receipt of responses. We take this opportunity to thank you for your response.

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-----Original Message----From: Gaby Charing Sent: 07 April 2008 17:18 To: #Employment Law Committee; Frances Low; David Ruebain; Mark Stobbs; Richard Schofield; Greg Lewis Subject: Discrimination law review – religious harassment

Dear colleagues Discrimination law review – religious harassment – conversation with Fiona Walker of the review team I learned recently that the discrimination law review team in the Government Equalities Office have not yet started preparing instructions to counsel to draft the Equality Bill; they are still working on policy. This is because of long delays in the political process. I therefore telephoned the official in charge of the review, Melanie Field, to offer a meeting on religious harassment, which is the issue on which our response to the green paper was most vocal. However, as the person working on harassment, Fiona Walker, was moving to another job at the end of the week, I agreed with Melanie that Fiona and I would have a telephone conversation instead. This is a note of that conversation on 1st April. The day before we spoke, I sent Fiona a copy of our response to the green paper. Melanie and Fiona confirmed policy issues are still being worked on and there is no date for publication of the draft Bill, or the Government’s response to the consultation exercise on the green paper. I said as follows. 1. We believe some religious organisations are making demands for exemptions from equality legislation which ought not to be met. The latest example concerns the regulations implementing the EU Gender directive (covering goods, facilities, services and premises), where Christian Voice and their allies are seeking to widen the exemption for religious organisations in relation to gender reassignment, so that, for example, staff of a Christian bookshop or other business would be able to tell transgender customers that they believe gender reassignment to be morally wrong, without being liable for harassment. This is a good case to consider, because only about 5,000 people in the UK will be protected by the legislation. The Christian Institute position might provoke a strong reaction, namely that it is morally wrong to want to bully or offend a member of such a small and vulnerable group, and it might be tempting to reject their request on that ground. 2. We therefore consider it important that the question of exemptions should be decided on the correct basis, bearing in mind that we should not generally legislate on the basis of moral views about other people’s behaviour. I argued that the way to approach the issue was to start from the premise that freedom of FL/client/disc law review 08

speech should be protected unless there is a case for curbing it. Here, the distinction between closed and open environments becomes relevant. In central London I don't have to patronise a bookshop where I am insulted; I can take my custom elsewhere. But we see news stories about village pubs turning themselves into general stores and community centres. What if a church decided to do that, and became the only place in the village where the only transgender person in the village could go? In such circumstances, it might be right to restrict the freedom of Christians to express their beliefs, however honestly held. 3. I said also that we have a problem with the wide definition of harassment, which originates in EU directives in the employment field. In particular, the reference to causing offence is disturbing. In principle, we believe that the law should not curb the expression of opinions, merely because someone finds them offensive. In this respect, closed environments such as the workplace should be regarded as the exception, not the rule. It is legitimate and proportionate to place severe restrictions on what can be said in the workplace, and relevant that offence may be caused. Unfortunately, the EU definition of harassment in employment has been imported unchanged into the gender directive on goods, facilities, services and premises, where we do not think it is appropriate. This is one of the main reasons we oppose extending the legislation to cover religious harassment in the provision of goods, facilities, services and premises. 4. Fiona asked me the following question: if it were a matter of either changing the wording of the definition of harassment across the board, or keeping it as it is across all grounds, which would we choose? I said I thought that we should very much like to see the definition changed across the board (naturally this does not apply to employment), but I would canvass the views of colleagues. I pointed out that changing the definition is not an option for gender, because of the wording of the directive. I should very much welcome your comments on these issues. Kind regards. Gaby Charing Policy Adviser Legal Policy Team The Law Society 113 Chancery Lane LONDON WC2A 1PL DX 56 Lon/Chancery Lane Direct line 020 7320 9559 (internal x 4768) Fax 020 7320 5673 Email [email protected]

FL/client/disc law review 08

Judicial Diversity and the Challenge of Sexuality: Some Preliminary Findings LESLIE J MORAN*

Abstract Judicial diversity debates and reform initiatives have been a feature of several common law jurisdictions over many years. To date two strands of diversity, gender and ethnicity have dominated these debates. General arguments used to rationalise judicial diversity, the need for judicial appointments procedures to conform with the demands of equality and equal opportunity laws, that a diverse judiciary has a greater capacity to be sensitive to the needs and experiences of the diverse users of the legal system, that the judiciary be reflective of the diversity of the nation that it serves, that a diverse judiciary is a more accountable judiciary in complex western legal democracies, necessitates the incorporation of sexuality as a dimension of judicial diversity. But sexuality is and remains notable by its absence. The first objective of this article is to gather together and offer a critical analysis of existing data on the sexual composition of the judiciary. My second objective is to introduce and offer an analysis of new data that I have generated as part of an ongoing study of sexual diversity and the judiciary. The data has been generated by way of a series of interviews with lesbians and gay men who are members of the judiciary and legal professionals in various jurisdictions, in particular in Australia, England and Wales and South Africa. Within the confines of this article I limit my analysis of this data to the ways in which members of the judiciary experience and manage the boundary between invisibility and visibility.

* Professor of Law at Birkbeck College, University of London.

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Introduction

Judicial diversity debates and reform initiatives have been a feature of several common law jurisdictions over many years. These debates seem to have had the highest profile, been most prolific and the problem most intractable in those nation states that draw upon the political/legal model of Western liberal constitutional democracy, share a legal heritage that has its origins in the English legal tradition, the common law, and draw their judiciary from those who practice the law. In jurisdictions such as Australia,1 Canada,2 England and Wales,3 Ireland,4 Northern Ireland,5 Scotland,6 South Africa7 and the USA8 two strands of diversity, gender and ethnicity9 have dominated these debates. More recently the diversity agenda has been expanding to include disability and faith. One dimension of diversity notable by its absence is sexuality. Nothing in the general arguments used to rationalise judicial diversity, that judicial appointments should follow law and policy promoting equal opportunities, that the judiciary needs to be sensitive to the needs and experiences of the diverse users of the legal system, that the judiciary should be reflective of the diversity of the nation that it serves, or that a diverse judiciary is a more accountable judiciary in Western legal democracies, precludes the incorporation of sexuality as a dimension of judicial diversity. A feature of judicial debates focusing upon gender and ethnic diversity is qualitative and quantitative data on experiences and perceptions of bias in the judiciary.10 Quantitative data has also played a key role evidencing the lack of diversity in the judiciary, showing it to be ‘overwhelmingly white, male and from a narrow social 1 1 Sean Cooney, ‘Gender and Judicial Selection: Should There be More Women on the Courts’ (1993) 19 MULR 20; Regina Graycar, ‘The Gender of Judgments: An Introduction’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 262; Regina Graycar, ‘The Gender of Judgments: Some Reflections on “Bias”’ (1998) 32 U Brit Colum L Rev 1; Rachel Davis & George Williams, ‘A Century of Appointments but Only One Woman’ (2003) 28 Alt LJ 54; Rachel Davis & George Williams, ‘Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia’ (2003) 27 MULR 819; Rosemary Hunter, ‘Women in the Legal Profession: The Australian Profile’ in Ulrike Schultz & Gisela Shaw (eds), Women in the World’s Legal Professions (2003) 87; Rosemary Hunter, ‘Fear and Loathing in the Sunshine State’ (2004) 19(44) Aust Fem Studies 145. 2 Bertha Wilson, ‘Will Women Judges Really Make a Difference?’ (1990) 28 Osgoode Hall LJ 507; Claire L’ Heureux-Dube, ‘Outsiders on the Bench: The Continuing Struggle for Equality’ (2001) 16 Wisconsin Women’s LJ 15; Maryka Omatsu, ‘The Fiction of Judicial Impartiality’ (1997) 9 Can J of Women and Law 1; Christine Boyle, Brenna Bhandar, Constance Backhouse, Marilyn MacCrimmon & Audrey Kobayashi, ‘R v RDS: An Editor’s Forum’ (1998) 10 Can J of Women and Law 159. 3 The Constitutional Reform Act 2005 (UK) gives statutory form to a policy of judicial diversity in England and Wales, see s63–64. Scholarship on diversity has been dominated by gender issues, see Brenda Hale ‘Equality and the Judiciary: Why Should We Want More Women Judges’ (2001) PL 489; Brenda Hale, ‘Making a Difference? Why We Need a More Diverse Judiciary’ (2005) 56(3) N Ireland LQ 281; Erika Rackley, ‘Representations of the (Woman) Judge: Hercules, the Little Mermaid, and the Vain and Naked Emperor’ (2002) 22 Legal Stud 602; Kate Malleson, ‘Justifying Equality on the Bench: Why Difference Won’t Do’ (2003) 11 Fem L Studies 1; Clare McGlynn, ‘The Status of Women Lawyers in the United Kingdom’ in Ulrike Schultz & Gisela Shaw (eds), Women in the World’s Legal Professions (2003) 139–158.

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and educational background’ and recording the slow progress towards achieving diversity objectives.11 One reason given for the absence of debate and initiatives relating to sexual diversity in discussions about judicial diversity is the lack of similar data focusing on the impact of sexuality. Data and scholarship relating to sexuality in the context of the judiciary is very limited. No jurisdiction has official data on the sexual diversity of the judiciary and none has plans to change this state of affairs. Studies collecting and analysing experiences and perceptions of sexual orientation bias in court systems in general and the judiciary in particular are rare. Before turning to some of the key findings in these studies it is important to make reference to the wider landscape of scholarship on sexual orientation bias in the law. Scholarship12 mapping this bias and inequality has its origins in 19th Century Europe.13 Attempts to challenge and remove bias have a similar point of origin. Within the confines of this article it is not possible to map either the detail of this work or these initiatives in the many different jurisdictional settings. On a positive note, common to all the jurisdictions mentioned above is the decriminalisation of same-sex relations and the recognition and development of civil and human rights giving recognition and respect to lesbians, gay men, transgender people and bisexuals. But it remains the case that scholarship past and present offers much historical and contemporary evidence of bias and inequality in many different jurisdictional contexts across a wide spectrum of laws and judicial acts of interpretation, in criminal law, civil and human rights, employment law, evidence, family law (including child law), immigration and asylum law, property law, succession, pensions and welfare

4 Ivana Bacik, Cathryn Costello & Eileen Drew, Gender Injustice: Feminising the Legal Professions? (2003). Paul Bartholomew, The Irish Judiciary (1971), was the first critical study to examine the background of judges in Ireland, focusing on the religious and social class background of the Irish judiciary. 5 Section 3 of the Justice (Northern Ireland) Act 2004, amending s5 of the Justice (Northern Ireland) Act 2002 specifies a duty to secure the appointment of a range of persons reflective of community in Northern Ireland. In the Fourth Annual Report of the Commissioner for Judicial Appointments for Northern Ireland it was noted that ‘Most of the debate in Northern Ireland has related to the under-representation of women in some tiers of the judiciary. There is less reference to community or religious background’: Commissioner for Judicial Appointments, 4th Annual Report 1st April 2005 to 31st March 2006 (2006) at [5.15]. This is perhaps somewhat surprising having regard to the impact of religious diversity upon the politics of Northern Ireland and the origins of the recent judicial appointment reforms in that jurisdiction, the Good Friday Agreement of 1998. 6 In Scotland the issue of judicial diversity was addressed in The Scottish Executive, Judicial Appointments: An Inclusive Approach (2000). In that report, the Scottish Executive declared its recognition of the ‘importance of judiciary reflecting the diversity of Scottish Society’ at [3.6]. It went on to give its Gender Audit 2000, which reported that women made up 7 per cent of permanent judges, 0 per cent of temporary judges and 14.2 per cent of sheriffs, as evidence of the problems with the status quo. 7 In South Africa there is a constitutional obligation to promote judicial diversity in Chapter 8 of the Constitution, dealing with the courts and the administration of justice. Section 174(2) declares that ‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’ See Kate Malleson, ‘Assessing the Performance of the Judicial Service Commission’ (1999) 116(1) S African LJ 36.

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benefits, to name but a few.14 Returning to the empirical data on courtroom experiences and perceptions of bias, Todd Brower has identified four studies that focus on sexual orientation bias in the courts.15 What does the limited empirical data tell us? Brower noted that all the studies reported that: Once sexual orientation becomes visible, it significantly affects the experiences of both lesbian and gay court users and court employees … the judicial system is sometimes hostile…16

For example in the Californian study 56 per cent of respondents reported bias occurring where their contact with the courts involved a sexual orientation issue.17 The same study also suggested that the more extended and the more active the contact with the courts, the more negative the experience and the greater the perceived threat of discrimination.18 Another common denominator in these studies is the finding that bias mainly takes the form of the use of derogatory terms, ridicule, snickering and jokes. Brower’s own research in England found that nearly two thirds of all respondents had heard negative comments, ridicule and snickering or jokes directed at gay men and lesbians in the court service (though not in open court). In open court over one in four respondents heard negative comments and over one in five reported ridicule, snickering and jokes about gay men and lesbians.19 In their combination, existing scholarship on bias in the law and the court service research, limited and problematic though it may be20 offers some support for the hypothesis that sexual orientation bias in the courts in general, and the judiciary in particular, may fail to serve the needs of a sexually diverse community and thereby fail to establish and maintain legitimacy in the service of a sexually diverse democracy. 8 On gender and the judiciary see for example Judith Resnick, ‘On the Bias: Feminist Reconsiderations of the Aspirations of Our Judges’ (1987–1988) S Cal L Rev 1877; Judith Resnik, ‘Asking about Gender in Courts’ (1996) 21 Signs 952; Patricia Martin, John Reynolds & Shelly Keith, ‘Gender Bias and Feminist Consciousness among Judges and Attorneys: A Standpoint Theory Analysis’ (2002) 27 Signs 665. On race see Thomas Uhlman, ‘Black Elite Decision Making: The Case of Trial Judges’ (1978) 22 Am J of Pol Science 884; Susan Welch, Michael Combs & John Gruhl, ‘Do Black Judges Make a Difference?’ (1988) 32 Am J of Pol Sci 126; Julian Cook,’Review: Dream Makers: Black Judges on Justice’ (1996) 94 Mich LR 1479. 9 Prior to that social class and political affiliation were the dominant themes within scholarship on judicial background. See for example John Griffith, The Politics of the Judiciary (1st ed, 1977). 10 The website of the National Centre for State Courts which lists state and federal studies of gender and racial bias in the courts. Over 30 studies focus on gender, see (4 Oct 2006). Over 40 focus on race, see (4 October 2006). In 1994 the Australian Parliament undertook a similar initiative leading to the report: Australia, Parliament, Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (1994). In the UK the Department of Constitutional Affairs has commissioned various studies on racial bias. For example see Roger Hood, Steven Shute & Florence Seemungal, Ethnic Minorities in the Criminal Courts: Perceptions of Fairness and Equality of Treatment, Research Series 2/03 (2003); Hazel Genn, Ben Lever, Lauren Gray & Nigel Balmer, Tribunals for Diverse Users, Research Report 1/2006 (2006).

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Data is also lacking on the impact of sexuality or sexual orientation bias upon the experiences and perceptions of those who hold judicial office, despite the fact that openly gay and lesbian individuals have been appointed to judicial office since the 1970s.21 Three short autobiographical notes by gay men and lesbians, all holding judicial office in the USA, were published in Robin Buhrke’s edited volume A Matter of Justice: Lesbians and Gay Men in Law Enforcement. One is by Albert J Mrozik Jr a magistrate in Asbury Park New Jersey.22 A second is by Marcy Kahn a judge who was elected to office as one of the first two openly lesbian Supreme Court Justices in the State of New York.23 The third is by Jerry R Birdwell, an ex-judge of the Criminal District Court Dallas Texas who was appointed to the state court by the then Governor Ann Richards and seven months later, after a homophobic campaign against him, lost his bid for re-election.24 Another more recent autobiographical account is to be found in the published memoirs of Edwin Cameron, a judge in the South African Supreme Court of Appeal. In Witness to Aids25 Cameron gives an account of his coming out as an HIV positive gay man, his involvement with HIV/AIDS policy and activism and details the impact of these developments upon some of his experiences as a judge. Such a small and idiosyncratic sample of reflections makes it difficult to draw general conclusions about the experiences of sexuality and sexual orientation bias in the judiciary. I offer three tentative conclusions. One, that there is evident sexual diversity within in the judiciary. The judiciary is overwhelmingly heterosexual and is always perceived to be heterosexual: non-heterosexuals will be out of place.26 11 Commission for Judicial Appointments, Annual Report 2002 (2002) at [6.10]: (4 Oct 2006). The Commission was established in 2001 as a result of the recommendations from a review inaugurated in 1999, undertaken by Sir Leonard Peach, to investigate the operation of the appointments procedures in relation to all judicial appointments and Queen’s Counsel in England the Wales. The Peach report was published in 2001: . Its primary function was to exercise an independent oversight of the appointments process relating to judicial appointments and the appointment of Silks. For a short introduction to the background and function of the Commission see the Annual Report 2002. The Commission ceased to operate in April 2006 as a result of reforms introduced under the Constitutional Reform Act 2005. While this particular example is from England and Wales, it is a common point of departure in other jurisdictions. 12 Media reports, particularly in the lesbian and gay press are another source of data. For example on 1 September 2005, the Pink Paper, a weekly lesbian and gay newspaper circulated throughout venues and organisations in England and Wales, carried a front-page story of ‘institutional homophobia’ in the judiciary. See Tris Reid-Smith, ‘Judge Says Sorry for “Buggery” Comments’ Pink Paper (1 September 2005). Stonewall, a London based gay and lesbian parliamentary lobby and law reform group, complained to the then Home Secretary, Charles Clarke, head of the government department with responsibility for immigration and asylum matters, about comments made by Judge John Freeman in the course of rejecting an application for asylum by a 29-year-old gay man from Iran. While the government condemned the incident it did not initiate a wider investigation into sexual orientation bias in the judiciary in that jurisdiction. 13 For a useful historical introduction see Harry Cocks, Nameless Offences: Homosexual Desire in the 19th Century (2003); Jeffrey Weeks, Sex, Politics and Society: The Regulation of Sexuality Since 1800 (1981); Louis Crompton, ‘The Myth of Lesbian Impunity’ (1980) 6 J of Homosexuality 11; Lisa Duggan, Sapphic Slashers (2000).

