I have not been to a Society of Legal Scholars conference for some time. I was looking forward to it. I was particularly excited to be able to go to all of the conference rather than just the half in which my paper was scheduled. I am doing 2 papers in the Legal Education section – more on those another time.
Travel to London was uneventful. I like uneventful. I got a fair bit of work done on the train in spite of the supposed quiet coach being the noisiest coach I have been in for a long time. Is it the thing where you’re told you’re not allowed to do something and therefore immediately want to do it? I got the tube out to Mile End and found the campus and even the right building very quickly. I also managed to get a ticket for the dinner at the end of day 1. I hadn’t booked because I wasn’t going to go but then the opportunity for a catch up with Richard C arose so I really wanted to go.
I had arrived in time for lunch – a rather ordinary pasta with a veggie sauce (I think there was a chicken one too) and then I headed to the first session. The first paper was great. I expected it to be. It was a paper by Marc Mason (Westminster) and Steven Vaughan (UCL) reporting on their research with LGBT+ barristers in England and Wales. Bonus points if you ‘get’ the title ‘Going to the Gay Bar, Gay Bar, Gay Bar…’ (if you do, your taste in music is as horrendous as mine!). The paper was fascinating and sort of heartbreaking and a little puzzling…. For a start the survey Marc and Steven did shows quite clearly that the Bar Standards Board statistics on sexuality at the Bar are hugely underestimating the number of LGBT+ barristers across the levels. That in itself means that there is something going on there because some are clearly happy to take part in surveys and interviews for research purposes but are not happy to declare their sexuality as part of the BSB statistics reporting. I wonder why that is. The paper’s sections on homophobia and on the performance of being out were fascinating. The data shows that homophobia is quite common but also that barristers play it down as nothing serious and no big deal. I’m really interested in this lack of advocating for themselves. Where does this come from. Is this a professional thing? Do they advocate for each other? This is fascinating and I’m not sure how we’d get to the bottom of this fully. I’ll ponder this.
I loved the notion that came up in one of the quotes about challenging or disrupting the ‘normal rule of engagements’. So men (mostly) finding it difficult to work out what exactly is going on when faced with a powerful lesbian QC, knowing something is slightly ‘off’ and not being able to work out what the rules of engagement now are. I like that. The section on performance of being out (or not) was depressing because there was lots of evidence of concealing sexuality and lying and because clearly there is a huge amount of the ‘bleached professional’ going on. Where barristers are ‘out’ they are often out in relation to their partners only – so they build their professional gay identity around having a same sex partner rather than on being gay – playing the ‘good gay’ game and performing heteronormativity albeit within a same sex relationship.
The second paper was by Ben Waters (Canterbury Christ Church) on ADR and Civil Justice. I also enjoyed this paper although it’s not really my thing and I was still reflecting on the previous one so drifted in and out.
Anyway it was a fabulous start to the conference. Next I was going to hear more legal education/legal profession stuff and listen to Nigel Duncan (City) on teaching legal ethics but over coffee I realised that I was really flagging. I decided to check into the accommodation and have a little power nap so that’s what I did. Then I headed back to the publisher exhibition area and spent a lovely half hour looking at books (sooooooooo many books, so little time to read….) and then people started filtering in from the sessions for the drinks reception. At the reception I met up with Richard C and we spent the evening talking about well being and anxiety in the legal academy and it was lovely. I left dinner when Richard did and then I went to bed early and fell asleep almost immediately. A good day and a sensible one! I have a blog post started over a year ago on conference self care and I think maybe now is a good time to look at that draft and finish it. I’ll see if I get to it today.
Today I gave a short presentation on weight discrimination in EU Law at the 6th Weight Stigma Conference held at Leeds Beckett University. Some times talking to mostly non-lawyers about law is fabulous, sometimes it’s not and today I found the room really hard to read. It was part of a long session following lunch so maybe people were experiencing their afternoon slump (I was) or maybe it had something to do with the presentation before mine. It was on UK (let’s ignore the fact that there’s no such thing as UK law really) anti-discrimination law based on weight. It was how I would imagine I would have been taught employment law if I had chosen to study it. It was so doctrinal/black letter in its approach that even I was bored and I get excited about anti-discrimination law! It was all definitions and them (the fat people who might want to claim) and us (the presumably not fat lawyers). It was mildly patronising – fat people should not fear discrimination and the law does protect in some circumstances. I’m not sure many who are fat would agree with that. But anyway, the atmosphere in the room was odd when I went up to give my presentation.
