A Diverting Diversion on Diversity
The last post having garnered 50 comments and counting, it seems worthwhile to distill the arguments here. I discern a number of distinct threads. Oddly enough they emerged in almost exactly the reverse order in which I list them here, but the listing is logical:
- Diversity isn’t a problem.
- Diversity is a problem but it should be dealt with earlier on.
- Why bother with diversity, when the Bar (usually expressed as the commercial bar) already picks the best people?
- Diversity is social engineering under a different name and is thus an invitation to a different form of discrimination.
The first answer stands on its own. The next two acknowledge the difficulty but seek, for different reasons, to ignore it. The last acknowledges that diversity is desirable but suggests that it can’t really be achieved without imposing something even worse.
The Bar does not reflect the society in which we live. That fact seems to me to be unarguable. Should it? There seems to be no good reason why not. There seems to be every good reason why it should. That proposition can be tested by asking whether people would support a bar which was only white and male. They would not. Such a profession would be exclusionary, discriminatory and full of people (from whose ranks the judiciary of the future would overwhelmingly be drawn) who were happy to keep it that way. From a moral, legal and representative point of view there can be no justification for that stance.
Why does the Bar not represent the society in which we live? Unless you are the type of idiot who buys into the proposition that those of different colour, race, religion, physical ability or income are also less intelligent and less equipped with the qualities required, it cannot be anything to do with the applicants. It must, therefore, be something to do with how they are schooled, or how we select them. What else could it be?
Assuming that how people are schooled is a part of the issue, is it sensible of the profession to simply wash its hands of the problem and use that as an excuse? It seems to me that the morality of that can never be justified. I am not particularly interested in belonging to any group of people whose response, faced with obvious injustice, is to say “I’m alright Jack”. When that group of people purport to be delivering justice, the hypocrisy is so obvious that I wonder how stupid someone has to be before they are incapable of recognising it. Not very.
It does seem to me, in that case, that the profession must conclude that it is not sensible to wash its hands of the problem. The risk it takes by so doing is that it comes to consist either of fools or of people whose commitment to the system does not extend to living by it. If that becomes the case then the profession will have no answer to those who wish to abolish it, or to so abbreviate its privileges as to abolish it. At the moment we make a huge point of our independence, our ethical stance and our ability to take unpopular stances. Those arguments are worthless if, on examination, we will only be independent, ethical and take unpopular stances if they don’t involve our own behaviour.
Finally, on this point, the argument that schooling is irremediable seems to me to be obviously nonsensical. What, then, is anyone learning in pupillage? Why is a barrister of 2 years’ call not capable of taking a difficult issue to the Supreme Court? We all acknowledge that the profession is one in which good barristers never stop learning. Once that acknowledgement is made, why is the state of learning at the time of application for pupillage so important – other than that it provides an easy way of distinguishing between candidates and encourages those picking the pupils to determine who is most like them?
You will note that all of this grants Oxbridge the place it holds in the hearts of what – to my mind – are far too many of you. The notion that Eton produces a particular type of person, ready to lead the world is now merely an amusing anathema to most of us. Even were it to be accepted (and I do accept it) that Eton produces people with a particular ability to be charming and to speak authoritatively, it would strike us as absurd that such qualities entitled anyone to anything, or could not be acquired later in life, or were the be all and end all of the qualities required for success. The notion that results obtained because one’s parents could afford Eton’s fees or because one was fortunate enough to obtain some sort of bursary to enable attendance there, were a signal of unmatched intellectual prowess would be similarly derided. The notion that Oxbridge provides something similar, together with subtle qualities permitting success in the practice of law – which practice Oxbridge does not even teach strikes me as equally absurd.
That there should be a required standard is not in issue. That the standard may differ from set to set is not in issue. A set might, for example, decide that particular academic ability is necessary. What is questionable is whether, having made that decision, it is acceptable to determine that such ability is shown by Oxbridge attendance. I see no reason why that should be so. What if the applicant never applied to Oxbridge? If someone applied and was rejected, perhaps they should say so (the reaction of Oxbridge to that would be interesting – how, I wonder, would it view such a disincentive to apply?). Why is success in three A-levels which probably do not include law, and may not include any subject which invites a focus on a primary fact finding exercise and the drawing of conclusions therefrom, any help in assessing the ability required? Why is success at 18 or 19 demonstrative of an ability to develop in your 30s?
It does seem to me that we could do better, and that reliance on a set of indicators which are not aimed at the profession and apply to nothing more than the first few years of practice is simply lazy. That is not even to mention the downside to the current system – which is all too obviously that human beings tend to see reflections of themselves as being most desirable.
That leaves the arguments that attempting to ensure diversity is social engineering and therefore worse, and the argument that the current system works well, so why tinker with it.
I don’t myself accept that social engineering is wrong. Coming from an ethnic group which required an Act of Parliament to enable it to vote it seems to me that the argument is not as clear cut as people might think. If the Bar still took pupils on the basis of who they knew or met (as it did for Fat Bigot and for me) we would have no compunction about changing that system. Thereafter it is only a matter of degree, and it seems to me that those who assume social engineering (a prejudicial phrase if ever I heard one) is bad are actually saying merely that the proposed change is not to their liking. Had that ever been a legitimate ground of complaint the bar would still be a woman, Jew, Muslim and black free zone.
We purport to sign up to the view that all are equal and that what distinguishes the failed applicant from the successful one – apart from the inevitable elements of luck – is ability. If we don’t measure ability as well as we might – and we don’t – then why is an alternative route inherently objectionable? That would be a difficult question even if we could assert that the current system actually does pick the best applicants. I don’t know many barristers who would make that argument (see the picture illustrating this post). Paradoxically, the huge glut of applicants means that the system we use can be pretty appalling and it doesn’t matter. Arguably, we are in the same position as a prospector at the beginning of the gold rush: we might be colour blind and be using our bare hands instead of a sieve but there’s so much gold around that anyone can emerge with a nugget. The difference, of course, is that the nuggets left behind have feelings and have paid a whacking sum of money to lie on the river bed.