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Members of the judiciary who are openly lesbian or gay will be exceptional. Second, they may experience discrimination and homophobia, which may throw up particular challenges for those who wish to pursue judicial office and also for those appointed. In the most extreme case homophobia may make it difficult if not impossible to perform the role of judge and may be used to challenge a person’s fitness to hold office. Third, that lesbians and gay men on the bench have the potential to make a difference, bringing different perspectives to the bench and bringing individuals into office to more effectively challenge prejudice and that these talents may be thwarted by homophobia. With the findings from existing research in mind I want to turn to the research objectives I wish to pursue in this article. I begin my substantive study of the sexual diversity of the judiciary by way of a reading and analysis of Maxwell Barrett’s study of the judges of the UK’s supreme court, the House of Lords. Barrett’s study covers the judiciary in post between 1876, when the current court was established, and 2000 when his study ended. I have extended Barrett’s research adding information about the judges appointed between 2000 and 2006. My intention is to use Barrett’s study to examine how the sexual diversity (the sexual homogeneity) of the judiciary been produced and sustained. His study also provides an opportunity for me to consider the impact that reforms that recognise same-sex marriage (or other intimate relations such as civil partnership) may have upon the sexual diversity of the judiciary. How might they both facilitate and limit the production of a more sexually diverse judicial body? My second objective is to introduce and offer an analysis of new data that I have generated as part of an

14 There is an extensive literature dedicated to documenting and recording the operation of bias in the production of inequality in the law made up of monographs, edited collections, articles in scholarly journals and specialist journals. The list of works is too long and diverse to record here. For an introduction to the literature see Leslie Moran, ‘Lesbian and Gay Bodies of Law’ in Diane Richardson & Steven Seidman (eds), Handbook of Lesbian and Gay Studies (2002); and Leslie Moran, Sexuality, Identity and Law (2006). 15 The four studies are: Judicial Council of California, Access and Fairness Committee, Sexual Orientation Fairness Sub Committee, Sexual Orientation Fairness in Californian Courts (2001); New Jersey Supreme Court, Task Force on Sexual Orientation Issues, Final Report (2001); Todd Brower, Sexual Orientation Fairness in the Courts of England and Wales, Report on the 2003 Survey of the Department of Constitutional Affairs, Rainbow Network (unpublished 2003); Todd Brower, Sexual Orientation Fairness in the Courts of England and Wales, Report on the 2005 Survey of the Department of Constitutional Affairs, Rainbow Network (unpublished 2005). A useful analysis of the themes that emerge from these studies is to be found in Todd Brower, Multistable Figures: Sexual Orientation Visibility and its Effects on Experiences of Sexual Minorities in the Courts (2006): (4 Oct 2006). Information about Brower’s English studies are to be found in Todd Brower, ‘Pride and Prejudice: Results of an Empirical Study of Sexual Orientation Fairness in the Courts of England and Wales (2006) 13 Buffalo Women’s LJ 18. 16 Brower, Multistable Figures, above n15 at 2. 17 Brower, Multistable Figures, above n15 at 8–9. Brower’s own studies of experiences and perceptions of court service employees attached to England’s Department of Constitutional Affairs reported a similar situation in that jurisdiction. See Brower, Report on the 2003 Survey, above n15 at 6. 18 Brower, Multistable Figures, above n15 at 28 & 31.

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ongoing study of sexual diversity and the judiciary. The data has been generated by way of a series of interviews with lesbians and gay men who are members of the judiciary and legal profession in various jurisdictions, in particular Australia, England and Wales and South Africa. Within the confines of this article I have confined my analysis of this data to the ways in which members of the judiciary experience and manage the boundary between invisibility and visibility. In part my focus upon this matter reflects its importance in the interview data. In part it draws upon one of the key findings of Todd Brower’s analysis of existing data on sexual orientation discrimination, that invisibility is a central issue in understanding experiences of bias in courtroom settings. But before proceeding further I want to reflect upon some of the general and theoretical challenges raised by an engagement with diversity politics in general and sexual diversity in particular. Queer theory has been an important influence challenging the identity politics associated with sexual diversity, problematising assumptions and exposing omissions that shape sexual identities. Seidman explains that queer theory demands that we question ‘what has been the dominant foundational concept of both homophobic and affirmative homosexual theory: the assumption of a homosexual subject or identity.’27 I want to highlight three connected aspects of this challenge. First, I want to examine assumptions of the singularity and cohesion of sexual identity categories such as ‘lesbian’ and ‘gay’. Second, I want to develop a critique of the use of identity in relation to ideas of community. More specifically I want to consider the use of a ‘minority’ and a 19 See Brower, Report on the 2005 Survey, above n15. While Brower suggests in this later report that there has been some improvement in experiences and perceptions of fairness in the courts, again he qualifies the general findings with a note of caution: ‘Other survey data and the factor of invisibility suggest that some LGBT individuals’ experiences are much less favourable when one asks about specific treatment and concrete observations’: at 6. 20 With the exception of the California study the overwhelming source of the data in the other surveys comes from court staff. It is difficult to determine if the workplace experiences and employment relation have a positive or negative effect on their experiences and perceptions. 21 Rand Schrader was appointed to judicial office, as a municipal judge, in Los Angeles in 1979. He was one of the first openly gay men to be appointed to judicial office. See Betty Berzon, ‘Lesbian and Gay Professionals in the Closet: Do They Serve or Only Hide? in Teresa Decrescenzo (ed), Gay and Lesbian Professionals in the Closet: Who’s In, Who’s Out and Why (1997); and Tracey Wilkinson, ‘Municipal Court Judges Faces Challenge of AIDS — Disease: Rand Schrader Says He’s Going Public to Show that Stricken People Can Live Productive Lives’ Los Angeles Times (25 November 1991): (14 April 2006). 22 Albert Mrozik Jr ‘Albert J Mrozik Jr’ in Robin Buhrke, (ed) A Matter of Justice: Lesbians and Gay Men in Law Enforcement, (1997) 182. 23 Marcy Kahn, ‘Marcy Kahn’ in Robin Buhrke, (ed) A Matter of Justice: Lesbians and Gay Men in Law Enforcement, (1997) 187. 24 Jerry Birdwell, ‘Jerry R Birdwell’ in Robin Buhrke (ed), A Matter of Justice: Lesbians and Gay Men in Law Enforcement (1996) 193. 25 Edwin Cameron, Witness to AIDS (2005); for further information about the book see (4 Oct 2006). 26 Id at 19. 27 Steven Seidman, ‘Queer-ing Sociology, Sociologizing Queer Theory: An Introduction’ (1994) 12 Socialogical Theory 166 at 173.

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‘minority community’ model of individual and group identity in relation to sexuality, a model more commonly associated with racial and ethnic minority identities. The third issue I want to address is the impact that assumptions about the sexual identity categories of ‘lesbian’ and ‘gay’ (and a critique of those assumptions) might have upon the way ‘heterosexuality’ is understood and addressed in judicial diversity settings. I want to use the data generated by way of interviews with lesbians and gay men who are members of the judiciary in various jurisdictions to explore these issues.

2.

The Challenge of Sexual Identity

Let me begin with assumptions about the singularity and cohesion of categories of sexual identity. Judge Katherine Satchwell sits as a judge in South Africa. She is a member of the bench of the High Court sitting in Johannesburg. While in post she brought a successful case under the sexual orientation equality provisions of the South African Constitution before the Constitutional Court demanding the extension of judicial pension provisions to incorporate same-sex partners, including her own partner.28 Commenting that she had never experienced a problem being ‘out’ as a lesbian on the bench, Justice Satchwell offered the following explanation: Let me just tell you my experience. I am a white middle class South African, which immediately catapults me from birth, even though I was born in Birmingham [England], into a life of great privilege and confidence. I come from an educated background. I come from an extremely liberal background. One might almost say politically radical …. those things immediately presented me in life with confidence and arrogance and the ability to be myself …. When I went to university I went to a white but English speaking, very liberal, university that prided itself on being against the government, even though it wasn’t really. And when the time came for a professional career I sought out a very radical one.29

Here Justice Satchwell draws attention to many factors that have influenced her experiences and perceptions of her sexual identity: ethnicity and race, social class, education and political beliefs. While this example arises in the experience of one person in a very specific context, a judge in post-apartheid South Africa, these issues are pertinent to other individuals and those in different jurisdictional settings. So for example a fellow member of the South African judiciary, Justice Anna Marie de Vos, who at the time I interviewed her was a lesbian sitting on the Pretoria Bench of the High Court, drew attention to the particular impact of gender upon her judicial experiences. She described a key dimension of her judicial experience of diversity on the Pretoria Bench in the following terms: 28 Satchwell v The President of the Republic of South Africa 2002 (6) SA 1 (CC). Copies of the papers submitted in this case are available at: (3 Oct 2006). 29 All quotations from lesbian and gay men on the bench are taken from transcripts of interviews on file with the author. All interviews were conducted between November 2005 and March 2006.

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I’m the only woman judge amongst 30 judges and it’s been like this for five years. They’ve had 12 years since the new dispensation to do something about it and they haven’t. They have appointed women in other divisions but not in my division because my judge president is very conservative. Obviously, because why else? It’s not because Pretoria can’t produce women judges. That is complete nonsense.

When I asked if the reason for this gender imbalance was a gender imbalance in the wider legal profession Justice de Vos replied: No! They have managed to scrape some women together for the Cape Bench and the Transki Bench and even Bloemfontein, for Pete’s sake. In Johannesburg there must be eight or nine or ten women on the bench. Maybe that’s too optimistic, maybe six or seven. But not in Pretoria.

In April 2006 Justice de Vos tendered her resignation from the bench. In her letter to the President of South Africa, Thabo Mbeki, she expressed the frustrations she experienced generated by the failure to improve gender equality during the six years she sat on the Pretoria Bench.30 The press reported that this was an important factor informing her decision to resign. Religious belief may be another factor impacting on identity. For example Justice Michael Kirby of the Australian High Court, commenting upon the potential impact that hostility focusing upon his sexual orientation might have upon him, explained: Because I was brought up in a Christian tradition I really can cut away horrible things that are done to me or that I hear said of me and unkindness that is displayed to me by judges and others, because that is how I was brought up … That is how I am.

Location is another important influence. Justice Satchwell explained: … the one comment I would make is that in a way the South African experience, and this may sound incredibly arrogant, but the South African experience is so particular, so unusual, so complex, so unresolved, that in a way issues pertaining to diversity teach us so little when one might learn more from a homogeneous society…

Here Satchwell highlights the impact of the specific social, political and cultural conditions upon sexual identity in relation to national and jurisdictional differences. South Africa, she suggests, offers a very particular and complex setting that impacts upon the formation, deployment and effect of lesbian and, one might add, gay identities in a judicial setting. The sexual politics of identity will be different in different national settings.31 Institutional settings, in this instance the institutions of judgment and justice, are also an important context, which needs 30 Zelda Venter, ‘Top Female Judge hangs up Robe for Good’ Pretoria News (29 March 2006): (3 Oct 2006). Shortly after Justice de Vos resigned two women were appointed to the Pretoria bench, see Zelda Venter & Wendy Jasson da Costa, ‘Pretoria Bench Gets Two New Women Judges’ Pretoria News (15 May 2006).

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to be taken into account in understanding the operation of sexual identity. The national particularity and complexity of sexual identity will be further mediated in its relationship through this particular national institutional setting. Kay Goodall’s analysis of the challenges of comparative judicial studies is useful here. Comparative studies, she argues, draw attention to the need to be sensitive to the impact of ‘different structural influences in each legal system’.32 These may at least include sensitivity to the different constitutional arrangements (such as the impact of judicial election in contrast to the appointment by government or a commission of various stakeholders), the size and composition of the legal profession, different judicial work practices, the size and degree of autonomy or inter-dependence of a legal system, and the impact of different degrees of juridification of everyday relations. Sexual diversity in the context of the courts and the judiciary will not only be subject to the complexities of sexual identity but will also be affected by the idiosyncrasies and peculiarities of each jurisdictional and institutional setting. I now want to turn to sexual identity categories as a collective identity and as a marker of community. As a symbol of community, identity categories suggest that people who identify with a particular sexuality have things in common. Seidman suggests that the model of community imagined by reference to ‘lesbian’ and ‘gay’ identity tends to adopt a ‘minority’ and ‘minority community’ model that is most commonly associated with racial and ethnic minority identities.33 The ‘minority community’ model assumes that the identity category gives a coherence, a homogeneity, a shared singularity to all those who resort to that identity category. In turn these different communities, when conjoined, make up the diversity that the nation now represents. This logic of communities (multiple minority communities) making up the larger community informs the wider characterisation of contemporary democracy as a multicultural, cosmopolitan polity.34 Applied to lesbians and gay men the logic of the minority model suggests that ‘lesbians-andgay-men’ may be identified collectively as a single community. This assumes that the lesbian-and-gay community can be singled out and differentiated; that it is a relatively coherent, homogenous, socially, culturally and spatially distinct and separable entity. Furthermore, in that form it becomes one of the pieces of the community jigsaw, of a multicultural or cosmopolitan whole. My research data illustrates some of the problems with the idea of sexual communities and the minority model. Comments made by Justice Satchwell explore sexual identity as a marker of things in common, of community. She 31 Carl Stychin has done some excellent work in this area, see Carl Stychin, A Nation by Rights: National Cultures, Sexual Identity Politics, and the Discourse of Rights (1998) and Carl Stychin, Governing Sexuality: The Changing Politics of Citizenship and Law Reform (2003). 32 Kay Goodall ‘What Defines the Roles of a Judge? First Steps towards the Construction of a Comparative Method’ (2000) 51 N Ireland LQ 535. 33 Seidman, above n27 at 171. 34 I have explored some of the problems, challenges and uses of the minority idea of sexual identities in the context of homophobic violence and hate crime reform: see Leslie Moran, Beverley Skeggs, Paul Tyrer & Karen Corteen, Sexuality and the Politics of Violence and Safety (2004).

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reflects upon the significance of the term ‘lesbian’ and its capacity to provide an identity in common with other lesbians, in this instance with fellow lesbian, Justice de Vos. Like Justice Satchwell, Justice de Vos has had a high profile as a lesbian as the result of bringing a case under the sexual orientation equality provisions of the South African Constitution, in this instance with regard to discrimination in relation to same-sex adoption.35 Reflecting upon the way the terms ‘lesbian’ might suggest things in common with Justice de Vos, Justice Satchwell explained: … what I am saying is that I have nothing in common with Anna Marie de Vos. She is a white Afrikaner from Pretoria. She was never engaged in the struggle. And I’m not interested in her politics. Do you see? That diversity is not enough to bridge certain things. That is not to say that when she had her court case, in fact our cases happened to be heard at the same time, we didn’t know each other. My partner and I invited her and her partner to dinner. We thought, “Well let’s meet. Our names are always joined in the papers all the time: lesbians and judges.” So we met. When they won their case they invited us to a celebration lunch. That has been the extent of our socialising.

Being lesbians, Satchwell explains, is ‘not enough’ to cement the experience of being in common. She is separated from Justice de Vos by ethnic background: de Vos is Afrikaner in contrast to Justice Satchwell’s background, which is English South African. Politics also separates them. During the course of the interview Justice Satchwell identified her privileged left liberal background and engagement in the anti-apartheid ‘struggle’ as central to her politics, her position on the bench and her sense of community, which she defined as a community made up of ‘struggle people’. This she suggested is very different from the social cultural and political background of Justice de Vos. The being in common that ‘lesbian’ provides is described here as in part serendipitous, being something that arises out of coincidence (the litigation), in part it is imposed externally, by the media, and in part it is a conscious choice of individuals deciding to act in common. Sexual commonality is not so much something that is merely brought into being by a name, uniformly applicable, taken for granted or enduring, but may be an alien and alienating, qualified, partial and fleeting experience. The insights offered by queer theory and the observations made by interviewees suggest that merely adding lesbian and gay sexualities to the agenda of judicial diversity is problematic. Furthermore, queer theory also suggests that to expose, problematise and critique assumptions about lesbian and gay identity is also insufficient. In short, one effect of such a critique may be to reinforce already commonplace associations and assumptions about ‘lesbian’ and ‘gay’ as identities, such as that they are social fabrications, unstable and incoherent, while leaving the positive attributes and qualities already commonly associated with heterosexuality, such as coherence, stability and homogeneity unchallenged. This 35 Du Toit and De Vos v The Minister for Welfare and Population Development 2003 (2) SA 198 (CC). For further documentation on the case see (3 Oct 2006). The Constitutional Court decided the Satchwell issue in July 2002 and the De Vos case in September of the same year.

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is particularly problematic as this distribution of differences between, on the one hand lesbian/gay, and on the other, heterosexual, can readily be accommodated within an existing logic that positions heterosexuality as the positive (the superior, the norm, the natural, the civilised, the good and the healthy) over against ‘lesbian’ and ‘gay’ which are associated with the negative. As Seidman notes, this threatens to reproduce not only the hetero/homo binary,36 but also the values that secure the status and privilege associated with heterosexuality. Clearly this is problematic and needs to be challenged. Queer theory, Seidman argues, is not of relevance only to the sexual identities of gay men or lesbians but of significance to all sexual identity categories. It aspires to transform homosexual theory into a general social theory from which to analyse whole societies, thereby bringing heterosexuality into the frame of critical analysis.37 How do you examine heterosexuality without bringing into play all of the problematic assumptions about the nature of sexual identities already identified? An important tool in achieving this objective is the concept of heteronormativity. Heteronormativity focuses not on sexual identities, such as ‘heterosexuality’, but on the ‘sexual regime’ which Seidman describes as ‘a field of sexual meanings, discourses and practices that are interlaced with social institutions and movements’.38 In their seminal essay ‘Sex in Public’, Berlant and Warner explain that ‘heteronormativity’ is concerned with ‘heterosexual culture rather than heterosexuality’: Heteronormativity is thus a concept distinct from heterosexuality. One of the most conspicuous differences is that it has no parallel, unlike heterosexuality, which organizes homosexuality, as its opposite. Because homosexuality can never have the invisible, tacit society-founding rightness that heterosexuality has, it would not be possible to speak of ’homonormativity‘ in the same sense.39

Heteronormativity offers a way of understanding the fabrication and reproduction of the homo/hetero binary and the fabrication of the hetero as norm, but Berlant and Warner suggest that it does not itself work within that binary relation. It offers a general social theory of the sexual order of whole societies. Heteronormativity requires a shift in approach from identity to culture. It requires that we turn our attention to the institutions, structures of understanding, and practical orientations that not only bring heterosexuality into being but make that sexuality seem not only coherent – that is, organised as a sexuality – but also privileged. Its privilege, they suggest, can take several (sometimes contradictory) forms. One is manifest in the way heterosexuality works as the unmarked, as the basic idiom of the personal and the social. A second manifestation is in heterosexuality’s manifestation as a natural state. A third form of privilege is in the way heterosexuality is projected as an ideal or moral accomplishment.40 Heteronormativity consists less of norms that 36 37 38 39

Seidman, above n27 at 174. Ibid. Id at 169. Lauren Berlant & Michael Warner, ‘Sex in Public’ (1998) 24 Critical Inquiry 547 at 548 ff 2.

