Has the time came where we need to “bite the bullet” and get ourselves a more demographically sufficient legal system? Is a legal system that represents society, instead of an elite few, a system that individuals can have more confidence in? This paper will argue that affirmative action is necessary to promote diversity in the legal system and that it does not inhibit justice, or the merit principle, but instead enhances it.
Affirmative action can generally be referred to as positive discrimination, reverse discrimination or preferential treatment. I will apply the American-founded term “affirmative action”, because it means I can refer to “weak” or “strong” affirmative action. The former would involve outreach programs that would help broaden the selection pool, whilst the latter would assist underrepresented groups to seek positions through measures such as a quota system(1).
Affirmative action is a “policy or a program that seeks to redress past discrimination through active measures to ensure equal opportunity, as in education and employment”(2). This quotation will be the central melody throughout this paper. I will investigate the claim that affirmative action shows a complete disregard toward the merit of a particular applicant and is consequently an affront to justice. I will also assess the claims that the legal profession is predominantly white middle class men and therefore other sections of society are underrepresented. Finally, I will examine anti-discrimination laws and the effect they have had on the merit principle.
Affirmative action and the merit principle
Unsurprisingly, the role of affirmative action has not attracted a significant amount of support in the United Kingdom. Nevertheless, academics do see it as an effective conduit for promoting diversity in the selection process of professional and public life(3). It has been argued that affirmative action is necessary to eradicate current patterns of discrimination, and that it does not conflict with the merit of the applicant but instead promotes a more accessible and society-friendly environment(4). Professor Donald Nicolson argues that affirmative action is justified as necessary, “to ensure distributive justice and equal opportunities in legal practice since alternative justifications are far less likely to be convincing in the United Kingdom”(5).This can be further reinforced by reference to Justifying Affirmative Action: Perception and Reality(6), in which the argument is put forth that affirmative action should be introduced in order to compensate for past discrimination.
It is common knowledge that certain groups have been beleaguered for generations(7). Is it not therefore morally justifiable that affirmative action is taken in order to balance the playing field and thus provide effective justice? This is the very point that both Professor Nicolson and Professor Malleson are making. In order to truly represent society there has to be a legal profession that is not predominantly white middle class men(8). Here one can rely on Aristotle’s insight that “distributive justice requires treating different people differently as much as treating equal people equally”(9).
This means that in order to have effective justice, those who belong to disadvantaged groups must be given a chance to show that they have adequate skills and are hence acceptable for important roles in the legal profession, as throughout society. If we apply Aristotle’s analogy, in order to have effective justice there should be a diverse legal profession and, according to Professor Nicolson, the only way to achieve this is through affirmative action. This would suggest that affirmative action encourages justice. It certainly does not belittle the importance of justice. In fact, the general public would be more willing to use the legal system, and indeed have more confidence in it, if they could be represented by a wider demographic.
This poses the question: is justice much different from politics? A criminal lawyer will compel a jury the same way a politician compels his or her constituents. By this logic, the judiciary (and the general legal profession) should represent society and should not be made up of upper middle class men who have lived their lives in a vacuum of privilege.
It is axiomatic that one cannot simply select a candidate because they fit the category of being different. This is where the sovereignty of the merit principle comes strongly into contention. This is firmly based on the hypothesis that being a member “of an under-represented group can never ‘trump’ merit so that the best qualified candidate will always be appointed regardless of their membership of any particular group”(10). However, the selection pool for the legal profession is too constricted(11). That is why proactive policies(12) exist. For example, an advocate, Kay Springham has recently visited children from deprived areas with an attempt to show them that a career in law is not a “pie in the sky” fantasy but instead, with hard work and commitment, something that they can all realistically achieve. This is part of Strathclyde University’s Law Outreach programme and is an excellent example of how big institutions are now encouraging a more diverse range of applicants into the legal profession.
