It is a pleasure and a privilege to be here tonight and to have the opportunity of addressing you. I do feel a bit of a fraud though. Firstly, because I was not a solicitor in my previous incarnation, but secondly and more importantly, because I am truly insignificant. You deserve better, because depending at what date you take the statistic, I am but .6 or.8% of the senior judiciary, I can’t even manage a whole percentage point. As senior judge for diversity, that is an issue, which is high on my agenda and to which I will return.
I want to start however by posing a question. What do Baroness Hale, Baroness Butler- Sloss, Lady Justice Arden, Mrs Justice Gloster have in common with Clara Brett Martin?
The answer is simple: they were all groundbreakers. The first woman in the HoL, the first female head of division, the first female high court judge in the chancery division and the first female high court judge in the commercial court.
Clara Brett Martin was Canada’s first women lawyer (1897), other early groundbreakers were: Arabella Babb Mansfield who was the first woman to admitted to the bar in any state in the US (1869); Helena Normanton who in 1919 was the first woman to became a pupil at the bar although Eliza Orme managed to practise as a lawyer from 1873 without being called to the bar or admitted to the solicitors’ profession. As you all know, Carrie Morison was the first woman to qualify as a solicitor in 1923.
You may have heard of the recently published book called “The First Women Lawyers” by Mary Ann Mossman. This book describes the lives of some groundbreaking women in the legal profession, their trials and tribulations, women at the turn of the 20th century who came from USA, Canada, Ireland, New Zealand, Australia, India and Western Europe. The idea for the book had its beginnings in a question posed in May 1986 in Toronto, on the occasion of the Canadian Law Society’s first ever continuing education programme called “Women in the legal profession”. Many women lawyers attended the event. The question posed at the conference was this:
“What difference does it make that Clara Brett Martin succeeded in becoming a lawyer in 1897 and what difference should it make that the legal profession increasingly includes large numbers of women as well as men? Beyond the careers of individual women lawyers, what impact will the advent of a significant number of women in the legal profession have on the practice of law, on legal rules and concepts, on the role lawyers play in our society? Most importantly will women who become lawyers, be just like men who are lawyers or will they bring a new dimension to lawyering?”
That question is as pertinent today as it was over 20 years ago, certainly if the research is anything to go by. Whilst here the proportions of female and male law students are pretty equal and both here and abroad female judges have been appointed to high office and are becoming partners in major law firms, deans and professors at universities, research shows that the issues of gender equality in the law and legal professions still continues to present a challenge today all over the world. The publication “Women in the Law: Strategic Career Management” with which you are all familiar, both celebrates women of achievement in the law and contains invaluable advice from them. But they are just a handful of successful women and it is still the case that women, although they work as hard if not harder than men, do not seem to reap the same rewards and advancements.
Looking at the statistics, it is clear that more women than ever are graduating in law, their results being even better than the men on average. There is a healthy increase in those obtaining their practising certificates and getting partnerships, but you only have to look at the attrition rates to see that women are not reaping the same rewards and advancements as men. Some research was done a few years ago in Scotland reproduced in an article entitled “Still a glass ceiling for women solicitors?” in which one woman solicitor interviewee expressed a sentiment which no doubt many other women have felt or expressed. She said this: “ We’ll know we’ve made it when there are mediocre women in senior positions, as God knows there are enough mediocre men there. Women always have to be exceptional at everything to get there. Why, if they are equal at the start? Do women suddenly become incompetent at a certain level in a bizarre and unexplained way?” Of course the answer is no. It is largely due to the culture within which they operate. It is a culture which is changing and but for the initiatives of an organisation like yours, the situation would be even worse.
A similar picture pertains at the Bar. It is no surprise therefore looking at the two professions that the figures for the judiciary, the senior judiciary in particular are disappointing. As noted by Lady Justice Arden in a recent address to the Chancery Bar Association in January of this year, since October 2005 no woman has been appointed to the High Court bench. In fact since my appointment in October 2004 out of the 22 appointees, only two were women i.e just under 10% which is roughly the percentage of female high court judges at present. Of those 22 appointments none were from minority ethnic backgrounds. Lady Justice Arden pointed to the Equal Opportunities Commission report, which highlighted that there are 78 “missing women” amongst the 194 senior judges. The report concluded that it will take about 40 years for women to reach an equal number to that of men on the bench. The surprising thing, said Lady Justice Arden, is that there has been this notable lack of progress for women, at a time when there is considerable pressure for diversity in the profession and on the bench. She notes that appointment has to be on merit, but that merit should take into account the different, but equal kinds of contributions that women can make.