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could be summarised as a body of doctrine and more a diffuse sense of rightness produced in contradictory manifestations — often unconscious, immanent to practice or to institutions. Another objective of this cultural turn is to expose the provisional nature of the apparent coherence of heterosexuality. Heterosexuality, Berlant and Warner suggest, is always provisional. This is based upon a conclusion that it is difficult to imagine any culture and more specifically to imagine heterosexuality as a culture that is so one dimensional, or that is reduced to a single ideology, or a unified set of shared beliefs. Where such displays of singularity and coherence are offered, they argue, they are never more than a provisional unity. The purported totality of heterosexuality, and displays of its cohesion and singularity, not only seek to mask but also expose the fragility of the category of heterosexuality. A heteronormative approach requires that these conflicts no longer go unrecognised. It also requires that we take seriously, ‘… the metacultural work of the very category of heterosexuality, which consolidates as a single sexuality widely differing practices, norms and institutions.’41 Thinking of sexuality as a sexual regime or culture, rather than an identity, requires us to recognise the diffusion of heterosexuality. While heterosexual culture is the central organising index of social membership, it has no centre, no singular moment of operation or final moment of realisation. Its temporal and spatial diffusion potentially makes it much more difficult to recognise its forms of operation.42 Such is its diffuse nature, Berlant and Warner suggest, ‘[i]t involves so many practices that are not sex that a world in which this hegemonic cluster would not be dominant is, at this point, unimaginable.’43 How does heteronormativity shift the frame of inquiry into sexual diversity in the judiciary? One key insight is that as a ‘regime’ and a pervasive culture, sexuality is not so much absent, rarely spoken of or predominantly missing from the data or the agenda but, as Berlant and Warner explain, it is always in play and always in public. Thus, the perceived absence of sexuality from judicial diversity debates and judicial studies more generally needs to be treated with caution. Queer theory points out that a requirement to be silent about sexuality does not so much lead to the disappearance of sexuality but informs its mode of appearance. Silence is a device by which sexuality appears in public, and more specifically it is one of the devices through which heterosexuality as the norm is (re)produced in society in general and, queer theory would suggest, in the institution of the judiciary in particular. Heteronormativity suggests that the absence of references to sexuality in current judicial studies is nothing more than the public display of the sexuality of the judiciary, as exclusively heterosexual. The appearance of references to same-sex behaviour and same-sex relations of intimacy in judicial settings is not so much an invasion of something that is alien to judicial settings but perhaps more a shift or a disruption of the existing public sexual culture of that institution. Another important insight offered by queer theory is that there is a need to be 40 41 42 43

See Lee Edelman, No Future: Queer Theory and the Death Drive (2004). Berlant & Warner, above n39 at 553. Id at 556. Id at 558.

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cautious about any alignments between sexuality, privacy and the private. As Sedgwick has noted, the public/private divide has played a major role in the public management and display of sexuality in general, and the generation and display of the homo/hetero binary as a violent hierarchy, in structuring and framing the appearance and representation of sexuality in a particular way, and in requiring conformity with a particular pattern and performance of intimacy.44 Attempts to confine sexuality to the private and domestic sphere do not take sexuality out of the public realm, they are central to its public performance. Through heteronormativity various research questions emerge. For example, what public form does sexuality take under the experienced effects of this ‘disappearance’? How does the particular ideal or moral model of intimacy associated with heterosexuality, as the unmarked, indistinctive, indifferent, and as a partisan position that takes on the form of being quintessentially non-partisan, come into being in a judicial setting? How does the economy of prohibitions work in the generation and reproduction of the current public sexual culture of the judiciary? I hope to explore some of these matters in the remainder of this article.

3.

Sexual Diversity in the Judiciary: Institutions of Intimacy

I begin my analysis of the sexual diversity of the judiciary with a study of the judges of Britain’s highest judicial body, the House of Lords.45 Maxwell Barrett’s study of the Law Lords includes a brief biographical note on each of the judges who have been in post between 1876, when the current court was established, and 2000 when his study ended. I have extended Barrett’s research adding information about the judges appointed between 2000 and 2006. One aspect of the biographical data is of particular interest here: the marital status of the judges. Between 1876 and 2006 there have been 104 appointments, 103 men and one woman (the first woman, Brenda Hale, was appointed in 2004). Ninety-seven judges were ‘married’ and six ‘never married’.46 The marital status of the current court (as of 1 April 2006) is as follows: of the 12 Law Lords 11 are ‘married’ and one ‘never married’. What relevance does this have to a study of sexual diversity in the judiciary? Throughout the period covered by this data ‘marriage’ has been and remains an intimate and domestic relationship and institution that can only be formally entered into and officially recognised by two people who are respectively a man and a woman.47 When read through sexuality, marriage is one institution that can be read not only as heterosexual but also as a particularly privileged, state sanctioned ideal of sexual intimacy and sexual identity. The social, political and moral superiority of this form of intimacy is amplified when account is taken of the criminal and civil prohibitions circumscribing other relations of intimacy in general and same-sex 44 Eve Sedgwick, Epistemology of the Closet (1990). 45 Maxwell Barrett, The Law Lords: An Account of the Workings of Britain’s Highest Judicial Body and the Men Who Preside Over It (2001). 46 ‘Never married’ is Barrett’s category, not my own. 47 A separate institution, which came into effect in December 2005, has been created in the UK for legally recognised and binding same-sex relationships, under the Civil Partnership Act 2004.

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relations in particular during the period. Barrett’s distinction between ‘married’ and ‘never married’ echoes the privilege associated with ‘marriage’. Marriage (and thereby heterosexuality) provides the overarching frame of understanding and the basic personal and social idiom against which all is measured and made sense of.48 Based upon Barrett’s research of the judges who have made up the UK’s highest court, the evidence suggests that it is a judicial institution that may best be characterised as exclusively heterosexual. The dominance of ‘married’ judges in this institution is perhaps not surprising having regard to the privileges and prohibitions associated with ‘marriage’ as an institution of intimacy. However, I want to suggest that we should be surprised by the appearance of information about the marital status of judges in Barrett’s study. Certainly in England and Wales, official information about judges (and their Lordships in particular) is in general very limited and more specifically contains no information about marital status.49 Marital status, at least in this jurisdiction, has no place in official biographies.50 Barrett gathered his marital status information from other sources. Like Barrett I turned to unofficial biographical accounts, in particular Who’s Who, to obtain the information about the marital status of the current Law Lords.51 How are we to make sense of the marital profile of this judicial institution? Is it right to conclude that a particular marital status and thereby a particular sexuality has been a requirement for judicial office? One response to these questions might be that the absence of information about marital status from official biographies indicates that neither the institution of marriage nor the (hetero)sexuality that informs that institution is relevant to 48 The distinction between ‘married’ and ‘never married’ is also used to accommodate those who have been married but are now divorced and single. It has the effect of bringing them back within the marital institution. It also has the effect of potentially erasing their sexual difference; they might have been divorced subsequent to coming out as lesbian or gay but remain ‘married’ according to this distinction. 49 The new website, Judiciary of England and Wales: (2 Oct 2006), does offer some biographical information under the heading ‘Senior Judiciary Biographies’. Only five judges qualify, being the five Heads of Division, who are described as ‘the most senior judges in England and Wales’. The biographical information is limited, being made up of details of the judge’s official title, name and date of birth, educational background and professional career milestones. With respect to the Law Lords the website offers less information, being limited to their name and title, date of birth and dates that plot their judicial careers. Gender is also part of biographical information, being identified by title and name. This is a relatively new website. One explanation for the lack of information is that it is a reflection of the novelty of the website and the limited investment, of funding and time, made in this new initiative. 50 This is also the case in Australia, see (29 Sept 2006). It is not always the case. For example the biographical notes of the judges of the South African Constitutional Court give ‘personal’ details’, which include information about marital status. This is provided for all current judges, see (2 Oct 2006). Information about former and acting judges is sometimes more limited. 51 The individual named in Who’s Who provides the information. It is possible to leave information about marital status out.

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judicial appointments. This silence is not necessarily indicative of an absence of a policy. Writing in response to an announcement in 1991 that henceforth homosexuality would no longer be a bar to judicial office, English journalist Colin Richardson revealed that in the past, at least under the Lord Chancellor Lord Hailsham (Conservative Lord Chancellor from 1970–1974 and 1979–1987), a policy only to appoint people who were married was in operation. This policy was avowedly to ensure that there would be no ‘homosexual controversy’ in the judiciary. As such, the marital policy operated as a sexuality policy: dedicated to achieving a heterosexual judiciary. Anthony Scrivener QC, then outgoing chairman of the Bar Council,52 interviewed at the time of this revelation explained to Richardson that it was an ‘open secret’ that candidates for most judicial appointments were rigorously vetted and that this procedure included their private lives.53 While the paucity of ‘never married’ Law Lords (and with one recent exception they have all been male Law Lords) is not confined to this period, the marital profile of the Law Lords over the 130 years duration of that institution may suggest that a marital requirement was, if not at all times explicitly then at least implicitly, a policy which had the objective, if not the effect, of securing a uniform (male) heterosexual judiciary, at least in that institution.54 Returning briefly to queer theory, its insights also suggest that the absence of an explicit sexuality policy is not indicative of the absence of sexual prerequisites. Silence, queer theory shows us, is one manifestation of the privileged status associated with the forms of sexual intimacy and identity that is heterosexuality. Being unmarked is the way heterosexuality as the ‘ideal’ and the ‘natural’ is manifest. Heterosexuality in its absence is not so much a missing requirement but a pervasive one. Data from an interview with Martin Bowley, a Queen’s Counsel (Silk) now retired, offers an insight into the operation of this norm during the time of Lord Hailsham’s marital policy. Bowley had been appointed as Recorder, a part time judicial appointment, in 1978 and he held this post for 10 years. He never held a permanent judicial post. In the mid 1980s he was called to an interview at Westminster by the head of the judicial appointments division, who was then Sir Thomas Legg QC. Bowley explained that it was the normal procedure of the day to meet with Silks to discuss their career ambitions and in particular to discuss their interest in a full time judicial career. Bowley describes what took place in the following extract: 52 The Bar Council is the senior ruling professional body regulating barristers. 53 Colin Richardson, ‘Homosexuality and the Judiciary’ (1992) 142 New Law Journal 130 at 130– 131. 54 The requirement of ‘good character’ is another context in which an applicant’s intimate relations have been considered relevant to judicial office. Failure to satisfy the requirement of ‘good character’ is a disciplinary matter. See William Nimmo Smith & James Friel, The Report on an Inquiry into Allegations of a Conspiracy to Pervert the Course of Justice in Scotland (1993). ‘Good character’ remains one of the key appointment criteria for judicial appointment in England and Wales, see Constitutional Reform Act 2005 s63(2), and in relation to the power to discipline members of the judiciary see s108. No guidance has been published as to the meaning of ‘good character’ under the new legislation.

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… in the middle of the interview Legg suddenly says to me, ‘Are you a homosexual?’ This is long before The Sun published it.55 I replied, ‘What has it got to do with you?’ This is all on record. He said, ‘I have to advise you that it is the policy of the current Lord Chancellor,’ who was Hailsham, ‘not to appoint a homosexual to any full time judicial appointment because of the dangers of blackmail.’ … I remember saying to Legg at the time, ‘Well you may remember that it was only very recently that the ‘guilty party’ in divorce actions could never be appointed. So that has changed and I hope this will change.’ And of course it did when James McKay changed the rules and fought it …. So that was the attitude in the 1980s. From then on I realised that I would not be appointed. By the time James McKay changed the rules I was nearly 60 so I was well over the age for appointments…

Bowley’s comments raise several matters. First, it is important to note that prior to this career interview Bowley did in fact hold a (part time) judicial post. How are we to make sense of this in the context of an express or implied requirement of heterosexuality? One explanation might be that through the operation of the assumption of heterosexuality Bowley ‘passed’ as heterosexual. At least at the time of his appointment we might presume that no one was capable or willing to question the assumption of heterosexuality in this context. Following the insights offered by queer theory in general and heteronormativity in particular, this can be read both as the successful operation of the requirement of heterosexuality, the norm remaining in place and apparently effective, and as evidence of the fact that in this instance it was not fully realised, as other sexualities may go unrecognised. Bowley’s experience suggests that the successful operation of the sexual norm has a certain fragility. Second, the extract also offers some evidence of the more explicit operation of the marital policy during Lord Hailsham’s time. Here the heterosexual requirement is made explicit and operates to formally prohibit sexual difference on the bench. It is important to bear in mind a couple of further points. The interview referred to here took place some 20 years after intimacy between adult men in private was decriminalised in England and Wales, creating the possibility of a certain intimacy between men in private, at least in that jurisdiction. Yet the spectre of criminality, this time in the form of ‘blackmail’, still lingers over same-sex intimacy and is put to work to sustain the privileges and moral high ground associated with heterosexuality. A final insight offered by this extract is to be found in relation to Bowley’s reference to ‘divorce’. Here is a reference to another dimension of the fragile nature of the category of ‘marriage’ and thereby the category of heterosexuality. Divorce is one context in which the privilege, the moral claims associated with heterosexual intimacy, is challenged and the possibility of other hetero-intimacies (which have in the past been condemned as morally dubious) is revealed. The historical exclusion of the ‘guilty’ divorce party from consideration as a judicial appointee offers an example of forms of heterosexual intimacy that have to be devalued and erased in order to create and sustain the image of heterosexuality as uniform, essentially coherent, and ideal.

55 Bowley was ‘outed’ by The Sun newspaper in 1988. Interview with Martin Bowley, 13 April 2006 on file with author.

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How might the removal of prohibitions on the appointment of those who have different relations of intimacy work to produce a more sexually diverse judiciary? One interviewee, a senior barrister, pointed to the potential contribution that legal recognition of same-sex marriage, or in the case of the UK, civil partnerships, might make. He explained: …we had the first [High Court judge] announcing his civil partnership in The Times a few weeks ago.[56] If you had told me that that was going to happen 20 years ago I’d have thought you were barking mad. And there it was. It was tremendous. But that is what civil partnership has done… it has suddenly given us all a sort of comfort zone, that’s really being straight, that is the married bit. In terms of ‘don’t frighten the horses’ behaviour putting a civil partnership in The Times is OK. Fine.

On the one hand, this interviewee suggests, the new institution of civil partnership may be something of a radical departure, broadening the parameters of intimate relations that are given state recognition and approval. Within the judicial context this may effectively work to facilitate the sexual diversification of the judiciary. He goes on to explain that civil partnership may work to facilitate such a change by way of its close proximity to the institution of (heterosexuality) intimacy that has long occupied the moral high ground, ‘marriage’. If the expansion of state recognition to patterns of same-sex intimacy has the effect of facilitating the greater sexual diversity of the judiciary, does it also impose new limits? What impact, if any, does it have on the recognition of other patterns of intimate relations? The same senior barrister offered the following comment on the point: I think the same issues would arise if a straight judge were going to a straight sauna providing sex, as a gay judge going to a gay sauna. I don’t think that there is any difference there. I think they are both in big trouble actually because of the reputational issues. The interesting issue is one that we have only recently started to talk about in my world. It is whether you should in some way be allowed to discriminate in favour of the gay, acknowledging that their lifestyle is in general terms potentially slightly different …. There is a slight assumption that a different [lifestyle] package comes with someone who is gay. Clearly it is not usually a settled life with 2.4 children. In an awful lot of cases … gay men are in a reasonably long-term settled relationship. But there are an awful lot that aren’t …. If the data shows that a comparatively high number of gay men are not in long term monogamous relationships then some of the gay lifestyles that inevitably stray from that are, you might say, naturally part of being a gay man. Therefore how does the system, the establishment, deal with that? Once you get into those areas you start to push quite hard at the Daily Mail territory.[57] I am actually clear that the powers that be these days would be absolutely clear in defending a judge against a charge just of his sexuality. What I am less clear about is how far people 56 Terrence Etherton, appointed as a judge of the High Court in 2001 and assigned to the Chancery Division, announced his civil partnership in The Times (8 February 2006). He is currently Chairman of the Law Commission for England and Wales. 57 The Daily Mail is a reactionary conservative UK newspaper that presents itself as the voice of the moral majority. Many commentators have suggested that it has been an important force driving government policy producing timidity in several aspects of government policy.

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would be comfortable in defending a gay judge who didn’t have any family commitments who was having consensual sex behind a closed door in a sauna, but who happened to have made the mistake of choosing a Daily Mail journalist.[58]

The opening comments return us to the point that neither ‘heterosexual’ nor now ‘gay’ is reducible to the pattern of respectable intimacy that is privileged under the title of ‘marriage’ or ‘civil partnership’. In order to sustain the illusion of perfection and ideal associated with these privileged categories of intimacy, much work has to be done to exclude other possible relations of intimacy from the realms of morally privileged intimate relations. The ‘sauna’ works to expose the provisional nature and to reveal the tentative coherence and uniformity of the legitimated relations of intimacy. Having made that point the interviewee introduces a new important point. He makes the suggestion that different sexualities may have different patterns of intimacy, which are equally capable of moral worth: being caring, nurturing, respectful acts and relationships. To impose the same conditions of intimacy upon different sexualities may have the effect of producing disproportionate exclusion and indirect discrimination. This interviewee suggests that official responses to this state of affairs are likely to be driven more by the poetics and perceived expectations of the yellow press, its journalists and their popular audience than by the dictates of equality of opportunity or the civil and human rights objectives of recognition of difference, diversity and equality.

4.