This would pose no threat to the merit principle, but would instead broaden the recruitment pool. What does this mean in real terms? Well, it would effectively increase competition for places and thus the overall quality of those appointed(13). This is crucially important, as even the layman is aware that having the highest qualified individual is central to having an effective legal system and a competent workforce. I do not dispute that. But why can these groups not have the opportunity to demonstrate their abilities the same as the dominant groups? If we want true social transformation, we have to see past the colour of a person’s skin, and their gender, and allow them to have equal opportunity. Is this the case at present? No. One just has to look to the present legal system to be made aware of the parochial nature of its being. This is however being changed and with more programmes like the one at Strathclyde University, a more prominent and diverse legal system can exist.
Unrepresentative equals unjust?
Having confidence in our legal system is intrinsically linked to justice. Hence, how can society claim justice when half the population is underrepresented? This proposition was supported at the recent Scottish Young Lawyers’ Association lecture, in which Lady Cosgrove stated: “The population must have confidence in the judicial system, but they cannot have confidence in a system in which half the population are underrepresented.”(14)
If one applies Lady Cosgrove’s comment, we can perhaps see that affirmative action does not oppose justice but seeks to enhance it. This would, therefore, denounce the claim that affirmative action is an affront to justice. That being said, one could claim that this position in turn is easy to denounce, since the superseding constitutional understanding is that decisions should be based on law and not on personal or public opinion(15). It is also not far fetched for one to claim that this form of “weak” affirmative action is indirect discrimination, and is hence a “slippery slope” to complete discrimination against the perpetual stereotypes.
I, however, do not believe that to be the case. As outlined, we must have confidence in our legal system, and how can we have that if society is not adequately represented? We need to target state schools and make children aware that a profession in law is open to everyone; it is not some “Ivy League” industry that is only available to the elite of society, but is instead something that everyone can do. We have a duty to make sure that demographics do not matter. What matters is ability. If someone is intelligent, hardworking and aspires for greatness, why should the chains of society stop that individual from achieving greatness? If there is a race and four out of the 10 competitors are shackled, can we honestly argue that it is a fair race? Government has partly addressed this point through anti-discrimination laws.
Affirmative action and anti-discrimination laws
The Sex Discrimination (Election Candidates) Act 2002 is a rare example of legislation that uses affirmative action. Its key objective is to allow a political party to take active measures to regulate the selection of candidates for certain elections. This is with the aim of reducing inequality in the numbers of men and women elected as candidates of the party.This legislation was brought into force because evidence confirmed that achieving significant levels of female representation was impossible without affirmative action(16). The “trickle down” effect of diversity was simply not working and the legislation was deemed necessary in order to achieve equality and justice.
It will come as no surprise that this Act received criticism that the affirmative action that was being used was unfair to men and hence a way of discriminating against them, and furthermore denounced the merit principle. This would appear to oppose justice and also contradict the principle that a candidate should be selected solely on merit. This criticism did not avail for long, because “it is not about benefiting particular women candidates, but a question of justice to the electorate in being represented fairly”(17). So, although the Act allows affirmative action, it would appear that it is a necessary step to achieving justice for the electorate. This can be contextualised to show that affirmative action is not being used as an affront to justice, but as a vessel to advance justice to the stage that all of society is adequately represented.
Another good example of affirmative action is the Equality Act 2010(18), in which s 159 permits an employer, in defined circumstances, to recruit or promote a person with a protected characteristic in preference to another person who does not have the protected characteristic, provided that they are equally qualified for the post. This provision does not place an obligation upon an employer, but allows them (in the situation of a tie break) to select the candidate with a protected characteristic. Therefore, this Act does not use “strong” affirmative action, but instead encourages employers to select those with a protected characteristic over someone without. Hence recruiters will only use this Act when there is a genuine case of underrepresentation and candidates are equally qualified.
Although this is a form of affirmative action, it does not appear to disregard the merit principle, as an employer can only use it when the candidates are equally qualified. Furthermore, it is at the recruiter’s own discretion. This might lead to a more “equal” legal system. Is this enough? Why can we not bypass all the bureaucracy, and politics, and get to the real issue? There are too many solicitors, advocates and judges who are from middle class backgrounds. Steps must be taken to remedy this. Minority groups have been shackled for generations: should the tables turn?
