Lady Hale is shortly to retire as a judge. Well, not just any old common-or-garden judge. She is the head of the Supreme Court, the top judge. She’s the daddy. Well, the mummy. So, she has achieved all of that and at the same time has been, and continues to be, a woman through the entire process. Amazing.
So, is she to be an icon for feminism and women’s rights? Don’t know, don’t care. The reason is this – gender is the wrong prism, the wrong ‘frame’ to use.
Behold this image –
These are the judges of the Supreme Court (formerly the House of Lords and, no doubt, Ladies). Yes, there are not many women. Yes, there are no black or brown faces. But these are not the attributes I am interested in. In my estimation, these are not the attributes we should be primarily concerned with. Why? Because the biggest problem in the area of judicial diversity is class, not gender or race.
One of the propositions put forward in the ‘Political Compass’ survey is “Ultimately, we are more divided by class than by gender or race”, and the reader is asked to indicate whether they agree or disagree, and how strongly. I always agree strongly with that claim. Perhaps class is the only thing I have to moan about. I am a white, middle-aged, lower-middle class heterosexual man. I might have other hobby-horses were I black, gay or female. So, good – that’s out of the way. My little whinge is about class. Fortunately, I am very balanced – I have a chip on both shoulders.
All of the judiciary is posh. Always has been. From magistrates to Supreme Court judges. This is the factor that makes judges ‘out of touch’. And that is the BIG problem.
This problem manifests itself in many ways.
Magistrates are the only judges that are not legally qualified. But it is fair to call them judges – after all, they judge. That’s their job. How did they get this job? Years and years of rigorous training courses and exams? Years of graft and proving themselves to be fair, equitable, reasonable and relevant?
No. They got the job by asking for it. That’s it. There are no exams. There are no tests of any kind, except a couple of checks to try to ensure that they are not serial killers and so on. The main qualifying criterion for being a magistrate is to be loaded. Of course, it’s not put quite that way. But magistrate’s justice is justice on the cheap, because magistrates are not paid. So, to be a magistrate, you need dosh. You need to be, to use the euphemism, ‘financially independent’, because the job pays nothing.
So – who wants to be a magistrate? Rich busy-body narcissists that like throwing their weight around and judging others. Many are retired Civil Servants – as if we need them to be any less ‘connected’ to the real world!
Now, it may be that there are legions of retired hairdressers and builders that are just queuing up to be magistrates. I don’t know. But they don’t seem to make it to the Bench, do they? Is this because the ‘system’ discourages or prevents this ‘type’ from becoming magistrates, or is it simply that judging others is not something that working-class people fancy? Perhaps they do not feel able.
At all events, what we end up with is what we currently have, and have always had. Posh, entitled, out-of-touch narcissists.
Now we like to think that the magistrates clerk provides some balance. Of course, this is not true. Because the clerk is a lawyer. And lawyers tend to be posh too. The magistrates do what they like. The clerk is there only to stop (or try to stop) the magistrates doing something that the law simply does not empower them to do. Just as well. But it doesn’t always work like that.
I was ‘up before the beak’ a couple of years ago on a matter relating to business rates. I had been prosecuted for non-payment – that is, I, as an individual, was prosecuted because my company had not paid business rates. The reasons are unimportant. The point is that the individual had been prosecuted for a corporate debt. The law is clear that this is not permissible, because of something called the ‘corporate veil’. This is a concept established by case law – the case is over 100 years old and so has been good law for more than a century. The case of Salomon (1897!) established that a company is a completely separate legal entity to an individual. An individual (whether a director or shareholder of the company or not) cannot be sued or prosecuted for liabilities of a company, and visa-versa. Of course, the clerk knew all about this, but her protestations were disregarded by the Mags. As far as they were concerned, my argument was all ‘smoke and mirrors’ and judgment against me personally was made accordingly.
And anyone who has been before the magistrates in a family matter will know that they are useless. Indeed, most family lawyers (if you can find an honest one) will admit that, if you have a child contact/residence dispute, you are better off with a District Judge (that is, a legally-qualified Judge in the County Court). Not that this is by any means a guarantee of success of course. It’s just that, with a Magistrate, you have a 5% chance of justice. With a qualified judge, that might rise to 10%. Either way, you’re screwed. It’s just that there is a slightly better chance of some semblance of justice if your case is heard by a proper judge.
So, how do you fancy being judged by a right-wing reactionary narcissist?