(In)visibility

Todd Brower, in his analysis of the four existing studies of sexual orientation bias in courtroom settings, highlights the importance of invisibility and visibility in the experiences and perceptions of bias: Once sexual orientation becomes visible, it significantly affects the experiences of both lesbian and gay court users and court employees….the judicial system is sometimes hostile …59

Most lesbians and gay men, he suggests, are not visibly identifiable either in courtroom settings or more generally. He continues, ‘Accordingly, the revelation of minority sexual identity usually occurs through speech or communicative conduct in order to affirmatively break the assumption of heterosexuality that silence often brings.’60 While invisibility is not a phenomenon that is exclusive to ‘sexual minorities’, since it can for example also have significance in the context of disability and faith, it is, Brower concluded, ‘particularly significant’ in relation to sexual diversity. Non-heterosexual identity, which Brower describes as ‘minority sexual identity’ in general, involves ongoing conduct dedicated to negotiating and managing the boundary between invisibility and visibility. Crossing the boundary from invisibility to visibility, he suggests, may be a fraught 58 Under the reforms introduced in the Sexual Offences Act 2003 sex between men in this context would not be a sexual offence. 59 Brower, Multistable Figures, above n15 at 2 60 Id at 5.

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and dangerous activity. In this section I want to use the interview data from lesbians and gay men who are members of the judiciary to pursue two objectives. First, I want to explore how these men and women experience and manage their sexual invisibility and their sexual visibility. Second, I want to identify some of the factors that appear to influence and inform the generation of the boundary between visibility and invisibility in this context. Justice Edwin Cameron, in his memoirs, raises the issue of the ‘invisibility’ of gay men on the bench in the following passage: If the radiologist was thinking media stereotypes, of course I didn’t ‘look’ like someone with AIDS. I was not emaciated nor entubed. I was fresh from a long working day in court — still in a suit. My medical insurance details at the reception must have revealed my judicial status. And judges don’t get AIDS. (Nor are they gay).61

These thoughts are offered in the context of a radiographer’s reported disbelief that the x-rays taken of Cameron revealed an AIDS-related illness. The invisibility reported here is twofold, once in relation to his health status, and once in the context of sexuality. The assumption of heterosexuality makes gay men (and one could add lesbians) invisible on the bench. In my interview with Justice Cameron he offered the following example of his experiences of the boundary between invisibility and visibility. The incident he described occurred during the course of his visit to London in July 2006. He participated in a meeting about judicial diversity with three members of the English Court of Appeal. At the end of the meeting, the presiding judge, who was very courteous said to me as we were going to lunch, ‘Is your wife here with you?’ It was so funny because as I said coming out is a never-ending process. I had that trillionth of a second, not even half a second, of hesitation about, how do you deal with this? Do you say, ‘no my wife isn’t with me’ or ‘I’m not married?’ I said to him and I have to admit it wasn’t easy, I said to him, ‘I’m a gay man and I don’t have a spouse and I don’t have a wife with me.’ It was quite interesting and of course they responded very cordially and in a very friendly way …. It’s more an interesting observation on the continual process of coming out. That one still, 24 years after coming out and 12 years after being appointed as an openly gay man in South Africa and a year and a quarter after publishing a book, one still has coming out moments.

The question ‘is your wife here with you?’ is an example of both the assumption of heterosexuality and an instance of its visibility which in turn demonstrates the invisibility of other sexual possibilities. The (ongoing) requirement for Justice Cameron to use speech and conduct to ‘affirmatively break the assumption’ of heterosexuality occurs despite over 20 years of speech and conduct dedicated to breaking the heterosexual assumption, be it as an ‘out’ gay man, as an activist and a scholar with an extensive body of writings relating to lesbian and gay human rights and HIV/AIDS, including the publication of his memoirs in 2005,62 and 61 Cameron, above n25 at 19.

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since 1995 as a prominent judge on the bench of South Africa’s Supreme Court of Appeal. This instance of the enduring operation of the forceful assumption of heterosexuality takes place in an informal judicial setting in a particular national and jurisdictional context. When I asked him how he dealt with ‘invisibility’ more generally in judicial settings he explained his approach in the following comment: The way I deal with it is to be very obtrusive about being gay. I take male partners to judicial functions, although it was frowned upon initially and difficult. I make a point of doing that. I make a point of talking a lot amongst judges about being gay. I deliberately obtrude the fact of my gayness …. I have found that people would ignore it if one didn’t, if one weren’t quite so obtrusive about it, because it is an inconvenient or an uncomfortable issue.

Justice Kirby described his approach to breaking the assumption of heterosexuality in the context of his extensive extra-judicial writings and public speaking engagements in the following observations. He explained, ‘… I think it is important…for me to confront those who have a stereotyped image of the judiciary, not in an aggressive or in an irrelevant way.’ He went on to illustrate his approach: You may have noticed in the lecture last night and if you were in the Scarman lecture, I always work in the issue of sexuality, even if it’s just as a tiny minor theme. It’s like a great Mahler symphony. There is always that moment where the woodwinds play that issue. I do that so that people who are sitting there will look at me and maybe they hadn’t thought about that or didn’t know about it. But thereafter they will have to hate me, if they hate gay people. Or they will have to accommodate in their mind that this is a gay person who is not ashamed of being a gay person and regards it as irrational and unscientific to have attitudes of animosity. So it is partly a teaching function. This is one advantage of the position I am in following the step I took in 1999.63

He explained that the lecture: … gave an opportunity for me to make that point, so the Lord Chief Justice of England and all of their Lordships and Ladyships sitting there were required to confront the issue in a friendly way but none the less a factual way, not so that there wouldn’t be gossip. There probably would be gossip but it would be gossip that I have initiated on my terms. And I think that is good for them.

62 See Edwin Cameron, ‘Sexual Orientation and the Law’ (1992) 3 S African HR Yr Bk 87; Edwin Cameron, ‘“Ubuntu” and Sexual Orientation’, paper presented from a public lecture of the Human Rights Awareness Week, Windhoek Nambia, 2001; Edwin Cameron, ‘Constitutional Protection of Sexual Orientation and African Conceptions of Humanity’ (2001) 118 S African LJ 642-650; Edwin Cameron & Mark Gevisser, Defiant Desire (1995). 63 During his visit to London in February 2006 Justice Kirby participated in a number of speaking engagements. The first lecture referred to in this extract is the Dame Ann Ebsworth Memorial Lecture, ‘Appellate Advocacy – New Challenges’ at Inner Temple, 21 February 2006; the second is a lecture to the Law Commission of England and Wales entitled ‘Law Reform and Human Rights – Scarman’s great legacy’ at Gray’s Inn, 20 February 2006.

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Justice Kirby’s reference to relevance is particularly important as it suggests that the management of the boundary between visibility and invisibility and the movement from invisibility to visibility may have certain limits. What factors might facilitate and motivate such a movement and what might inform their limit? The interview with Justice Kirby offers numerous examples of factors that might have informed his decisions to become visible. In the specific context of his decision in 1999 to announce his relationship with a man in the pages of the Australian edition of Who’s Who he identified three factors that influenced the event. The first was his professional position and more specifically his elevation in 1996 to the most senior court in Australia, the High Court of Australia. He explained, ‘It is a question, sadly, as to whether, had I been open about my sexuality before 1996, I would have been appointed.’ A second factor was the impact of the Royal Commission in New South Wales into the police service, which in the mid to the late 1990s generated hysteria in Australia about gay men on the bench.64 The Royal Commission investigated alleged links between ‘gay judges’, ‘rent boys’ and ‘paedophilia’. Justice Kirby explained: So it was a very extreme and horrible time, aided and abetted by some elements in the media and by some very conservative elements on both sides of politics. So that in discussion with my partner we thought that in such a circumstance it was much better to be up front so that I wasn’t going to suddenly be denounced in the Parliament. It would also reveal what everyone knew already anyway. That is the second reason.65

The third factor might be described as a combination of social justice and sexual politics. Justice Kirby explained that Johan, his partner of 37 years, ‘said that we owed it to the next generation to do something that would make their journey a little easier than ours had sometimes been.’ The reference to ‘Johan’, I’d suggest, points to a fourth factor, the particular relations of intimacy Justice Kirby inhabits. In the light of my earlier analysis of the way particular relations of intimacy might be either an explicit or implicit factor in the disclosure or non-disclosure of sexuality in a judicial setting it is important to note that Justice Kirby’s ‘coming out’ in Who’s Who takes place in the context of an announcement of his long term domestic partnership with Johan. As an enduring, stable and loving relationship, this has some of the key characteristics associated with those intimate relations that have long been privileged in and through heterosexuality as the basic idiom of personal and social respectability within the judiciary and elsewhere. Domestic respectability may be an important social and cultural value enabling an individual to redraw the boundary between invisibility and visibility. The interview data also 64 In December 1994, the Royal Commission into the New South Wales police service (the Wood Commission) extended its investigations into the existence and extent of corruption in the police service into a new area, the sexual behaviour of members of the judiciary in New South Wales. This investigation arose in relation to allegations of police protection of paedophiles. 65 In 2001 Senator Heffernan made allegations against Justice Kirby in the Federal Parliament in Australia, which arose in the context of a complaint about his supposed misuse of official cars. The allegations were shown to be groundless. See Enid Campbell & Michael Groves, ‘Attacks on Judges under Parliamentary Privilege: A Sorry Australian Episode’ [2002] Public Law 626.

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suggests another significant factor. It appears in the context of a reflection about the unwillingness of other gay people in different prominent positions who have partners, long-term partners, to disclose their relationship in their entry in Who’s Who. Job security, which Justice Kirby described in terms of his own constitutionally protected position, is another important factor. It is also important to note the institutional and social settings in which these instances of visibility take place. Some occur in what might be described as informal judicial settings, such as business meetings and judicial social events. Another context is in extra-judicial settings. Sometimes those settings might be the wider legal community, such as a lecture to members of the profession including judges, sometimes they might be more popular locations. Who’s Who is a publication that falls within the wider parameters of the mass media. All are out of the courtroom. So what about visibility in relation to the official role of the judge and in the courtroom? An interview with Justice Adrian Fulford, a judge appointed to the High Court of England and Wales in 2002 sitting as a judge in the Criminal division,66 offers data on experiences and perceptions of invisibility/visibility in the context of judicial office and in relation to the judicial role. Justice Fulford explained his understanding of the relationship between sexual orientation and the role of the judge in the following comment: ‘I don’t think that the fact that I am a gay man has very much, if anything, to do with the way I perform my job as a judge. It is almost entirely irrelevant.’ Justice Fulford’s comments about the irrelevance of sexual orientation need to be put into the context of his pre-judicial career. Called to the bar in 1978, he was one of the first ‘out’ gay men working as a barrister in the UK. He explained his decision to break the assumption of heterosexuality in the following terms: I made a decision early on in my career that I was always going to be honest and up front about this. Not preaching from the rooftops in a proselytising sort of way but simply being honest and making sure that people knew.’

In turn, early in his legal career, as a result of his perception that there was a lack of interest in defending men who were charged with criminal offences relating to sex between men, Fulford ‘made it known’ that he was interested in doing that kind of work. He explained: In terms of work, back in the late 70s early 80s there was, I felt at the time anyway, whether it was true or not, a lack of interest at the bar in the position of gay men and the relationship between gay men and the police and in relation to the quite often used charges of importuning and gross indecency in a public place. So certainly for a period I made it known that I was interested in doing that kind of work. I was a young junior member of the bar and I’m glad that I did.

66 In 2003, supported by the UK Government, he was elected to be a judge of the International Criminal Court in the Hague.

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A desire to change attitudes, promote social justice, generate an income and develop a career, appear here to have been factors influencing this decision to be ‘out’. He described a key characteristic of this phase of his career, as working in ‘… a partisan way’. How does his portrait of the judge differ from this portrait of the lawyer as advocate? Fulford described the differences in the context of a reflection about factors that had made him interested in pursuing a judicial career: Having spent years in a partisan way really arguing points of law and arguing cases I was really attracted to the process of trying to find the right answer and resolving problems rather than simply, and to an extent opportunistically, developing arguments to suit a particular party that I was representing. That process of resolving things, and in particular writing judgments and summing up, I have found hugely enjoyable, very stimulating and a really worthwhile exercise.

Of particular interest here is the dramatic contrast between Justice Fulford’s characterisation of his practice at the bar, where there is a connection between sexual visibility, a partisan approach and the role of an advocate, and the judicial role, which is radically different; characterised by sexual invisibility, which is conjoined with the performance of a role that is ‘non-partisan’. The particular requirement to remove sexuality from the portrait of the judge is reinforced in a suggestion that sexuality is different from other strands of diversity: I can see, I think reasonably easily, that, particularly in days when women and members of ethnic minorities were underrepresented, judges from those groups can bring something to bear on their role as a judge by virtue of the fact that they are either a woman or from the ethnic minorities and so I think that there probably is a legitimate reason for that to have been stressed, for the lack of judges from those areas to be stressed. Whereas the lack of openly gay men and lesbians on the bench has not been stressed. I think that on reflection that probably does make good sense. I really don’t think that one’s own individual sexual orientation has very much if anything to do with what you do day-by-day making decisions in cases. It is pretty much irrelevant.

This seems to point to a rather rigid boundary between sexual invisibility and sexual visibility in the context of the judicial role. How might this be explained and understood? Justice Cameron offers an insight. In his memoirs he describes the ‘resplendent robes’ of judicial office, the bib, sash, waistband and flowing scarlet robes that English judges imported into South Africa in the early 19th century as ‘a full-body disguise’.67 Here the disguise worked to mask not his sexuality per se but his ill health. But does it have significance in relation to sexuality? We explored this during the course of my interview with him. Cameron explained his position on the function of court dress, and also the spatial arrangements of the court, in terms of the role of the judge: … the fact that you wear formal clothes and the fact that the bench sits on a raised tier above the advocates, the fact that you don’t speak to the advocates outside the courtroom during the hearing, all of those contribute to the functionality of the role-play. But it is a distinctive role-play. 67 Cameron, above n25 at 31.

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More specifically the dress and the staging are concerned with the performance of distance that is understood to be a key feature of impartiality. Distance, Justice Cameron suggested, is ‘… functional to the work that you do and have got to do. But before saying that it is necessary, which implies approval, I’d say it is unavoidable. It is both necessary and unavoidable.’ This suggests that in a courtroom setting the visibility of a judge’s sexuality may break the magic otherwise produced by the paraphernalia that stages distance. In the context of the social and cultural forces that make non-heterosexual sexualities invisible, the paraphernalia and staging of the judicial role as nonpartisan may make it easier for a lesbian or a gay man (as already invisible) to achieve that required performance. At the same time, this ‘necessary and unavoidable’ performance may make it more difficult for a lesbian or gay man to ‘affirmatively break the assumption of heterosexuality that silence often brings.’68 Feminist scholars have noted the dangers women on the bench face when they attempt to break gender assumptions. In some instances invisibility may either not be an option or be more difficult to achieve. The visibility of a woman’s performance of gender, and the visibility of some ethnic minorities may make the visual performance of judicial impartiality even more challenging and more difficult for women and ethnic minorities on the bench.69 Nor are the challenges of gender, colour and ethnicity remote from sexuality. In some instances they may work to enhance the difficulties facing individuals, for example gender may impact differently on lesbians than gay men, or colour and ethnicity may generate 68 Cameron, above n25 at 5. Both Justice Fulford and Justice Cameron do offer some support for an argument that the sexual diversification of the judiciary will bring onto the bench individuals who might be able to offer different perspectives and insights. Putting Justice Fulford’s response back into the context of arguments about the importance of the different perspective that women and people from black and minority ethnic backgrounds might bring to the bench I asked Justice Fulford if a similar argument might not apply to lesbians and gay men. He responded: Of course coming from a minority and having grown up in days when there was a lot of discrimination that is something which I have been informed by and of course on occasion I am able to bring that personal experience to bear when I am dealing with a discrimination issue. I have a particular sensitivity or awareness about it. But I would also like to think that my colleagues who have been properly informed and trained as they have been would be able to bring to bear an appropriate view and judgement of that issue so as to inform what they eventually do in that case. Although it is right that it is good to have balance on the Bench in terms of ensuring that minorities are represented, I think it is dangerous to carry that argument too far. Without in any way wanting to blow my own trumpet what one has got to be looking for is good judges, rather than trying to select people because they just happen to fit a category that you are looking for because there is a lack of it on the bench at any given time. Of particular interest here is the interface between merit and diversity. While, he suggests, there may be an aspect of the gay (and one might add lesbian) experience that gives a person a different and heightened sensitivity and awareness that is of significance in carrying out the judicial function, he goes on to suggest that these are qualities and characteristics that distinguish a ‘good judge’. As such they are qualities that ought to be a part of the merit criteria and thereby applicable to all judicial appointees rather than qualities and characteristics associated with the representation of diversity on the bench. For an extended analysis of the interface between merit and diversity see Kate Malleson, ‘Rethinking the Merit Principle in Judicial Selection’ (2006) 33 Journal of Law and Society 126.

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more challenges for gay Muslims who wish to pursue a judicial career. The combination of these different hierarchies of difference may also facilitate visibility. For example, returning to Justice Satchwell, she explained that she had never had any problems being a lesbian on the bench. I suggested above that a number of factors were at work in the generation of this experience, including ethnicity and race, social class, education and political beliefs. Finally, the adoption of invisibility may at best leave unquestioned and unproblematised the nature and meaning of ‘distance’ and ‘impartiality’, and at worst may reproduce the hierarchy of social distinctions that has in the past made a group of white, middle aged, upper middle class, privately educated men the embodiment of ‘impartiality’.70 Does this mean that the sexuality of, for example Justice Kirby or Justice Cameron, never appears in the official setting of the court? The short answer, my research suggests, is no. It does appear. Justice Kirby provided the following example: … if you are open about your sexuality then it does make it easier to speak candidly about things including in the court. We had a case once where, oh yes, it was about in vitro fertilisation and whether that could be available to unmarried people. Some of the documents filed by a Catholic Church group, I think it was, opposing the interpretation of the Act that would give access to unmarried people, had the most amazing stories about gay people having sex with Alsatian dogs. I confronted the barrister with these statements because I’m pretty careful in my reading of the record. There was a great flurry and lots of apologies and withdrawal and offers to remove it from the record and so on. I told them that I wanted it to stay there. People know my position and they know when they are putting things to the court they have to be aware of that. That is a good thing. It has made people in the highest court of the land much more aware of this element, that there is a percentage of people in society who are or who happen to be homosexual or a member of a sexual minority. They have all just had to adjust to that. Whether that will survive my departure I don’t know.

Justice Cameron offered the following example: One of the very first murders I sat in was a very tragic murder of a gay man by two people who he had picked up off the street. It was very interesting, …everyone in the courtroom knew that I was a gay man, it was shortly after my appointment. The prosecutor and the defending counsel equally knew that I was a gay man and I think the investigating officer as well knew that I was a gay man.