I introduced myself as a feminist EU Lawyer and sometimes more, sometimes less overweight marathon runner. There were some laughs. Phew. More laughs when I mentioned my drawer full of race t-shirts which don’t fit and which might just cover half a boob. Then down to the serious stuff – law is not going to solve that sort of discrimination. So very briefly my argument was:
There is no prohibition on weight discrimination in EU Law. Directive 2000/78 covers discrimination on a number of protected characteristics in the employment context. Disability is one of those protected characteristics. To gain protection (or more accurately redress) from the law, weight discrimination has to be brought within definitions of disability discrimination. English Law is firmly rooted in the medical model of disability – the problem is the impairment – whereas EU law offers some glimpse of hope because it includes the social model as outlined in the United Nations Convention on the Rights of Persons with Disability – the problem is social barriers. That glimmer of hope may have been extinguished with the CJEU’s decision in Kaltoft though which, in an obesity case, reaffirms the social model and then reverts back to a medical model in the key part of the decision. So in short – law is complex and tricky in this area.
I also think theoretically linking weight discrimination with disability discrimination is problematic. Of course some people with very high or very low weight can bring themselves within the definition of disability but many cannot. So lets think about my experience (in the absence of detailed research on this as yet, I am drawing on what I know from my experience!). Even if law applied (it doesn’t) it wouldn’t solve my problem of short half marathon and marathon cut off times and utterly ridiculous race shirt sizing (I have an XXL t-shirt which I literally cannot get over my shoulders). So the cut off time would indirectly discriminate against heavier runners – we are more likely to be slow, the lack of t-shirts that fit more than one boob is direct discrimination but there is no protected characteristic – I’m nowhere near the definition of disability in this context – not even on a fairly expansive definition of the social model. Maybe using the example of running is flippant, I’m not sure. I just know that exercise and sport are the things that have caused me personally the most anxiety in relation to my own weight. It’s where I know I experience discrimination and bias all the time.
So I don’t think the legal framework as it stands is helpful. I am also not sure that adding weight as a protective characteristic is all that helpful. Let’s start with the symbolic power of law – let’s not underestimate that. It is certainly important because it’s a clear statement that certain types of behaviours and actions are wrong. That can be really important for individuals. Law can be useful to help educate and raise awareness. Yes, I agree with all of that BUT let’s be really careful here. Law always always always has unintended consequences and often they can be incredibly harmful – we need to think about whether adding weight as a characteristic would cause a backlash, would it drive discrimination ‘underground’, make it less blatant and obvious and thus harder to tackle in other ways?
How would we define weight discrimination? How do we define weight? Can discrimination here be based on too low, too high or too average? How would this work in practice? Where would we draw the lines? What measure would we use – surely not BMI? Does it depend on context? I don’t know where to start with this! Every possible way I can think of can potentially have totally absurd consequences.
Law also has some inherent problems. It relies on discrimination happening. Law cannot prevent discrimination and we know from other protected grounds that the possibility of being taken to court is not, in practice, deterring people from discriminating at any significant rate. Law reduces us all to single characteristics. We can be fat, thin, white, black, female, male, gay, straight…. we cannot be a combination of those in law. It can’t actually cope with people. Law does not understand intersectionality and weight discrimination rarely, if ever, exists in isolation. And law cannot tackle stigma. Equal marriage hasn’t stopped homophobia – anti weight discrimination law won’t stop weight stigma or bias – we need other solutions.
There are practical problems with law too – bringing a case is horrendous. I could not, in good conscience, advise anyone to take a discrimination claim to court. It’s financially and emotionally draining – as in completely – until you have nothing left. It’s a significant undertaking and our legal system favours those with money and social capital, if you don’t have both along with an unlimited reserve of resilience, just don’t do it! Oh and of course, don’t even think about trying if you do not have absolute concrete proof. And that is going to be harder and harder to get. If weight becomes a protected characteristics then discrimination may become more subtle, less obvious, more like the discrimination based on race, gender or sexual orientation some of us have clearly experienced but would never be able to prove. We’d just know, everyone would just know but the law demands proof – even of the blatantly obvious.
So I think what I am saying is that law is part of the theoretical and symbolic answer but not really part of the practical solution.