The alternative is the ‘Whig’ magistrate – that is, that, whilst still offensively loaded/posh as usual, the Magistrate has a nice line in condescension. This kind of magistrate is kind to criminals. They are kind because they are ignorant – again. It’s the flip side of the same ‘out-of-touch’ coin. Here, the kindly old Mag will let crims off, and give them loads of underserved chances to get their lives together. This, of course, is because the poor old crim has had a hard life, and the kindly old Mag really can’t imagine what that kind of life must be like. But he/she assumes that this hard life provides the crim with some kind of excuse for their behaviour. If the crim was judged by his class-peers, (a builder/hairdresser or whatever), the judge would now be saying something more like “well, I had a bloody hard life too. But I didn’t turn to crime. I made something of myself. You could have too. But you didn’t. You took the easy route.”
Now, of course, there are some cases, perhaps many cases, perhaps even most cases, where the offender will not have had much choice. Poverty is an extremely difficult trap to escape from. But the Mags seem to be far too ready to accept this kind of argument.
So, you might get a reactionary narcissist nutcase, or a condescending ineffectual liberal. What you can be sure of, as with all judges, is IGNORANCE. Ignorance of normal people, their problems, travails, aspirations and standards.
All judges are out-of-touch.
County Court Judges
For most purposes, we will be dealing with District Judges. If they get it wrong, we might appeal (for all the good it will do) to a Circuit Judge. These are the two types of judge one finds in the County Court. The County Court deals with ‘Civil’ cases – that is, disputes between individuals – although most often, in Family Law, the disputes are not particularly civil!
In order to be a judge in the county court, you have to be a lawyer. That is, a Solicitor, Legal Executive or Barrister. You need a minimum of five years’ experience, and usually two of those to be served as a Deputy District Judge. Broadly, a Solicitor and Barrister take very similar examinations. I have heard it said, more than once – by barristers too – that the solicitor’s exams are actually harder. Well, in essence, the law studied by Solicitors, Barristers and Legal Executives is exactly the same, at exactly the same level. Legal Execs have to pass a smaller number of exams. They tend to specialise, so, if the Legal Exec is a family lawyer, he will probably choose to study family law, and maybe ‘tort’ (civil wrongs like negligence, defamation and so on) and maybe criminal law. A solicitor has to study these, plus a ton of law he will probably never use. In practice, the jobs of solicitor and Legal Executives look very similar – there’s no real difference in practice and a good, specialised Legal Exec can often be a better bet than a more widely qualified, but less specialised Solicitor. A barrister tends to concentrate a bit more on advocacy as he/she will spend a greater amount of their time in court.
Historically, Legal Execs were called ‘Managing Clerks’. Over the years, the Institute of Legal Executives became ‘Chartered’ and wider privileges and rights of audience were acquired. Legal Execs can now be partners in solicitors’ firms. Barristers were seen as the ‘senior’ branch of the profession. In theory that has been done away with, and solicitors and barristers are now on level terms – it’s just that nobody has told the barristers..
From a class perspective, the Legal Exec is probably lower-middle-class, the solicitor is ‘middle-middle’ (like maybe accountants and GPs) and the barrister upper-middle (comparable to surgeons, say). Obviously, these are generalisations and there will be the odd exception.
Is it the case that, the higher the class of judge, the more likely he or she is to be out-of-touch? Well, that sounds right, doesn’t it?
Superiority and Inferiority
These are words one does not hear much these days.
Over the last few years, I have read a bit of Jane Austin, H.L. Mencken, and Ralph Waldo Emerson, and quite a lot of Nietzsche. What I notice about these writers is that there are constant references to the ‘superior man’ or a ‘woman of the first order’ and so on. This is not a very popular way to express oneself any more. When I was a kid, people would refer to one’s ‘betters’. This, again, is not very fashionable now. Folk would talk about ‘breeding’.
What, I wonder, makes a man ‘superior’ to another man? Why would we think of this woman as being ‘of the first order’ and the next woman as ‘of the third order’? Strength? Education? Money? Manners? A mix of these?
Well, let’s leave that aside for the moment. All I am concerned with really is that there was a time when we thought of people in this way – superior or inferior. Many people these days do not think of others in this way. Many people. But not all.
Is it true that we are all the same? Do we all have equal value, merely by being human beings? Or, is it rather the case, that we should all be treated equally, regardless of our attributes, both positive and negative? For example, person ‘A’ might be more intelligent than person B, but person B is more handsome. Or one might be stronger, and the other kinder. One might be rude but kind, the other well-mannered but narcissistic. And so on. We all have strengths and weaknesses, and, overall, it all balances out such that, more-or-less, we have equal value. Wouldn’t that be lovely?