In both examples the sexuality of both male judges appears to be visible. In these examples it is described as, not so much the result of an overt performance in the courtroom by these judges, but more as something that others in the court, the lawyers presenting the argument and fellow judges, might read into the proceedings due to performances of sexual visibility that have occurred elsewhere. 69 Hunter, Fear and Loathing, above n1; Omatsu, above n2; Boyle, Bhandar, Backhouse, MacCrimmon & Kobayashi, above n2; Rackley, above n3. 70 Omatsu, above n2.

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In 2004 Anna Marie de Vos, who was then a judge sitting on the bench of the South African High Court in Pretoria, appeared with her partner and their two children in a South African television documentary, Two Moms.71 Two Moms profiles Justice de Vos, her partner Suzanne du Toit and their two adopted children. The filming, which took place during the judicial recess, followed the family on a trip from Pretoria, where Justice de Vos worked, to the family’s organic farm in the south of the country near Plettenberg Bay on the Cape coast. The production crew spent four days shooting in Pretoria and Johannesburg, two days travelling down to the coast and a further four days at the family farm. The production company, Underdog, describes the film as ‘a revealing multifaceted portrait of an extraordinary, yet very normal family.’ The film’s director Luiz Debarros explained the aim of the film in the following terms, ‘…to focus on the human stories we found within the family, and not on the issues themselves, although these invariably came to the fore in a natural way’.72 The screening of the documentary, Justice de Vos explained to me, was something of a turning point in her relations with her fellow judges: After the screening of that programme I started to feel a slight negativity about the fact that I’m gay, …in fact one of my colleagues said to me, ‘You know it’s one thing to be gay but do you really have to push it down our throats.’ So you can be gay but you can’t say it and you can’t show it. But then you are fine. And since then I haven’t been a friend of the Judicial Services Commission or the powerful structures within the judiciary. And it’s not just a perception that comes from nowhere. It was clear to me that I…definitely overstepped a boundary, an unwritten rule that you can’t be public in that way, because you are a judge. Coming back to the British traditional idea that everything is secrecy. Can you image a TV programme about a judge’s life?

What is the nature of the boundary that has been crossed here? Justice de Vos describes it in part as an issue of visibility in contrast to invisibility, and her use of the term ‘public’ also suggests that it was represented as the violation of a boundary between the private and the public. Is this a breach, pure and simple, of an unspoken rule that prohibits the representation of family life or the intimate life of the judges in South Africa? There are at least three factors which might suggest that this is not the case. First, the judicial biographies on the website of the Constitutional Court of South Africa give details of the family lives of the judges of that court, present and past. Nothing in the descriptions of the programme suggests that the de Vos/ du Toit family strays far from the pattern of intimacy and domestic family relationships either of the judges of the Constitutional Court or with the heterosexual ideal more generally. Second, there have been other 71 Since its first broadcast in August 2004 on South African TV (SABC2), Two Moms has been screened at a number of festivals around the world. These include: The South African Gay & Lesbian Film Festival 2005; Frameline 29 2005 (San Francisco); Reel Pride/Triangle Foundation 2005 (Michigan); and is set to be screened at Pink Apple 2006 (Zurich, Switzerland) and the African Film Festival, Inc New York – 2006. 72 ‘About Two Mums’ in Two Mums (Official Website): (1 October 2006).

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instances where details of the intimate lives of people who are senior members of the South African judiciary have been made public with little or no hostile reaction. For example, Albie Sachs, who was appointed to South Africa’s Constitutional Court in 1994, published a memoir first in 1990 with a new edition in 2000. The memoir deals mainly with the attempt on his life in Mozambique on 7 April 1988, as a result of which his right arm and the sight in one eye were destroyed, and describes his journey back to good health. This journey works in part as a metaphor for the journey of South Africa from the struggle against apartheid to the challenges facing the establishment of the new post-apartheid democracy. There are several passages in the book where Sachs describes fantasies of intimacy. Early in the book we find the following description of an experience and reflection focusing on his sexual body at the beginning of his journey to recovery: My arm is free and mobile and ready to respond to my will. It is on the left side and I decide to alter the order a little …. Testicles …. My hand goes down. I am wearing nothing under the sheet, it is easy to feel my body. My penis is all there, my good old cock (I’m alone with myself and can say the word) that has involved me in so much happiness and so much despair and will no doubt lead me up hill and down dale in the future as well, and my balls, one, two, both in place, perhaps I should call them testes since I am in hospital.73

Justice Cameron, in the published memoirs about his HIV status, activism and his life as a gay man, countering the anti-semitic denialism that suggests that gay men with AIDS succumbed to errors of ‘lifestyle choice’, shares the following with his readers: I didn’t party or take drugs or have multiple exposure to the seminal deposits of innumerable sexual partners. I led the generally cautious life of a hard-working lawyer. Yet I fell ill from AIDS. I fell ill from a single virus. It was transmitted to me in a single, incautious episode of unprotected receptive sexual intercourse during Easter 1985.74

During the course of my interview with him he described the judicial reaction to the book in the following terms: … when a couple of my colleagues read the manuscript they expressed discomfort about the measure of self disclosure but once the book was published, given the very emphatically positive public response it received, I’ve had no reservations expressed. A number of people have gone out of their way to be positive. Many, many colleagues in provincial divisions over a whole range, I haven’t actually collated the response but your question makes me think I should have done, they cover a whole range, have been positive. I actually address the issue in the book of the propriety of what I am doing …. I had a book launch in Bloemfontein … in May last year, in 2005, a month after the book was launched in Johannesburg and Cape Town. Every single one of my colleagues came to Bloomfontein. It was just a silent, emphatic, universal turnout. Judges from the 73 Albie Sachs, The Soft Vengeance of a Freedom Fighter (2000). 74 Cameron, above n25 at 121.

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provincial divisions came, both black and white. That to some extent is a reflection of how seriously judges take the problem of AIDS but I think it is also a reflection of the fact that they knew that I was aware of the problem that I was creating. I’d advanced a justification for it.

In part, he suggests that the positive reaction was due to the cultural, political and moral context in which the disclosures were made. He explained, ‘I think that people see the argument that there was a moral emergency, which justified my stepping out of the judicial role.’ Second, he identifies the HIV/AIDS pandemic as the political and discursive frame that made putting his private life in the public frame acceptable to his colleagues. In that context the explicit reference to his intimate relations appears to attract little hostile judicial attention. In sharp contrast is the reported reaction to Justice de Vos. The documentary of her family life does have an important cultural, moral and political setting; the recognition of different family forms and relationships, the human rights of children and the constitutional provisions outlawing discrimination based on sexual orientation. Perhaps the moral urgency is less extreme if not only because by the time the documentary was screened the South African Constitutional Court had found in favour of de Vos and her partner. But it remains the case that in this instance this portrait of family life was, at least for some of her fellow judges, read as unacceptable and more specifically as nothing more than a portrait of her sexuality, of her ‘gay’ sexuality.75 Before trying to make sense of the reaction to the screening of Two Moms let me refer to another incident involving Justice de Vos. In 2005 during the course of her public interview before the Judicial Services Commission, for promotion to the post of deputy judge president of the Transvaal Provincial circuit, one of the commission members, a fellow lawyer, advocate Silas Nkanunu asked Justice de Vos about the impact of her sexual orientation upon her relations with her fellow judges.76 While many of the media reports were supportive of Justice de Vos, she explained: … it wasn’t nice for me. I was driving down the road and saw a big poster ‘Lesbian Judge Grilled’. It wasn’t nice to see that. I had to walk into our tearoom. I felt exposed and humiliated.

Commenting on his own experiences of Judicial Service Commission interviews, Justice Cameron explained: I was appointed in 1994, at the end of 1994, and since then I was interviewed for the Labour Appeal Court twice, for the Constitutional Court and for the Supreme 75 There may also be other factors at play here. Justice Cameron suggested that the hostility from fellow judges might be concerned with Justice de Vos being involved in the litigation to challenge the constitutional validity of the adoption laws. The boundary is here one between sitting on the bench as a judge and coming before the bench as a litigant. 76 Sheena Adams, ‘Judge Grilled on Her Sexual Orientation’ Cape Times (South Africa) (19 Oct 2005): (3 Nov 2005); Carmel Rickards, ‘Judging Women Harshly’ Sunday Times (South Africa) (23 Oct 2005): (3 Nov 2005).

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Court of Appeals so I’ve been to four or five interviews and not once has the issue of my sexual orientation even glimmered through. At my very first interview, which is on the website, it did arise but after that not once at all has the issue even been raised.

How are we to make sense of Justice de Vos’s experiences? There is some evidence here of a common denominator between the various judges who have made the ‘private’, ‘public’; all the disclosures referred to above are framed by reference to important political and moral causes and objectives informing the uses of publicity/visibility and an awareness of the dangers that might flow from the loss of privacy. However, at the same time I would suggest that these examples offer some evidence in support of a conclusion that gay men and lesbian women are differently positioned both with respect to privacy and publicity and in relation to invisibility and visibility. There is some evidence here of the gendered character of these boundaries and their deployment. Men appear to be more able to exercise control over boundary formation and boundary maintenance. This draws our attention to the way the formation and management of the boundary between invisibility and visibility and between privacy and publicity is informed by a hierarchy of power.77 Finally I want to return to Justice Cameron’s experience with the three judges from the English Court of Appeal. For Justice Cameron the particular significance of that incident was that it illustrates the ongoing nature of the assumption of heterosexuality and thereby the ongoing requirement to assert sexual difference. I want to draw out another dimension. Most biographical accounts of Justice Michael Kirby make reference to 1999, the date when Kirby revealed his sexual identity in the pages of the Australian edition of Who’s Who. The repeated references to this date suggest that this moment was pivotal, marking a move from invisibility to visibility. In turn it suggests that 1999 marks the absolute start of what Justice Cameron’s example illustrates as the ongoing process of annunciation that will be required until the assumption of heterosexuality has been displaced. But Justice Kirby’s experience suggests that this is an overly simplistic, partial and a very limited picture of the operation of the boundary between invisibility and visibility. In response to my question, ‘Would you agree that [1999] was the first moment in your professional life that everybody knew that you were gay?’ he said, ‘Certainly not.’ He explained, prior to that date: It was commonly known that I was homosexual because I had a partner from the 11th of Feb 1969 and lived together with him in the suburbs of Sydney. We lived quite openly. We went shopping and did other things that ordinary people did. Australia is quite a small society, 20 million people, and concentrated in a few cities, therefore I think it was generally known that I was gay. But that was not asserted. Remember, in the early days, from 1969 till 1974, homosexual acts even 77 These insights draw heavily upon Nancy Fraser, ‘Sex, Lies and the Public Sphere: Some Reflections on the Confirmation of Clarence Thomas’ (1992) 18 Critical Inquiry 595. Fraser also explores how hierarchies of race and social class inform these boundaries.

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between consenting adults in private were still illegal. Mind you, they hadn’t for many years been prosecuted and it was something of a dead letter. They were used occasionally to harass people. But it wasn’t the subject of very many criminal prosecutions. But that was a reason for a certain degree of discretion. As well as that, I’m quite a discrete sort of a person. Most people who end up on the judiciary are. So, that was a period in my life and the life of my partner when we were not, as it were, in your face.

More specifically Kirby went on to explain that his sexual orientation was well known prior to 1999 within the legal community: Lawyers live in a very small cocoon. It’s a cocoon, which resonates constantly with gossip. They are great gossips. They love gossip. I’ve never really been so keen on gossip myself. I’ve often been the subject of it. There would have been plenty of gossip about me. When it appeared in Who’s Who and the journalists went around the legal profession to see ‘shock horror’ what everyone thought about this there was a great ‘yawn’. The legal profession responded with, ‘Well everyone has known about that. Move on.’

I want to highlight three matters. The first is that Justice Kirby’s experiences suggest that neither the division between invisibility and visibility nor between the public and the private work as either single or simple distinctions. I would suggest that there is some evidence in Justice Kirby’s experiences (and in other examples offered in this article) to suggest that there is a multiplicity of simultaneous different experiences of these boundaries in different locations. There are in short many different, simultaneously operating public spheres. These include official governmental public spheres, mass mediated mainstream public spheres, professional public spheres, counter-public and informal everyday public spheres. Justice Kirby’s relationship and thereby his sexuality may appear differently at the same time in these different publics; for example, visible in the everyday public sphere of his immediate domestic neighbourhood, invisible in the official government public sphere, visible within the public sphere of the legal professional community but invisible in the mass mediated public sphere. My second observation relates to Kirby’s comment about lawyers, gossip and the knowledge produced about his sexual orientation within the community of lawyers by way of gossip. Various anthropological studies have noted the importance of gossip in the formation of elite groups and several have identified lawyers and legal communities more generally as groups in which gossip plays a particularly important role in the process of group formation.78 Gossip, this research suggests, works to form communities and to set, represent and police the moral values of each particular community of gossipers. Furthermore it works to create community not only by way of separation and exclusion but also by way of 78 Max Gluckman, ‘Gossip and Scandal’ (1963) 4 Current Anthropology 307; John Flood, ‘Middlemen of the Law: An Ethnographic Inquiry into the English Legal Profession’ (1981) 6 Am Bar Foundation Res J 377.

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inclusion and incorporation. Nor is gossip merely a matter of community. Individuals use gossip for their own particular purposes to make their way in these communities.79 Kirby’s experience is of interest in various ways. Gossip, he suggests, worked to make his sexual orientation well known within the legal community. While it might have been used to exclude him and destroy his professional career it does not in the general scheme of things appear to have worked in that way. He has had a highly successful career and more specifically a highly successful judicial career. While his sexual identity would seem to have become visible in the mass mediated public sphere in 1999 by way of the Who’s Who entry, it was already visible, and had been for many years in a different public sphere, that of legal professionals. A key point here is the possibility that a person’s sexual orientation may be both widely known and yet remain largely invisible. Social, cultural and spatial factors produce multiple locations of differently drawn boundaries. Brower makes the point in his overview of the research on sexual orientation bias in the courtroom: This combination of diverse environments, different perceptions, and varying degrees of sexual orientation disclosure complicates analysis of sexual minorities’ experiences within the judicial system.80

I would suggest that Brower’s observation also captures something of the nature of the complexity of the experiences of lesbians and gay men who hold judicial office. My final point is that while it may be a trite point to say that there may be considerable distance between these different public realms, for example between the everyday public sphere of his immediate domestic neighbourhood and the official government public sphere, there is also considerable connection. I want to explore this by reference to a comment by Justice Kirby about his appointment to the High Court. He begins: It is a question, sadly, as to whether, had I been open about my sexuality before 1996, I would have been appointed. Not because I was any different or that my values were any different or that people didn’t really know, but there are people in public life who have a lot to do with the issues of appointment of the judiciary who get nervous about somebody who is bucking the system and is being open about their sexuality. It shouldn’t be so but I think it might have been so.

This observation begins with the suggestion that information about his sexual orientation, had it escaped from a context where it had a certain visibility, the legal professional public sphere, into the political arena, a different public sphere, then 79 One of the criticisms of anthropological work on gossip is that it has paid too much attention to the group and collective significance of gossip and paid too little attention to the significance and use of gossip by individuals. See Robert Paine, ‘What is Gossip About? An Alternative Hypothesis’ (1967) 2 Man 278. 80 Brower, Multistable Figures, above n15 at 3.

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this would have ended his chances of appointment. Does his appointment suggest that there was a clear separation between the public sphere of the legal professional community and the community of politicians who were involved in making the decision to appoint? He continued: …it might not have been so because I’ve been told by a person who worked in the office of the Prime Minister at the time, that the Prime Minister on my appointment said to this person who was himself gay and known by the Prime Minister to be gay, ‘Well, XXX, there’s one for you.’ XXX, in return replied to the Prime Minister, ‘Prime Minister, I’ve got news for you. There are lots of others.’ So it may not have influenced things. But it might have.

This suggests both some connection between these different publics and some movement of information across and between them. However, the response to the Prime Minister’s comment suggests that the connection and flow of information may be partial rather than total. Finally the example also suggests that individual actors may play a key role in the flow and mobilisation of gossip/knowledge across different public spheres. What social, political and moral factors influenced the formation and management of the boundaries of visibility and invisibility illustrated here? My answer will have to wait for another time and place.

5.

Conclusion

In an equalities context in which sexual orientation in general, and lesbian and gay sexualities in particular, appear to be a largely unspoken and unspeakable aspect of judicial diversity, one might be forgiven for believing that putting sexuality on the agenda is, if not a novel initiative, then a challenging development. I hope that this essay has provided some evidence that putting sexuality in the agenda is far from being a radical or shocking departure. One key insight arising out of the research and analysis offered here is that sexuality is not so much absent or rarely spoken, or predominantly missing from the judicial institution and the lives of the judiciary, but is always present and more specifically it is always in public. Silences and the formation and maintenance of boundaries of visibility and invisibility are central to its pervasive operation. Sexuality is already a part, and a very public part, of judicial institutions, judicial roles and judicial cultures. It may, however, still be the case that putting sexual diversity on the judicial agenda will be experienced by government officials, the judiciary themselves, fellow academics and researchers, and the public at large, as a vertiginous journey across a boundary that is fraught with danger. It is likely to remain a hotly contested and highly controversial issue. These responses are not so much a reaction to violating social taboos associated with the preservation of an institution or a culture that is free from sexuality, which effectively confines and preserves sexuality to places beyond the public gaze, but are more a reaction that reveals the nature and operation of the existing public sexual culture we occupy, dedicated to the pursuit of a dream of a sexually homogenous social order. Research focusing

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on the experiences of gay men and lesbians provides a unique opportunity not only to analyse particular identities, but to examine and critically explore the whole of that public sex culture. The different sources of data I have re-used and introduced here are designed to open up informed debate and enable critical reflection about the nature and challenges of sexual diversity and the judiciary. The restraints of this particular essay mean that there is not the opportunity to do justice to the full richness of either the data presented here or other existing data. Much more research generating new data and a more sustained analysis of new and existing data is necessary. I hope that this article will be a useful platform for further research and that it will raise awareness that future research projects in this area must not only be acutely aware of the complexities of sexual identity and the idiosyncrasies and peculiarities of each jurisdictional and institutional setting, but also must be sensitive to the multiplicity of different contexts in which the culture of sexuality is put to work.