In my presentation I used the language used in much of the literature I read – non-ideal weight. This caused a noticeable reaction in the presentation before mine where it was also used. I actually meant to start with explaining why/how I was using it but I got caught up in my race t-shirt story and forgot. I get how the language is problematic and I meant to say that legal literature appears to use it as a shorthand way to cover very low and very high weight and that it does not denote a value judgment. So just to be absolutely clear – I was using it as a sort of legal category or shorthand with no assigning of value intended at all. I guess though that the legal literature might want to re-think that language use and I will be for my written paper.
Anyway, watch this space – full paper coming in due course….
‘A parallel universe is a hypothetical self-contained reality co-existing with one’s own’ – says Wikipedia. Well today I found myself in one. The escalator from the ground floor to the basement of Kings Place in London is a portal between universes. That really is the only explanation for what happened today – at least the only one that makes any real sense.
I was at the Legal Cheek event: The Future of Legal Education and Training Conference. I was already irritated by the 8.30am start and the fact that all the breaks were termed ‘networking breaks’. I can’t get to London for an 8.30 networking breakfast. I got there and sat down just in time for the intro from Alex from Legal Cheek who really just plugged their exclusive survey saying that students are skeptical of the SQE and want more law tech included in their programmes. Well, from the brief bits he presented I doubt it’s that simple. Who exactly was asked what exactly and did they really understand what they were being asked? Some of the answers reported suggest that perhaps they did not. In fact a lot of what was said today suggests that the people who really ought to understand it (like the people invited to talk about it) don’t understand it. I could go through presentation by presentation and summarise it all for you but I value my mental health and my heart rate profile for today is quite erratic enough so let’s do this thematically. Here are the things that jumped out at me
- There were important voices missing. What we saw and heard today was a particular vision of law and lawyering which is not the law or the legal services that most of us (and certainly not most of the general public) engage in or come in contact with. It is rich mans law, it’s corporate, commercial and fundamentally about making already filthy rich clients more money. It is not about justice, it’s not about people, not about the social or the political, not about making the world a better place, not about harnessing the power (symbolic or otherwise) of law and lawyers to solve the big problems of the world. It was everything that makes people hate lawyers. I think it is what caused that flicker of disappointment in my mum’s face when I told her I wanted to study law and become a solicitor. It’s everything so many students think they should want even when they don’t.
- The SQE or at least the impact it is already having on universities and will certainly have on legal education is really poorly understood. Let me be clear. The SQE is an exam. It is not a programme, course or anything of that nature. It’s an exam. It therefore cannot deliver, in its own right, things like greater innovation, incorporation of tech, greater variety, cognitive diversity, any sort of diversity, thinking skills, improved written communication skills, resilience, creativity, project management and self management skills or commerciality. The only thing the SQE can do is test someones ability to pass the SQE. The preparation for the SQE might attempt to encourage some of those things but of course only if they are part of the SQE – which they are not. Many speakers made the assumption that legal knowledge would still be gained through law degrees and conversion courses – but why would that be the case? No law degree is required and many law schools will be under huge pressure to provide an SQE focused degree for fear of not recruiting students otherwise.
- There is a fundamental mismatch between what employers appear to want and say solicitors need (what they say they want – I’m not always convinced that they know what they mean when they say these things though) and what the SQE tests. There was much talk of creativity, thinking critically and differently, problem solving, managing yourself and learning how to fail and being more resilient. The SQE cannot test those things and other than for a small number of elite and very brave non-elite institutions the SQE means a move away from those things and towards learning to pass the multiple choice tests
- In spite of all the work done by the learned associations, all the SQE rhetoric is still operating on the assumption that what we do in universities is somehow not relevant to practice, can’t be quality assured and is not to be trusted. Varying pass rates, different curricula, different approaches and different assessments are presumed to mean that standards cannot be guaranteed. The problem about fitness to practice which is what regulation ought to be concerned is avoided and instead turned into a fundamental distrust of academics. But I agree with Richard Moorhead on this – the problem is more likely to be at the work place training end. The ridiculous consistency of people passing their training contracts is far more worrying than different institutions having different pass rates at LLB and LPC to me.