I have just read an interesting essay in this month’s edition of the journal “Legal Studies” called “Judicial Diversity, the woman judge and fairy tale endings” by Erika Rackley. She sets out stories of many women judges in different jurisdictions and at different times who have suffered from the prejudice of their male colleagues, with reactions to them being from the largely indifferent to the downright hostile. The author argues that the Lord Chancellor’s promotion of diversity on the one hand, while at the same time saying that selection is on merit, irrespective of gender, race, age, religion etc, is somewhat disingenuous. The fact that the JAC has elevated merit as the sole criterion makes their task in increasing diversity, in her view, much more difficult. The author goes on to suggest that despite the ongoing quest of the DCA to increase diversity within the judiciary, the current initiatives do not confront fully an underlying question, namely what should a truly diverse judiciary look and be like, what sort of judiciary do we want. The inference to be drawn from her approach is that we should be starting with a blank sheet rather than starting from the image of the judiciary that now exists. The starting point it is argued, is diversity itself, which compels us to create a space, in which difference is celebrated and valued in its own terms rather than increasing the number of “outsiders” into the traditional fold. The essay is thought provoking and repays reading.
Bertha Wilson in an essay entitled “ Will women judges really make a difference?” said this: “women view the world and what goes on in it from a different perspective from men; and… women judges, by bringing that perspective to bear on the cases they hear, can play a major role in introducing judicial neutrality and impartiality into the justice system” This would seem to accord with what Lady Justice Arden was saying about merit. Not all would agree, not least many women themselves, that women necessarily speak with a different voice, but it must be right that diversity in whatever form it comes, does and must contribute to the debate.
Today is International Women’s day and I want to use this opportunity to salute a courageous female judge from Zimbabwe. She is Justice Rita Makarau, Zimbabwe’s new High Court Judge President. In her speech, opening the 2007 legal year in the High court in Harare she said this:
“It is not in the tradition of the judiciary to publicly speak on any issue including drawing attention to needs. The unique feature that sets the judiciary apart from other State organs, that of carrying out its mandate without fear or favour, necessarily prevents the judiciary from crying out when it is in need lest help come from undesirable sources. I am breaking with tradition briefly and for today only to agitate for better funding to the justice delivery system as a whole, generally and in particular to the judiciary. It is wrong by any measure to make the judiciary beg for resources from any other source. Yet if I do not do so today, the judiciary shall continue to operate without computers, without adequate stationery and shall continue to use libraries that the Chief Magistrates has aptly described as varying only in their degree of uselessness.” She goes on to outline the problems this lack of funding creates including allegations of corruption within court administration.
These are words of criticism spoken with moderation by a woman in the public eye, in a country where it is dangerous to criticise the government either explicitly or implicitly. When we hear such words, we should consider ourselves fortunate to have the system we do, but we must not be complacent and we must strive not only to uphold the standards, but to improve them, especially in times when the justice system is suffering from cuts across the board. The difference is that you as lawyers can openly discuss and debate the pressures facing the legal system. In Zimbabwe, it takes much courage. I salute Justice Makarau for her courage and commitment.
We need women like that in our judiciary, women who can make a difference to and in the system. I know that part of your mentoring scheme extends to judicial appointments. I saw the advert for the evening dealing with sitting on Tribunals, getting information about this from the horse’s mouth – i.e those who sit on Tribunals. This work of yours is essential in encouraging and informing those who have an interest in sitting. As senior judge for diversity, my door is always open to those who wish to come and discuss the issue of sitting and for those who may wish to spend a day or two in court with me seeing the world from the bench and getting a feel of whether it is a world in which they would feel comfortable. You can contact me via Tilly or by contacting my clerk John Ponting at the RCJ. It has to be said that the new initiatives introduced by the Lord Chancellor - salaried part time sitting, job sharing, in the future the ability to return to practice, make the job more attractive, flexible and suited to the needs of many women. However, one of the real issues which needs to be addressed in relation to solicitors is demonstrating to the senior partners the benefits of having someone who sits as a part time judge can have for the firm, its work and its profile, for benefits there undoubtedly are. Look at the Bar Directory and you will see that every chambers sets out those members who are part time members of the judiciary. Not only that, they will also have listed the names of full time members of the judiciary. There is no reason why the same should not pertain to your profession. The message is - that the skills and experience acquired from part time sitting make for a more rounded and experienced lawyer, one who can anticipate and understand what does and does not work in court and one who will bring a more balanced perspective to a case. Surely this is an invaluable tool for the conduct of the client’s case?
So the challenge continues. Looking at the changes made to the AWS and its vision of the way ahead, it is clear that you are aware of the challenges, which you all have to face. It is clear that you will rise to them and I wish you every success in your endeavours.
Ends
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