Ethnic and Racial Studies Vol. 28 No. 4 July 2005 pp. 620 638 /

Institutional racism and civil justice Aoife O’Grady, Nigel Balmer, Bob Carter, Pascoe Pleasence, Alexy Buck and Hazel Genn

Abstract This article investigates the utility of the term ‘institutional racism’, using a study of the experiences of Black and Minority Ethnic [BME] people within the civil justice ‘system’ in England and Wales. The study is based on the results of the Legal Services Research Centre’s Periodic Survey of Justiciable Problems, detailing 5,611 respondents’ experiences of civil justice problems over a four-year period. The article concludes that although disparity of experience between white and BME people does exist in the civil justice system, it is not clear whether, or to what extent, this is the result of racism. It also suggests that a notion of ‘institutional racism’ is unhelpful in interpreting these results and gives rise to difficulties in identifying relevant sources of social agency. The article argues for an alternative concept of ‘institutionalized’ racism, applied only when evidence is found of the existence of racist beliefs or practices, as opposed to disparity of experience/outcome.

Keywords: Institutional racism; civil justice; justiciable problems.

Introduction: ‘Institutional racism’ in Social Science ‘Institutional racism’ as a descriptive term has had a relatively long existence within social and political analyses. First used by Carmichael and Hamilton in their 1967 analysis of black communities’ situations in the United States, it was later adopted within UK political and sociological discourse (see, for example, Sivanandan 1982). However, charges of ‘institutional racism’ in the criminal justice system were rejected in the 1981 Scarman report into the Brixton ‘race’ riots and not officially recognized as valid until the report of the Macpherson Inquiry into the Stephen Lawrence case (1999). Notwithstanding the more political debates about the existence or otherwise of ‘institutional racism’ in British society and, specifically, the criminal justice system, there has been relatively little theoretical reflection on, and corresponding analysis into, the characteristics of

# 2005 Taylor & Francis Group Ltd ISSN 0141-9870 print/1466-4356 online DOI: 10.1080/01419870500092514

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‘institutional racism’. Miles (1989) comments that the concept was introduced to the UK and used ‘with little analytical rigour’ (p.53). Williams, noting the similarities between British and US applications, comments that there is in both the same emphasis on consequences, rather than intentional racism, upon more than occasional discrimination, on extending racism beyond ideal constructs to practices and structures and finally, there is uncertainty as to whether a doctrine of racism is evident, masked or absent (Williams 1985; p. 329, see also Mason 1982; Solomos 1983). As Miles (1989) later argued, an exclusionary outcome does not necessarily imply that racism, as an ideology, has been an influential factor in that exclusion. ‘Institutional racism’ as a concept that looks only at consequences, actions, practices, without looking for the presence of racism as an influential ideology is surely problematic. A black working-class youth might be discriminated against on the basis of his class background as much as on the basis of his colour. However, following the emphasis that the advocates of ‘institutional racism’ generally place on consequences, class discrimination could here be re-categorized as racial discrimination. The emphasis on identifying an institution as racist by outcomes or consequences is apparent in the (1999) Macpherson definition of ‘institutional racism’ as: The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people. (Macpherson 1999: para 6.34) Due to this emphasis on evidence of differential outcomes, particularly in the Macpherson report which has had a remarkable influence on political and cultural discussions of ‘institutional racism’, such discussions have often been at a practical rather than a theoretical level. Empirical evidence (focusing on outcome) has often been cited as proof that the police force is ‘institutionally racist’ (see, for example, Fitzgerald 1990; Hood 1992; and Home Office 2000, 2001). However, as discussed above, a rigorous definition of the term ‘institutional racism’ has often been lacking. Taking the (official) Macpherson definition, for example, it becomes clear that there is no site, or locus, for racism. We are told how it can

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be detected through processes, attitudes or behaviour (presumably of agents of the institution), but we are not told where the racism exists where are the racist beliefs held that lead to the racist processes, attitudes or behaviour? One explanation is that they are held by the individual actors who then demonstrate the racist attitudes or behaviour to which Macpherson has alluded. This, however, is not entirely satisfactory, for two reasons. The first is that this approach merely brings us back to describing people within an institution as racist; the use of ‘institutional racism’ as a concept is an attempt to move beyond individual actors’ racisms within an institution to then reduce ‘institutional racism’ to the presence of racists within an institution would appear to render such an attempt pointless. Secondly, racist attitudes and behaviour can be held or expressed by individuals, but racist processes cannot. Processes are external to the individual; certainly, their construction and composition is always due to the actions of individuals, but processes can (and it will be argued, in this case, do) precede actors and agents who at a later stage, will work within and with them. Macpherson’s definition refers to racist attitudes, behaviour and processes: who or what has made them racist? Where is the racism within an institution? The Macpherson definition (and others that preceded it) make such questions unnecessary. Certainly, the Macpherson report was at pains to point out that ‘institutional racism’ did not imply that every police officer in the Metropolitan force was racist. So how does one account for racism within an institution? If racism is a belief, who holds it on behalf of the institution? Or, to put it another way, how can an institution be racist, as it is not capable of action (or thought/ belief) in the way that people are? These questions have been explored in studies of police culture by Holdaway (1997, 1999); see also Waddington 1999). In his account, police culture is an emergent product of the mundane tasks of everyday policing and an institutional and political context in which race ideas flourish. Such ideas permeate routine police action, at both the level of face to face ‘situated activity’ and the level of senior institutional decision-making. Policing thus sustains and reproduces ‘particular, racialised relations’ (Holdaway 1999:1.4). In demonstrating how, in the routine tasks of policing, particular ways of understanding social relations are sustained and reproduced, Holdaway’s work is exceptional. It is significant because not only does it fix social processes in what people do, in their ordinary social routines and accomplishments, but also because it allows for a keener sense of who is doing what to whom. However, while this research provides a plausible account of how racism and race ideas become institutionalized through routines of social action, we would contend that it is not an account of ‘institutional racism’, a term which in our /

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view is incompatible with Holdaway’s interactionist perspective. This is because the term ‘institutional racism’ misattributes agency. In the analysis that follows we seek to support this claim by examining the experiences of BME people within the civil justice system in order to assess whether they may be appropriately interpreted as an instance of ‘institutional racism’. Institutionalised racism in civil justice? One of the areas of public policy that is most frequently charged with being ‘institutionally racist’ is the criminal justice system. Despite the growing body of research in this field, as of yet, practically no major work has been conducted on the experience of BME groups in the civil justice system in England and Wales, or for that matter, elsewhere. Most of the research currently available (see, for example, LaFree and Rack’s (1996) investigation on tribunal outcomes in New Mexico) is narrow in scope, and has only addressed a small area of the civil justice system. While in Britain at least, steps have recently been taken to close the gap of knowledge relating to the experience of BME groups in the civil justice system,1 our knowledge of how this population fares in the civil justice system is limited. Do BME people within the civil justice system have different experiences from white people? If so, is this due to institutionalized racism, or are there other explanations? Analysing findings from the Legal Services Research Centre’s Periodic Survey of Justiciable2 Problems, we will seek to provide some answers to these questions. We will also use our analysis of the findings to demonstrate the problems inherent in applying the above definitions of institutional racism in social research. The LSRC periodic survey of justiciable problems In the late 1990s, the LSRC (the research centre of the Legal Services Commission [LSC]) was first asked to look at the topic of legal need in England and Wales. Its first report from this research programme, Local Legal Need, was published in 2000. Since then, the LSRC has worked on a periodic survey of justiciable problems, funded by the Department for Constitutional Affairs [DCA] and the LSC, based on Genn’s earlier (1999) research in Paths to Justice. The main purpose of the survey is to report on two of the DCA’s Public Service Agreement [PSA] targets. Another important purpose of the survey, though, is to develop and improve current knowledge on the experience of justiciable problems and the advice seeking behaviour that accompanies them. The first Periodic Survey of Justiciable Problems was conducted in the summer of 2001, and was a survey of 5,611 adults. Respondents to

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the survey first completed a ‘screening’ interview, the purpose of which was to establish whether they had experienced a justiciable problem in the previous three and a half years (the survey reference period). If they had experienced at least one justiciable problem, they then completed a ‘main’ interview, which selected one problem and explored the strategy used in dealing with it in greater detail. Interviews averaged fifty minutes for those who reported problems, and fifteen minutes for those who did not. All interviews were conducted using Computer Assisted Person Interviewing [CAPI] software in the respondents’ homes. For reasons of sample size and cost, no particular provision was made for interviewing in languages other than English. Detailed demographic information was taken for all respondents in the screening interview. Also, basic information on the nature of and strategy adopted to deal with, every problem identified was obtained. Although the survey was not designed specifically for an examination of ‘racial’/ethnic experiences in the civil justice system, the collation of demographic data, including ‘ethnicity’ categories, ensured that such an analysis was possible. Sealey and Carter (2001) have commented on the problematic application of such socio-categories within social research, noting that the ‘ethnic’ categories in general use are an amalgam of references to skin colour, nationality and culture, and that confusion often reigns as to what exactly is being measured. Indeed, any form of ‘ethnic’ categorization is likely to lead to these problems: ‘ethnicity’ is not a given social fact that can be simply registered, but instead can refer to a multitude of means of categorization, whether self-defined, or externally imposed. The ‘ethnic’ categorizations used in the LSRC survey were the Census 2001 categories. Notwithstanding the theoretical problems of using any ‘ethnic’ categorizations, this model is currently the most ‘fit for purpose’. Using the same categories as were used by the entire population of England and Wales in 2001 should at least guarantee that the majority of survey respondents were familiar with the categories, and in theory (at least) would have selected the same ethnic categorization as for the Census. This, then, also provides the benefit of enabling cross-comparison with socio-demographic characteristics from the Census (and other major surveys in Britain, which will also employ the same categorizations). Overall the breakdown by ethnicity was comparable to that of the 2001 Census percentages, as demonstrated in Table 1. Respondents to the survey were asked if they had experienced a ‘problem’ that was difficult to resolve of one of eighteen different types: discrimination; consumer problems; employment; neighbours; housing (owning); housing (renting); homelessness; money/debt;


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Table 1. Respondents to survey by ethnic group Ethnic Group

White

British Irish Other Mixed White and black Caribbean White and black African White and Asian Other Asian Indian or British Indian Pakistani or British Pakistani Bangladeshi or British Bangladeshi Other Asian or British Asian Black Caribbean or British Caribbean African or British African Other Black or Black British Other Chinese or British Chinese Other All

Number

Per Cent

Census per cent

4997 33 142 8 2 12 6 95 131 13 25 80 25 8 16 13 5609

86.99 1.27 2.66 .47 .16 .37 .31 2.09 1.44 .56 .48 1.14 .97 .19 .45 .44

89.1 0.6 2.5 0.1 0.0 0.2 0.1 1.7 2.3 0.2 0.4 1.4 0.4 0.1 0.3 0.2 100.0%

welfare benefits; divorce; post-relationship; domestic violence; children; personal injury; medical negligence; mental health; immigration and unfair police treatment. Using findings from the LSRC survey, we sought to establish: 1. 2.

Whether or not disparity of experience exists between BME and white populations in the civil justice system in England and Wales; If disparities are found to exist, can these be attributed to the presence of institutional racism?

Analysis First, we used binary logistic regression to examine differences in experience of each of the eighteen discrete problem categories for a range of demographic predictors (including ethnicity). Logistic regression estimates the probabilities (or more correctly the odds ratios) associated with each binary option and how these probabilities vary due to differences in the predictor variables (see Kleinbaun, 2002). These categorical predictors included gender, ethnicity, housing type, use of transport, family type, tenure, economic activity, longterm illness or disability, academic qualifications, receipt of benefits, age (linear and quadratic terms) and income (which was equivalized to control for dependent family members). Predictors were entered in each model as main effects only, and we used backward elimination

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(based on likelihood ratio) to assess the effect of removing ethnicity from each problem type model.3 Second, we examined differences in problem solving strategy between ethnic groups using a chi-squared test and inspection of accompanying standardized Pearson residuals. These residuals showed lack of independence in the particular cells, with lack of fit of the null hypothesis (independence) indicated by absolute residuals in excess of two or three (Agresti 2002). A similar approach using chi-squared tests and Pearson residuals was also used on additional questions, with exact or Monte Carlo tests used where counts in contingency tables were small (see Mehta and Patel 1996). Finally, Mann-Whitney U tests were used to examine differences in helpfulness and recommendation ratings of advisers. These are distribution free tests for two independent samples (white and BME), which assess whether the two samples differ in their ratings. To boost the number of BME respondents included, unless otherwise stated, in all analyses represented here data were not weighted for non-response or to correct for geographical stratification. Findings from the periodic survey of justiciable problems In all, 2,017 (36 per cent) respondents reported experiencing one or more justiciable problems in the survey reference period (excluding trivial problems as defined by Genn 1999). Binary logistic regression analyses for any problem and for each problem type showed a relatively similar pattern of problem incidence among the white and BME populations. The change in deviance as a result of removing the ethnicity predictor from each model is shown in Table 2. Where ethnicity was influential, we present odds ratios, which demonstrate how much more or less likely the experience of a given problem was a result of respondents being BME. Odds ratios of one represent no change, with 1.5 for example, showing that the problem type is one and a half times, or 50 per cent more likely, to be experienced by BME respondents. BME respondents were no more likely to experience any problem than white respondents, and the only three problem categories where significantly higher incidence was observed were discrimination and immigration. In addition, the generally similar pattern of problem incidence between the white and BME populations indicates that, in situations where different outcomes or strategies are apparent, these differences are not due simply to different incidence of problem type between ethnic groups. However, when the BME population was analysed in separate ‘ethnic’ categories, differences in incidence of other problem categories began to emerge. [For purposes of analysis, it was possible to make


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Table 2. Change in deviance as a result of removing ethnicity from each of nineteen binary logistic regression analyses Problem type

Change in deviance ( /2*log likelihood)

DF P

Odds ratio

Any problem Discrimination Consumer Employment Neighbours Housing (owning) Housing (renting) Homelessness Money/debt Welfare benefits Divorce Post relationship Domestic violence Children Personal injury Medical negligence Mental health Immigration Unfair police treatment

0.052 23.3 0.004 0.001 1.13 0.10 0.38 0.21 0.55 0.14 5.43 3.23 0.71 0.015 0.16 0.36 0.59 17.28 1.09

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

/ 4.42 / / / / / / / / 0.40 / / / / / / 13.89 /

0.82 B/0.001 0.95 0.97 0.30 0.76 0.55 0.64 0.47 0.71 0.037 0.096 0.42 0.90 0.68 0.54 0.44 B/0.001 0.34

P-values less than 0.05 indicated that ethnicity was a significant predictor of incidence for that problem type. In such cases, we have added odds ratios (which are centred around 1) demonstrating that black and minority ethnic respondents were far more likely to experience discrimination and immigration problems and significantly less likely to experience divorce. Problem types are listed in their order of presentation in the survey.

only one further refinement: BME respondents were now divided into two groups black and Asian (due to low numbers of respondents, ‘mixed’ and ‘other’ categories were removed).] In the majority of cases, incidence still remained more or less similar across all three groups, though there were some additional exceptions to this general rule, which are summarized in Table 3. None of the three groups was significantly more likely to experience consumer, employment, housing, homelessness, money/debt, welfare benefits, divorce,4 medical negligence, mental health problems, or problems of unfair treatment by the police. However, as can be seen in Table 3, discrimination problems, for example, emerge as particularly an Asian issue (only two black respondents reported discrimination problems, which equates to roughly 2 per cent of all black respondents similar to the proportion of white respondents reporting discrimination problems). Black respondents were the most likely to have reported children problems (children problems relate to issues such as school exclusion, not custody matters), with Asian respondents /

/

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Table 3. Likelihood of Asian and Black respondents reporting problems when compared to white respondents (reference category) B Discrimination Children Immigration Post relationship

White Asian Black White Asian Black White Asian Black White Asian Black

1.92 .21 /.31 .85 .33 4.37 /2.03 .01

S.E. Wald

df p

32.66 .34 32.63 .75 .078 3.64 .50 .39 .48 3.11 29.03 1.20 .076 .82 28.40 3.90 1.03 3.90 .53 .000

2 1 1 2 1 1 2 1 1 2 1 1

B/.001 B/.001 .78 .16 .54 .08 B/.001 .78 B/.001 .14 .048 .98

Odds ratio

6.835 1.231 .733 2.327 1.391 79.171 .131 1.011

Odds ratios are again measured from 1 (no change), and express how much more or less likely Black or Asian respondents are to experience problems. Output is only included for problem types where ethnicity (split into three groups in this instance) had a significant influence upon experience.

being least likely, and white respondents coming between the two groups. Black respondents were also the most likely group to have experienced immigration problems. Asian respondents were least likely to report having experienced post-relationship problems. The analysis of problem incidence revealed, at first glance, basic differences in problem experience and reporting between the white and BME populations, with a more detailed pattern of difference emerging once the composition of the BME population is further disaggregated. Overall though, it is not evident that the BME population in England and Wales is more likely than the ‘white’ population to experience (or at least to report the experience of) justiciable problems. It can therefore be hypothesised that any difference of experience between overall BME and ‘white’ groups within the civil justice system is most likely not to be due to a difference in problems reported (type of problem is very influential on experience within the system. See Pleasence et al. 2004, for further discussion). Differences of behaviour: Problem-handling strategies Five basic problem-handling strategies were used in the questionnaire methodology. Respondents were disaggregated according to whether they: did nothing; handled the problem alone; sought advice; tried and failed to seek advice, then did nothing; or, tried and failed to seek advice, then handled alone. Broad problem solving strategies adopted by white, black and Asian respondents are presented in Table 4.


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Table 4. Broad problem solving strategy adopted by white, black and Asian respondents Ethnicity

Did nothing to resolve Handled alone Obtained advice Tried and failed Tried and failed & handled alone Total

Total

white

Asian

black

719 20.0% /.6 1029 28.6% .5 1572 43.7% .1 93 2.6% /.5 181 5.0% .0 3594 100.0%

52 32.1% 3.3 35 21.6% /1.6 62 38.3% /1.0 9 5.6% 2.2 4 2.5% /1.5 162 100.0%

19 18.4% /.5 24 23.3% /.9 48 46.6% .5 3 2.9% .1 9 8.7% 1.7 103 100.0%

790 20.5% 1088 28.2% 1682 43.6% 105 2.7% 194 5.0% 3859 100.0%

Each cell presents a count, column percentage and a standardised Pearson residual. Residuals larger than two or three indicate that the given cell is significantly different from what might be expected if ethnicity and strategy were independent of each other. The output is derived from a number of questions concerning respondents’ responses to their problems.