- There are apparently still people who think the SQE can deliver equality, diversity and inclusion benefits. There’s no evidence of this. If it reduced the cost of qualifying dramatically, maybe, but it can’t do this – you still need a degree, you’ll have to pay for the test, you’ll have to prepare for the test, you may fail the test and have to do it again… This cannot be significantly cheaper than degree plus LPC and funding option may disappear (for example the availability of loans for Masters degrees means that many LPCs are available in LLM versions so funding is available). The type of assessment has diversity implications and I just don’t see the SRA taking this seriously. They say they will fully test and analyse the statistics including by protected characteristics… but the fact still is that if you can pay to practice repeatedly then you are more likely to be successful. AND THAT IS NOT NEUTRAL
- Obviously we did not really talk about the ghettoisation of legal service provision and how the SQE might widen the gap between magic circle and high street. I can’t help thinking about the careers adviser I had at my school. When she saw my choice of A-levels and what I wanted to do with my life she said, well you won’t get into vet school – why not be a vet nurse? I said that I wanted to go to uni though and she asked me what for and why I’d want to waste my time doing a degree if I could get a job. I wonder what she will be telling kids at that school about becoming a solicitor, whether she understands the differences between solicitors and different firms and that the cheapest, most obvious route via an SQE ready degree might look great for these kids but is likely to funnel them into dead end paralegal jobs. I can’t help thinking about the girl at that same school who wanted to be a human rights lawyer but didn’t think she would be accepted anywhere because she came from the council estate down the road. Her teachers were telling her to stay local because she’d fit in better. I told her to be bold, that it would be awful at times, that it was a different world but that as much as I love working for the sort of institutions that I have worked for and now work for, they are sometimes just not good enough – she went to an elite uni- hated it but got to where she wanted to be. I can’t help thinking about the countless conversations with students about what they want to do, about repeatedly having to say – great – but you will have to do more and be better than those at Russel Group institutions, you will have to work harder and you will have to be lucky. And that’s without creating a real division in types of programmes. With the introduction of the SQE those who need the rigorous academic degrees most to help them to get to where they want to be are even less likely to access them. I feel utterly defeated by this.
- Of the lawyers or former lawyers who spoke, all totally normalised long hours. There was talk of 90 hour weeks and it was framed in terms of work ethic and being ambitious. I’m sorry but working 90 hours a week is not ambitious, it’s not having a good work ethic, it’s, pardon the language, fucking stupid! Maybe the perceived competency problem and consumer complaints are actually problems of exhaustion and not being able to function and of burn out and having been ground down. This is insanity! And no resilience is not about learning to deal with that shit. That’s not resilience. You have not failed if you can’t work those hours – you are human. Oh and maternity leave – it’s for baby things (what do I know!) and having coffee with your friends etc – it is not for re-training, setting up your business, working yourself to death… and if you take a part time job 4 days a week you don’t have the other 3 days to work on your business. Just stop. THIS IS NOT NORMAL.
- There are people who see the SQE as a massive opportunity and apparently think that it will free law schools from the shackles of regulation to be free to innovate. No no no just no. This is just so naive. The SQE will have a huge impact and makes it more difficult to innovate not easier. The SQE can actually only deliver on some of its promises if law schools take on the role of training students for it. The SRA is banking on this happening. (I say let them bank on it and screw them, let’s just collectively decide we’re not doing that and instead uphold the integrity and rigour of our programmes). So what happens to in depth teaching of legal subjects? Family Law? Social Welfare Law? International Law? Anything Socio-legal? The underlying assumption here is also really problematic. We’re not sitting around in our ivory towers happily doing what has always been done. We are constantly thinking about how we can change things, teach differently, engage our students, help them achieve those light bulb moments…
- Who chose who was invited to speak? Why weren’t the learned associations asked? Why not those who actually research these issues? With one or two notable exceptions is was an impressive line up of non-experts, people sort of wheeled out as representing something when in fact legal services weren’t represented well, law schools weren’t and in spite of Alex’s insistence that the student voice was really important to Legal Cheek there wasn’t a single student speaker.
I could probably go on and on and on but this gives you a flavour. I’m still a bit confused by it all. And I’m exhausted from trying to understand, from trying to work out what it is I’m missing, from forcing myself to have the confidence to know I’m right on this because the thing that perhaps took me by surprise the most is how easily my confidence in what I know and believe can be rocked by a bunch of men in suits spouting utter nonsense. After all, what could a girl from a small town in West Yorkshire possibly know about this? It took a two mile people and cyclist dodging run to clear my head and restore some sanity.
This conversation is going to continue and I’ll be back to participate but for now please do chat amongst yourselves while I re-charge.