Affirmative action in its most absolute form would appear an affront to justice. If it were applied in the sense that an individual is selected purely because they have a protected characteristic, this would axiomatically oppose justice and the merit principle. However, this paper illustrates that affirmative action has many forms and is applied through various techniques. That being said, there are arguments for and against affirmative action and at times affirmative action can be seen to oppose merit, but on the whole this is not the case.
It is clear that certain sections of society are underrepresented in the legal profession and throughout the workforce. This has been tackled through legislation such as the Equality Act 2010 and the Sex Discrimination (Election Candidates) Act 2002. The legislation, however, does not oppose justice or the merit of a particular individual, but instead encourages multiplicity. This is with the mindset that the “trickle down effect” of seeking diversity is not working and hence affirmative action is needed. As I have argued throughout this paper, having confidence in the legal system is intrinsically linked to justice. Consequently, justice can only be pursued if society has confidence in the legal system and this can only be achieved if society is adequately represented.
I do not dispute that having the highest qualified individual is crucial to having both a competent workforce and a dependable legal system. However, by broadening the selection pool this is ultimately being achieved. The thrust of this paper is to show that affirmative action does not necessarily have to oppose the merit principle. Affirmative action and the merit principle can dovetail and try to achieve equality, confidence and justice within all walks of society. This would lead to a fairer country; a country that does not worry about an individual’s background but instead champions their ability.
Does that not seem like a society that we can all trust a little more?
(1) Donald Nicolson, “Affirmative Action in the Legal Profession” (2006) 33  Journal of Law and Society.
(2) www.thefreedictionary.com/affirmative+action, accessed on 31 October 2012.
(3) Kate Malleson, “Rethinking the Merit Principle in Judicial Selection” (2006) 33  Journal of Law and Society 126-140.
(4) (2006) 33  Journal of Law and Society 109-125.
(5) Ibid, 111.
(6) A McHarg and D Nicolson, Justifying Affirmative Action: Perception and Reality, 9-11.
(7) For example: black slavery or the oppression of women: women could not vote until 1928.
(8) (2006) 33  Journal of Law and Society.
(9) Ibid 118.
(10) (2006) 33  Journal of Law and Society 128.
(12) British Telecom developed a course for female managers to help progress their careers.
(13) Ibid n 10.
(14) www.heraldscotland.com/comment/herald-view/a-legal-case-to-break-glass-ceiling.17040918, accessed on 1 November 2012.
(15) L Barmes,“Adjudication and Public Opinion” (2002) 118 Law Q Rev 600.
(16) J Squires and M Wickham-Jones, Women in Parliament: a Comparative Analysis (2001), 13.
(17) A McHarg, Quotas for Women! The Sex Discrimination (Election Candidates) Act , 154.
(18) This Act replaces the Race Relations Act 1976 and the Disability Discrimination Act 2005.
In this issue
- Cold case examination of early childhood evidence
- Incentivising employee ownership
- The diversity imperative
- Towards a more inclusive democracy
- Journal magazine Index 2013
- Reading for pleasure
- Opinion: Campbell Read
- Book reviews
- President's column
- RoS's services for solicitors
- Issues for the Union
- Critical mass
- Is this where it ends?
- Testing capacity
- Making plans for auto-enrolment
- Loosening the purse strings
- Data: don't be caught out
- Punished enough?
- Prior statements practice
- Family business musings
- TUPE: armour not gold-plated?
- Pension policy - a vote winner?
- Scottish Solicitors' Discipline Tribunal
- In with the system
- Check and double-check
- Lender Exchange ahead
- Have you the capital?
- How not to win business: a guide for professionals
- Reflections from the Complaints Commission
- Ask Ash
- Danger spots
- It's the name of the game
- Law reform roundup
- Conference aspires to judicial diversity