A simple chi-squared test highlighted significant differences in problem solving strategies adopted by the three groups, x28 26.15, p0.001. Pearson residuals, also presented in Table 4, suggest much of this significance can be attributed to Asian respondents’ comparatively greater tendency to take no action to resolve their problems. In contrast, there was little or no difference between the strategies adopted by black and white respondents. The high proportion of Asian respondents taking no action was not a consequence of difference in experience of problem types (inaction is far more likely in certain problem categories). In fact, the problems experienced by the Asian group were associated with a higher tendency to take action, and not less. /

/

(I) Taking no action /

Respondents who did nothing were asked to specify reasons for their inaction.5 Responses for white and BME respondents are presented in Table 5. The data indicate that a slightly higher proportion of BME than white respondents thought that nothing could be done to help them,

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Table 5. Reasons for inaction for White and Black and Minority Ethnic respondents, derived from the question, ‘‘Why did you/your partner do nothing?’’ Reason for Inaction

White BME

No dispute with anybody/thought other person was right

92 12.8 51 7.1 84 11.7 53 7.4 223 31.0 35 4.9 33 4.6 40 5.6 372 51.7

Other side was already taking action Did not think it was very important Thought it would damage relationship with other side Did not think anything could be done Thought it would take too much time Thought it would cost too much Was scared to do anything Other (SPECIFY AT NEXT QUESTION)

7 9.1 4 5.2 9 11.7 1 1.3 30 39.0 6 7.8 4 5.2 10 13.0 36 46.8

Note: respondents could make multiple responses, so column percentages exceed one hundred percent.

along with minor differences in tendency to suggest problems would take too long to resolve, or the degree to which they described themselves as too scared to do anything. Overall, a chi-squared test on counts from Table 5 suggested differences between white and BME respondents were non-significant (x28 13.74, Monte Carlo p0.085). However, if we partition the table (see Agresti, 2002) to examine each response against a combination of the remaining responses, there is some evidence of significant differences between white and BME respondents in frequency of being too scared to do anything (x21 6.14, p0.013). /

/

/

/

(II) Taking action to solve a problem /

As we have seen above, the ‘ethnic’ category of respondents was a determining factor in terms of strategy and had a definite influence on whether or not respondents did nothing. The analysis of those respondents who did seek advice also highlights differences between white and BME respondents in types of adviser utilized. Respondents were asked to name the first adviser they contacted with regard to their problem. A wide variety of adviser types was listed, but these have been categorized into eight different types: solicitor, Citizen’s Advice Bureau [CAB], other advice agency,


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trade union/professional body, employer, local council,6 police, insurance company, and other.7 The initial comparison between white and BME respondents showed some differences in choice of first adviser, x28 15.52, p0.05. as demonstrated (with Pearson residuals as described earlier for Table 5) in Table 6. A second analysis with the BME group sub-divided into black and Asian respondents suggested that a higher proportion of Asians contacted their local council as first adviser (26 per cent; 8 per cent black and 8 per cent white, x22 15.52, pB0.001, comparing local council against other adviser across the three groups), and a higher proportion of black respondents contacted an ‘other’ source of advice /

/

/

/

Table 6. First adviser for white and BME respondents. Derived from the questions ‘‘Did you/have you at any stage obtained advice or help from any of the people or organizations on this card about (the problem)?’’ and ‘‘Who did you first obtain advice or help from about (the problem)?’’ First adviser

White

BME

Total

CAB

162 20.6% .4 206 26.2% .4 70 8.9% /.1 62 7.9% .2 42 5.4% /.2 59 7.5% /.8 35 4.5% /.3 25 3.2% .2 124 15.8% /.3 785 100.0%

8 11.8% /1.5 12 17.6% /1.3 7 10.3% .3 4 5.9% /.5 5 7.4% .6 12 17.6% 2.7 5 7.4% 1.0 1 1.5% /.7 14 20.6% .9 68 100.0%

170 19.9%

Solicitor Other advice agency TU/professional body Employer Local council Police Insurance company Other

218 25.6% 77 9.0% 66 7.7% 47 5.5% 71 8.3% 40 4.7% 26 3.0% 138 16.2% 853 100.0%

Each cell presents a count, column percentage and a standardised Pearson residual.

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(27 per cent; 10 per cent Asian and 16 per cent white, though in this case differences were non-significant, x22 3.26, pB0.19). In addition to getting information relating to first adviser contacted, the survey gathered information relating to the first three advisers contacted for each justiciable problem experienced. When the data for all advisers contacted are analysed, these differences between white and BME populations remain consistent. The differences between white and BME respondents in advisers contacted overall potentially indicates that the referral processes of first or early advice sources contacted by BME respondents were not adequate BME respondents, less likely to contact a solicitor or standard advice centre initially with their problems, tended not to be directed towards the net of standard legal and advice services. /

/

/

Differences of experience: What services did respondents receive? Regardless of advisers contacted, it would appear that BME respondents to the survey had an increased tendency to receive assistance and advice they found to be unsatisfactory. Respondents were first asked what areas had been discussed with the first person or organization contacted for the purposes of obtaining formal advice. The options provided were: your legal position; procedures/ what to do next; your financial position; another type of advice; or, none of these. The assumption made by the researchers is that if advice was reportedly received on ‘none of these’ issues, the respondents were then receiving advice (if any) that had little utility to them. There were significant differences between white and BME respondents in areas of advice received from those first contacted, x24 9.45, p0.05 (again using counts of responses). This is predominantly a result of a higher proportion of BME respondents reporting that they had received advice on ‘none of these’ issues, as can be seen in Table 7. It was found that persons or organizations first contacted by BME respondents tended to advise on’none of these’ issues more often than others (e.g. local councils and ‘other’ adviser types were far more likely to do so than solicitors most often because they were not able to provide help in relation to the problem presented to them). However, this does not fully account for the discrepancy observed. In general, then, BME respondents reported advice to be of less utility than that received by white respondents, and while the utility of advice could be explained for some cases by the type of adviser contacted, this did not account for roughly a quarter of such instances. Respondents were also asked whether they were satisfied with the advisers they contacted. These questions took two forms: a) did they find the adviser helpful; and b) would they recommend the adviser to another person? A slightly higher proportion of BME respondents /

/

/


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Table 7. Advice given by advisers to white and minority ethnic respondents. Derived from the question ‘‘Did (adviser) give you advice about any of the things on this card at any time?’’

None of these Your legal position Procedures/what to do next Financial position Other type of advice Total

White

BME

134 10.4% /.7 334 26.0% .1 547 42.6% .1 179 14.0% .4 89 6.9% /.2 1283 100.0%

19 19.0% 2.4 25 25.0% /.2 39 39.0% /.5 8 8.0% /1.5 9 9.0% .7 100 100.0%

Again, Each cell presents a count, column percentage and a standardised Pearson residual.

answered that they found the adviser either ‘not very helpful’ or ‘not at all helpful’ (31 per cent: 22 per cent). Also, higher proportions of BME respondents said that they would definitely not or probably not recommend the adviser (22 per cent: 13 per cent). Overall, MannWhitney tests treating rating categories as continuous variables indicated that differences for helpfulness were insignificant, U22846.5, p0.063. There were, however, significant differences in recommendation with BME respondents giving poorer ratings than white respondents, U 21068, p0.002. Therefore (as well as the evidence discussed above demonstrating that BME respondents were less likely to receive good quality advice), it appears that BME respondents were less likely to recommend advisers than white respondents. There does, then, seem to be some difference of experience or treatment within the system. BME respondents are more likely to report that they received no substantive advice from an adviser, and this cannot be explained by reference to adviser type. Similarly, these respondents were less likely to recommend their first adviser to others, a trend that cannot simply be explained by choice of adviser. To summarize, we have found that BME respondents to the survey were more likely to receive poor quality advice in connection with a justiciable problem than were white respondents. They were also more likely to take no action to deal with a justiciable problem. In each of /

/

/

/

634


these cases, the findings appear to be related to the ethnic variable, and not other potential explanatories such as problem type. BME respondents, however, did not report a greater incidence of justiciable problems than white respondents (although differences between more specific ethnic groups did emerge from a more detailed analysis). It was found, though, that distinct differences existed between black, Asian and white respondents in relation to advice-seeking behaviour and experiences of accessing advice in the civil justice system. The data from the LSRC Periodic Survey of Justiciable Problems do not, though, provide adequate information as to why this may be the case. Having established that the evidence demonstrates disparity of experience, or of perceived experience, within the civil justice system, we must now ask whether these differences can be attributed to the existence of ‘institutional racism’, and if so, what are the implications of this finding? The survey evidence would certainly appear to meet the requirements of institutional racism, as laid out by its advocates; BME respondents overall reported worse experiences and treatment than white respondents. The findings indicate that there are real differences in ‘consumer behaviour’ between both the white and BME groups, and between the white, black and Asian groups of respondents with regard to problemhandling strategy and use of advice and legal services. These differences could be due to differences in language ability, or cultural differences between communities; to the characteristics, behaviour or preferences of the respondents themselves. However, they could also be due in part to the targeting of public and private resources to particular adviser types and therefore, given access patterns, different sections of the population. We have not been able to address in this article the common belief that many advice agencies have a tendency to be located in more ‘white’ areas of cities. However, our findings are consistent with such a belief. Whatever the reasons for differential advice access patterns, though, it is clear that the above findings taken together provide some cause for concern, both to policy-makers within the field of advice and legal services, and to BME communities. There are manifest implications to be addressed, in terms of quality and appropriateness of advice given to BME populations in England and Wales. Despite this, however, we argue that it is difficult to conclude that these survey findings indicate that a systemic bias has been found to exist in the civil justice system. Issues of racism were, in fact, not at all addressed by the survey, outside of respondents’ experiences of racial discrimination. Can it really be possible to demonstrate that ‘institutional racism’ exists using findings from a survey that did not, for the most part, address any issues of racism? The findings discussed here, while revealing


635

certain differences between the white and BME populations (and importantly, at times, between different BME populations), do not necessarily point to the existence of racist practices within the civil justice system. ‘Institutional racism’: Can the concept work? Having attempted an application of the concept of ‘institutional racism’ in social research, we have found it wanting. For this concept to be of use to social scientists and social researchers, a more thorough and exacting definition is required. The problems discussed above are not easily resolved. However, we argue that because of the lack of clarity within concepts of ‘institutional racism’ outlined above (and these are not particular to the Macpherson definition), it is not useful as a social scientific term (see Layder 1990). The analysis of findings from the periodic survey of justiciable problems also demonstrates the difficulties inherent in identifying institutional racism by outcome only. It is not then clear where racism exists, or who or what is racist. This raises the issue of the extent to which the existence of racist belief is relevant to the identification of ‘institutional racism’. However, these shortcomings do not mean that one cannot describe institutions as having racist procedures and processes. The term ‘institutional racism’ implies that it is the institution itself that holds and acts on racist beliefs. This is clearly unsatisfactory. However, due in part to the official use of the term, and the wide media coverage given to the report, the concept ‘institutional racism’ is now widely accepted as valid. The popularity of the term notwithstanding, we argue for the adoption of an alternative concept that does have social scientific value. The existence of pervasive racism within an institution cannot be merely at the level of social actors nor agents within that institution; when we are discussing processes as well as behaviours and attitudes we are going beyond what can be attributed to the human beings who occupy roles within that institution at that time. In other words, the social world consists not only of people but also of social relations, the results of the interactions between people.8 Such a view entails a stratified account of the social world, capable of distinguishing between people (in the case of the criminal justice system, principally police officers), and structured social relations (such as, in this case, the criminal justice system, the operations of the police force and a milieu in which ideas about race are routinely used). Thus in considering whether, to what extent, and in which ways, racism is institutionalized in the criminal justice system, we need to know in what contexts people draw on race ideas, and what features of their social position allow them to embed these ideas into the everyday

636


processes and procedures in which they participate. To see racism as part of the processes of institutionalization in this way is to keep it firmly anchored in identifiable ways with what people do. This concept of institutionalized racism thus has a more precise definition than ‘institutional racism’. The means by which racist practices are incorporated into the operations of an institution can be examined. It is therefore well suited to the tasks of social research (although, and partly for this reason, it may be ill-suited to some political agendas). The LSRC survey’s emphasis on outcome, while highlighting a discrepancy of experience between BME and white people in the civil justice system,9 is inadequate in providing evidence of the existence of institutionalized racism within the civil justice ‘system’. We would therefore recommend that further work be conducted to determine the key causes of these differences. Acknowledgements Thanks to the National Centre for Social Research, who conducted the survey fieldwork for this project. Our thanks are also due to the anonymous referees for their insightful and helpful comments on earlier drafts of this article. Many thanks also to all those who responded to the Periodic Survey: without their participation, this research would not have been possible. Notes 1. For example, DCA is currently funding a range of research under its Courts and Diversity Programme, including Hunter’s (forthcoming) work on BME experiences of housing possession cases. 2. ‘Justiciable’ refers to problems that have a potential recourse through law: that is, the problem can be dealt with via the justice system, but this means of handling a problem is not the only way of dealing with one. 3. For brevity, we include only output relating to ethnicity, though interested readers may contact the corresponding author for full details of analyses. 4. However, with divorce problems, although the regression analysis did not reveal a significant difference between the white, Asian, black categorizations, a difference between the likelihood of either white or BME respondents experiencing divorce problems did emerge. Further scrutiny revealed that Asian respondents are the group least likely to report having experienced a divorce problem in the survey, with not much difference between either the white or black groups of respondents. 5. Here, because of low numbers for this question response, only a comparison between white and BME respondents was possible. The analysis presented in Table 4, though, shows that most differences between these two groups with regard to strategy is strongly linked to Asian rather than black respondents. The findings discussed below should therefore be understood in this light. 6. Because the survey was examining in some cases, consumer experiences, there may sometimes be confusion over what constitutes a local council or an advice agency service.


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‘Local council’ as a category may in large part be a residuary category consisting to a great extent of non-advice oriented departments. 7. Other sources of advice include barrister, claims agency, court staff, housing association, member of parliament or local councillor, ombudsman, other legal consultant, police, religious organization, social services/social worker, or other (specify). 8. Holdaway’s account of racism in the criminal justice system addressed just these points, and it is partly for this reason that we argue that his approach is incompatible with the concept of ‘institutional racism’. 9. It should be noted that the civil justice system is much more ad hoc and less centralized than the criminal justice system. Although we cannot deny that racism is a potential explanatory variable in some of the differences that emerged in our analyses, it is difficult to claim that such racism is institutionalized in a ‘system’ that is not itself systematic.

References AGRESTI, ALAN 2002 Categorical Data Analysis, 2nd edn, New York: Wiley CARMICHAEL, STOKELY and HAMILTON, CHARLES 1967 Black Power: The Politics of Liberation in America , New York: Vintage books FITZGERALD, MARIAN 1990. ‘Crime: an ethnic question’, Home Office Research Bulletin 28 , London: HMSO. GENN, HAZEL 1999 Paths to Justice, London: Hart HOOD, ROGER 1992 Race and Sentencing , Oxford: Clarendon HOLDOWAY, SIMON 1997 ‘Constructing and sustaining ‘‘race’’ within the police workforce’, The British Journal of Sociology, vol. 48, no. 1 pp. 19 /34 _____ 1999 ‘The Stephen Lawrence Inquiry: Some Sociological Observations’, Sociological Research Online 4(1) HOME OFFICE 2000 Statistics on Race and the Criminal Justice System , London: HMSO Office _____ 2001 Statistics on Race and the Criminal Justice System , London: HMSO KLEINBAUN DAVID, G. and KLEIN, M. 2002 Logistic Regression: A Self-Learning Text , 2nd edn, New York: Springer-Verlag LAFREE, GARY and RACK, CHRISTINE 1996 ‘The effect of participants’ ethnicity and gender on monetary outcomes in mediated and adjudicated civil cases’, Law and Society Review, vol. 30, no. 4, pp. 767 /98 LAYDER, DEREK 1990 The Realist Image in Social Science, Basingstoke: Macmillan MACPHERSON, WILLIAM 1999 The Stephen Lawrence Inquiry, London: The Stationary Office MASON, DAVID 1982 ‘After Scarman: a note on the concept of ‘‘institutional racism’’’, New Community, vol. X, no. 1, pp. 38 /45 MEHTA, CYRUS R. and PATEL, NITIN R. 1996 SPSS Exact Tests 7.0 for Windows, Chicago: SPSS Inc MILES, ROBERT 1989 Racism , London: Routledge PLEASENCE, PASCOE, et al. 2000 Local Legal Need , London: Legal Services Commission _____ 2004 Causes of Action: Civil Law and Social Justice, London: TSO SCARMAN, LESLIE 1981 The Brixton disorders 10 /12 April 1981: report of an inquiry, London: HMSO SEALEY, ALISON and CARTER, BOB 2001 ‘Social categories and sociolinguistics: applying a realist approach’, International Journal of the Sociology of Language (152) pp. 1 /19 SIVANANDAN, A. 1982 A Different Hunger: writings on black resistance, London: Pluto Press

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SOLOMOS, JOHN 1983 The politics of black youth unemployment: a critical analysis of official ideologies and policies, Birmingham: S.S.R.C., Research Unit on Ethnic Relations WADDINGTON, P.A.J. 1999 ‘Discretion, ‘respectability’ and institutional police racism’, Sociological Research Online, 4(1) WILLIAMS, JENNY, 1985 ‘Redefining institutional racism’, in Ethnic and Racial Studies, vol. 8, no, 3 pp. 323 /48

AOIFE O’GRADY is a Senior Research Officer at the Department for Transport, and an ESRC-funded PhD student at the University of Warwick. ADDRESS: 87 Gowrie Road, London SW11 5PH, UK. Email: Bforestcourt [email protected] /

/

PASCOE PLEASENCE, ALEXY BUCK and NIGEL BALMER are respectively Head, Deputy Head and Senior Researcher at the Legal Services Research Center. Email: [email protected] ADDRESS: Legal Services Commission, 85 Grays Inn Road, London WC1X 8TX. /

/

BOB CARTER is a Senior Lecturer in Sociology at the University of Warwick. ADDRESS: Department of Sociology, University of Warwick. HAZEL GENN is a Professor of Socio-Legal Studies at University College London. ADDRESS: Socio-Legal Studies, Faculty of Laws, University College London

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4 April 2008 President’s Update Legal Aid This week, I hope will mark a watershed in the affairs of legal aid lawyers. Could it be that we have at last reached the bottom of a long slow curve of decline and that from here the way could be upwards? Ever since I assumed the Presidency in July last year, I have been saying to ministers and senior LSC officials that legal aid policy has made life impossible for practitioners. On the one hand, government expect us to behave in a business like fashion yet their haphazard reforms have made it impossible to run businesses in any sensible way. Give us certainty and stability and a voice in planning the way forward, I said, and practitioners will respond. A court victory later, the LSC has been forced to negotiate with the Law Society. The negotiations have been difficult and protracted. The resulting settlement provides some limited and welcome increases in rates. It also deals with some intensely annoying aspects of being a legal aid lawyer such as UPOAs, the quality regime, cost compliance audits, uncertainty of policy shifts and the payment regime. It provides a route map for civil work to 2013 and puts mainstream BVT back until that date. It will offer a route map for crime and some slow down in implementation of BVT there also. It does not get rid of all the problems. Mental health, child care and asylum lawyers in particular still face immense problems, and the society is about to begin some research into those areas of work. Challenges still exist for criminal legal aid. The LSC has committed to more open engagement with practitioners and the Society will work with them in that spirit.