Or is it the case that some people are simply superior? Let us compare two men, A and B. A is intelligent, handsome, brave, educated, powerful, kind and rich. B is poor, stupid, cowardly, ignorant, foolish, selfish, ugly and vulgar. Why are we so reluctant to claim that A is ‘superior’ to B?
Which of these two men would you prefer as a judge?
Well, there may be differences of opinion here. But surely, we would all agree that, regardless of an individual’s attributes, all should be treated equally. This is what a philosopher would call a ‘normative’ claim – easily spotted by use of the word ‘should’. Next to this, we might make a ‘descriptive’ claim that, regardless of how we should behave, the fact is that we see people differently, and treat them differently. That is, regardless of how we should behave it isn’t how we do behave.
Imagine that you were a barman and two groups walked in to your pub. The first group arrive in torn jeans and t-shirts, shaven heads and have lots of Swastika tattoos. The second group is wearing Barbour Jackets, and talk dead posh. Are you really going to treat these groups in the same way?
Or…You’re walking down the street on a dark night. Person A approaches you. She is a small, pretty young woman. Or you might get person B – this is a large 25-year-old man carrying a machete and sporting a good many tattoos. In which of these situations do you cross the street and get out of the way. It may be that the machete-wielding man is a lovely guy, just out at night looking for people to help – perhaps he’s on his way to the local soup kitchen to contribute some voluntary work? He needs the machete for, well, dunno – chopping vegetables? The pretty young girl, on the other hand is actually a ruthless assassin, ready to rob you and kill you. Hmm….
Which is right? The historical paradigm with its notions of superiority and inferiority, or the latter-day paradigm of equality for its own sake?
My experience is that the answer to this question depends on whether one sees oneself as superior or inferior. Those that are superior, for whatever reason, or combination of reasons, think of themselves as superior, and treat others accordingly. They feel that they have achieved their positions of power, money and influence through hard work, intelligence, wisdom, breeding and a better education. In short, they deserve their superior position in life, and other people, because of a paucity of those same attributes, deserve their inferior position.
A ‘lower-order’ individual sees things differently. This guy is disadvantaged because he has been unlucky. He was just born into a bad situation from which it is, in all practical senses, impossible to escape. Equally he sees ‘higher-order’ individuals as ‘lucky’. They were invariably born into privilege. Most lawyers have at least one parent who is a lawyer. The same is true for doctors. The class system is alive and well…
So. Disadvantaged people think we are all where we are because of luck. Advantaged, privileged folk think people get what they deserve. Funny, that.
Judged by a Hairdresser
I think most would agree that judges are probably more intelligent and better-educated, on average, than the ordinary man on the street. Likewise, the ‘man-on-the-street’ has more common sense. And, factors like education and intelligence do not speak to the central and most important attribute for a judge – an instinct for fairness. Obviously, it is perfectly possible (we see it every day in our courts) for a judge to be educated and intelligent, but biased, closeted, and out-of-touch.
It is probable that a hairdresser or a builder will have more common sense than a judge. They will certainly be more ‘clued up’. But being more ‘in touch’ or ‘clued up’ doesn’t necessarily mean ‘free from bias or prejudice’. These attributes do not speak to that most important attribute for a judge – fairness, or, perhaps, justice.
In what kind of individual do we see a highly-developed sense of justice?
Children are our future. Teach them well, and let them lead the way. I feel a song coming on…
So, let’s replace the judges with children. Or hairdressers. Or builders. Perhaps the village elders. Or, in fact, anyone else. The judges can just advise on the law, like the magistrates’ clerks. But let’s leave fairness and common sense to 8-year-olds. They can make the decisions.
Lady Hale done good. No doubt. She made it in a man’s world (albeit that her first job as a Supreme Court Judge was to supervise the décor and furnishings of the court..). All power to her.
There are many factors at play. Obviously, she is educated and intelligent. Maybe she is just. She is a woman. And she is privileged. She says that she has had a privileged life but that she does not come from a privileged background…yeah, whatever.
Let us imagine her with all her current attributes, but without that of privilege. Would she still have ‘made it’? Could she still have made it?
It’s time to get more diversity in the judiciary. Yes, more women, definitely. Female judges tend to be more robust. Yes, more BAME representation.
But, crucially, we need a judiciary that is more class-diverse.
Paul Massey 30-12-2019