New York, New York This week, I have been in New York speaking at the ABA Section of International law (SIL) Spring Conference. The Law Society has been very prominent at the conference. A great deal of interest has been shown in our own International Division and many new foreign lawyers have signed up to pay to obtain networking opportunities with our firms at home. In addition, I hosted a reception at the home of the British Consul General with 90 guests, including Cherie Blair, and at which I signed a Memorandum of Understanding with the ABA Section of International Law about joint working for the benefit of all our members. Many of those attending were English solicitors working in New York, and they were delighted that their professional body is engaging with them. Whilst here, I have had a breakfast meeting with leaders of our major UK firms in the City. I have also had bilateral meetings with the New York City Bar and the New York State Bar as well as meeting the Senior New York Judge in Albany – the capital of New York State – who is responsible for practice rules in New York State. My impression is that New York is surprisingly parochial despite its important role in world affairs. The importance of globalisation is understood but it does not seem to be matched with a desire to take advantage of the new opportunities this brings. Consequently, re-qualification for foreign lawyers may not be made easier in the short term. However, I am convinced that the more open attitude of our legal profession is the right way forward. It would be disastrous for the SRA to make the mistake of using the blunt instrument of Qualified

Lawyers Transfer Test interim reform to place more barriers in our own home market and I intend to brief Peter Williamson fully on my return about what I have learned both from my trip here and in Nigeria. Reform of QLTT is needed but such reform must be brought about very carefully and thoughtfully if it is not to harm our advantage on the world stage.

Leadership Summit – Feedback Thank you to all of those who attended our recent Leadership Summit at Chancery Lane. I thoroughly enjoyed what was a very interesting and thought-provoking forum for discussing the issues we as a profession face, and a chance to look at the practical steps the national and local law societies can take to help our members. The feedback we have received indicates that you agree, with the vast majority of participants rating the conference as ‘good’ or ‘excellent’ overall. You can read a short report of the feedback from the Summit by clicking here (PDF, 58kb). We received constructive suggestions on how we might build on the success of the event in the coming years. In particular, participants recommended: •

a greater focus on how national and local law societies go about supporting solicitors; and

•

working to ensure that we meet the challenge of supporting the entire breadth of the profession, from the high street to the City. Issues such as equality and diversity, corporate social responsibility, retention of young solicitors and the impact of new market opportunities will affect different segments of the profession in different ways, and this should be reflected in our collective outlook and activities.

In my view, the Summit demonstrated the importance of strong and effective leadership at every level throughout the profession, to protect and promote the solicitor brand in a period of immense change. Please feel free to submit any further feedback or recommendations you may have to assist us in planning next year’s event.

Andrew Holroyd OBE

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Globalized legal practice: How prepared are Nigerian lawyers? Written by Innocent Anaba Thursday, 03 April 2008

The world is coming together at an alarming rate in practically all spheres of human endeavour and many international bodies are making this development faster than we could grapple with. The World Trade Organisation (WTO), the International Monetary Fund (IMF) and many other agencies of the United Nations and continental bodies are making the drive to harmonise human endeavour worldwide, faster than most of us could imagine. The pros and cons of globalization notwithstanding, how prepared is Nigeria and, particularly lawyers in the country? At the recent 3rd Business Law Conference of the Nigerian Bar Association (NBA) Section of Business Law held in Abuja, with the theme ‘Law and Development in a Globalized Economy’, the issue of Nigeria competing in a globalized market was exhaustively discussed and there were divergent views on the matter. But the question on the mind of most participants at the conference was 'how prepared are Nigerian lawyers?'

Olisa Agbakoba,President,Nigeria Bar Association

The conference drew participants from all over the world. Mr Nana Akufo-Addo, former Attorney General and Foreign Minister of Ghana and now Presidential flag bearer of the ruling New Patriotic Party in the December elections in that country, who delivered the keynote address, acknowledged that globalization is here and cannot be wished away and that Nigeria and Ghana must re-tool to get the best out of a globalized world. He stated that trade amongst the 250 million people in the sub region will boom exponentially if democratic principles are sustained in governance. Former Attorney General of the Federation and Minister of Justice and former President of the Nigerian Bar Association (NBA), Chief Bayo Ojo (SAN), who spoke at the occasion, said “the world is a global village now, whether we like it or not. So, if you don’t rise to the occasion, you will go under. And that is why I said, a long time ago, that we have got to change our tactics, in terms of acquiring knowledge, to meet up with the new challenges of the legal profession”.

According to him, “the legal profession has moved from charge and bail, recovery of debts and so on. It is now more complicated. New areas of law are opening up where expertise is needed and, each time, people come from outside to do it and get away. So, if we still do not move up, civilisation will get under. But now that we have initiatives like this session on Business Law, it

will equip us to partake in this globalisation exercise wind that is blowing across the world. You saw a situation where Nigerian lawyers from the UK came and said that they wanted to partner with lawyers in Nigeria so that they can do their own thing here”.

George Etomi,Chairman, NBA's Section on Business Law

Mr Andrew Holroyd (OBE), President of Law Society of England and Wales, who spoke at the event, said “this globalisation thing is actually about self-confidence. If you have the selfconfidence, you go out and start doing legal business across the world. You will have more confidence than when others come into your jurisdiction, you are actually going to gain from that”. A major issue that attracted reaction from all quarters was whether Nigeria should open up its legal sector to foreigners. Dr Sola Adesola, who spoke on Access to Global Trade: Challenges and Opportunities for Africa’, said “instead of being defensive or passive, African countries need to be more active in strategic negotiations”. Further, he said, “it must be stressed that these initiatives do not extend far enough and more needed to be done by the international community to improve market access for African countries in the Doha Round of WTO trade negotiations. The WTO rules should contain sufficient incentive, especially financial and technical assistance, to enable Africa to adjust their international requirements”. According to him, “Africa is disadvantaged by the WTO rules and especially by the manner in which they are negotiated and their implementation costs”. Mrs Mfon-Ekong Usoro, in her contribution to the debate, said Nigeria should take centre place in the debate at WTO and should ensure that its concerns were addressed, since that was what the developed countries did, to get a better bargain from the WTO.

Mr Desmond Guobadia disagreed, insisting that time was not ripe for African countries, particularly Nigeria, to open up its legal sector to foreigners. His argument was that there will be no reciprocal access of African lawyers to the economy of the developed countries. According to him, while the foreign lawyers will be interested in working in tele-communication, oil and gas, multinational co-operations in Africa, the best African lawyers who want to practice in the developed societies will get is immigration jobs and other less lucrative jobs which, in the long run, places African lawyers at a great disadvantage.

Further, he said, African countries should learn to use more of African lawyers for our practices, insisting that he is opposed to liberalizing African legal practice, at least, for now. One other issue, the President of the Nigerian Bar Association (NBA), Mr Olisa Agbakoba (SAN), raised was the issue of visa for Nigerian lawyers. He pointed out that, while it was easy for foreign lawyers to obtain visa to come to Nigeria and other African countries, the same cannot be said for Nigerians and Africans who want visa to travel to the developed societies and there was no assurance that it will not be a problem for Nigerian lawyers who would want to go abroad to handle legal jobs, if we eventually open up our legal sector to foreigners. Mr George Etomi, Chairman of Section on Business Law, who spoke at one of the sessions, said that it was an affront and assault on Nigerian lawyers that foreign lawyers prepared and signed documents in which about 40 unregistered companies were allegedly awarded contracts, as uncovered by the present investigation by the House of Representatives' investigation into the money expended by the federal government on the power sector. Etomi insisted that, if Nigerian lawyers were contracted for the job, they would have carried out the necessary investigation on the companies that applied for the contracts and save the country the present embarrassment. Mr Ayo Okesanya, who spoke on ‘Implication of globalization of legal service’, said with businesses and commercial entities engaging themselves in what is an increasing borderless world, law firms must place themselves in positions to respond adequately to clients' demands, particularly when the demands have international or cross-border implication. Further, he said, law firms in Nigeria and African are not immune to these changes and many in Europe and the United State have already begun to embrace and address the challenges that come with globalization. From Okesanya’s position, it is evident that our law firms and lawyers in Africa and Nigeria may not, after all, be ready for the inevitable globalization. Mr Thomas Okojie, who spoke on ‘Globalization of Legal Services in Nigeria, said globalization in the good sense will lead to the growth and creation of wealth, power and knowledge, but, in the negative sense, it will lead to exploitation by stronger and more developed countries and loss of cultural identity. He added that it will, however, in the long run, lead to increase in competition, foreign investment and capital flow, technological adoption and advancement, economic and social infrastructure development, human and capital development and policy and regulatory change. As many speakers at the conference pointed out, globalization has obvious benefits and, as was also pointed out, embracing globalization will not only undermine the ability of lawyers in the country, it may lead to exposing them to more formidable and experienced law firms from developed society which will leave Nigeria lawyers victims of globalization, if we open up without addressing the fundamental issues that will enable us complete. For us to compete, we must be well trained, have adequate knowledge about information technology and specialise in specific areas. All hope is not lost as Mrs Usoro pointed out and as Okasanya said, there is a need for the serious law firms that wish to compete at the highest level for top clients to respond to the challenges of globalization. The conference also featured the presentation of papers on a wide range of areas, covering practically all fields of law, development and globalization.

Former Chief Justice of Nigeria, Justice Muhammadu Uwais, who chaired the open-ing ceremony, commended the organisers of the programme for putting together the event, which he described as

a world class event. Attorney-General of the Federation and Minister of Justice, Mr Michael Aondoakaa (SAN), who represented Vice-President, Dr. Goodluck Jonathan, said government would look into the recommendations of the conference and do whatever was possible to lay the foundation for sustainable economic growth.

President of the Pan African Lawyers Union (PALU), Mr. Muna Akere, led a team of African Bar Leaders to the conference. The highlight of the opening session was the key note speech by Mr Akufo-Addo. He expressed his vision of a strong West Africa led by Ghana and Nigeria to steer the region to economic prosperity. Over 700 participants took part in this year’s conference, which saw the introduction of new sessions including that on Organisation for the Hamonisation of Business Law in Africa (OHADA), Islamic Business Law and Corporate Counsel Forum, which was inauguration by the NBA President, Mr Agbakoba. The session on health was a major feature of the conference and lectures on the heart, diabetes and kidney were delivered by Dr. Yemi Johnson, a leading cardiologist based in the United States, and Dr. Mike Etomi, a Nephrologist, also from the USA. Commenting on the conference, Chief Bayo Ojo, who chaired the session on ‘Developing Business through Law’, said this conference provides an excellent opportunity to network with other lawyers from other jurisdictions and see what the latest developments are in the profession. I was so impressed with Nana Akufo-Addo’s keynote address. So, the whole essence of our session is to bring to the fore the opportunities which lawyers can latch on to”. Mrs. Ifueko Omogui-Okauru, Director General, Federal Inland Revenue Service, said “It was a very good idea for this year's SBL conference to focus on taxation. I think we need a lot more lawyers to specialise in tax matters. Many of our lawyers are just beginning to understand what the tax system is all about. You can't have a very virile tax system in the country without lawyers being involved. I am very happy that a whole session was created for taxation”. For Chief Akuro George, “SBL has been so active since its inception under the leader-ship of George Etomi. They have shown a lot of expertise and organisational ability. This particular conference has been a phenomenal success in terms of the level of participation and the caliber of resource persons. The way and manner issues were addressed frontally is quite encouraging. To me, it didn’t come as a surprise. Quite a lot of skill went into the planning. Seeing lawyers from other jurisdictions in large numbers here is a reflection of the net-working that has preceded this conference. I am quite satisfied”. Kondwa Sakala Chibiya of the Law Society of Zambia, said “we, of the Law Association of Zambia, were invited by the Nigerian Bar Association Section on Business Law to partake in this conference and I am really impressed. It is very well organised and it has given an opportunity to many lawyers to get together and discuss issues that are important to the legal profession. My opinion on the issue of globalisation of legal services is that all the leaders of the Bar Associations should find a common platform and organise a conference for all Bar Associations in Africa so that we can sit down and agree on what we consider important on this crucial issue of globalisation of legal services. This is why conferences of this nature are quite necessary”. SBL Director of Administration, Ms Omoua Oni-Okpaku, said “what we have tried to achieve in organising this conference is international standards. We are following the standard of the International Bar Association. Those standards are pretty high and the SBL is trying to promote business law in Nigeria.

That, on its own, is a challenge in a society like ours. The challenges of organising a conference of this nature are quite daunting. The logistics are a different matter. We left Lagos because of the traffic challenge and so we decided that our conferences should be held in Abuja. The Abuja environment is calmer and people can really be at ease. But, of course, there is the challenge of funding. The resource persons have to get their honorarium, their flights and transportation, hotel accommodation, feeding for four days. Our reputation since the first, second and third conferences really helped. Corporate organisations trusted us enough to provide some of the funding to take care of these costs. The top law firms in Nigeria came forward to sponsor. You can see the impressive list of those law firms”.

Firms reinforce commitment to diversity By Megan Murphy Published: April 7 2008 22:34 | Last updated: April 7 2008 22:34

Bathed in pink mood lighting, the stylish, besuited crowd sipped champagne and cocktails from a neon bar as Sir Ian McKellen, the Oscar-nominated actor, told of his personal journey in coming out as a gay man. As the applause for Sir Ian’s Shakespeare-charged speech died down, one of the organisers of the event reminded attendees of its slogan: “Some people are gay – get over it!” His words rang out across not a Soho nightclub but the partners’ dining room at Herbert Smith, one of London’s largest and most venerable law firms. The room, a frequent venue for power lunches over the latest takeover deal or multi-million-pound dispute, had been given a boost of colour to mark the oneyear anniversary of the firm’s internal network for lesbian, gay, bisexual and transgender employees. Law firms are looking to showcase their commitment to diversity in a range of ways as more clients insist on partnering with advisers whose workforce represents women and minority groups. There is growing acknowledgment among top London firms that the figures paint a damning picture, particularly on gender equality. Statistics show a fair male/female split among trainees, but women struggle to make up more than 20 per cent of partners at the so-called Magic Circle firms. When pitching for corporate and investment banking accounts, firms are frequently asked to provide diversity statistics. Also, according to human resource professionals, the fierce battle for graduate talent is driving firms to emphasise their inclusivity. The pool of young professionals is focused on social responsibility issues. Networks of minority and special interest employees, prevalent at investment banks such as Goldman Sachs and JPMorgan Chase, are cropping up at firms across the City as another tangible way of bolstering diversity credentials. Clifford Chance, Allen & Overy and Simmons & Simmons have founded groups to address the concerns of female, gay and lesbian or racial and ethnic minority workers in the past 18 months. Many firms boast networks tailored for certain faiths, such as Jewish and Muslim employees, and for staff with children.

Laura King, global people partner at Clifford Chance, says most of the firm’s clients demand a more creative approach to problem-solving, and this requires advisers who can draw on a variety of life experiences. “Ultimately, we find it’s better for our business,’’ she says. Critics of special interest and minority networks warn that these can further stigmatise certain groups of employees and antagonise colleagues who feel that special treatment is being given. Another issue is whether networks are being used as a sticking plaster for larger work-life balance problems. The profession has long been plagued by long hours and a hard-driving culture. Partners at several top firms say networks, though no cure-all for employee malaise, have helped make some workers more comfortable about how their identity and lifestyle intersect with their job. The true impact may not be felt for several years, says Ruth Grant, managing partner at Lovells. By then networks will have had a chance to take hold in law firm culture. “There is some catching up to do with other industries,’’ she says. “Many of these groups are still just getting off the ground.’’

UK law firms under pressure on diversity By Michael Peel, Legal Correspondent Published: April 7 2008 22:23 | Last updated: April 7 2008 22:23

London law firms are under growing client pressure to promote more women and people from ethnic and other minorities, according to the new head of one of the largest firms. Big firms were lagging behind other sectors on diversity and needed to do better for business reasons, said Simon Davies, managing partner of Linklaters. His remarks come as leading firms – driven by customer comments, the threat of lawsuits and worries about recruitment – are setting up initiatives aimed at attracting those who have felt unwelcome in a historically conservative profession. Mr Davies said Linklaters, the second-largest London firm, had decided it needed to do better in part because it was receiving an increasing number of requests for diversity statistics from clients to whom it was pitching. He cited the “helpful” impetus from customers such as JPMorgan, the US bank. He said: “If clients are pushing for things it’s more tangibly a business need.” Mr Davies said the firm’s work would benefit from input apart from simply the “male Caucasian” view. He gave as an example the rescue of a large company, where women lawyers might “better understand” the impact on families of job losses. Linklaters was starting a programme of spotting and supporting talented people, in response to the “fair criticism” that law firms had failed to match even the limited progress on diversity made elsewhere in business. The self-criticism echoes client accusations that the industry is still too clubbable and shows more zeal for turning large profits than in modernising. Big firms accept the starkness of diversity statistics that show women accounting for 50 per cent of trainees but rarely more than 20 per cent of partners. Freshfields Bruckhaus Deringer says it is trying to “improve its understanding of what practices and cultures can be changed to encourage female lawyers to stay longer”. Rosemary Martin, general counsel for Reuters, the media group, and former deputy chair of the GC100 group of company in-house counsel, said: “Any company ... sees that diversity is a very important aspect of their success. And they expect to see that reflected in their major suppliers.” Firms are also considered too traditional and – even when they attract significant numbers of non-white lawyers – stubbornly homogenous in terms of class and privilege.