The Law Society of England and Wales has an Intellectual Property Working Party (IPWP), of which IP Draughts is a member. After several years’ campaigning, the IPWP has recently been upgraded to become a committee of the Law Society. While this has some major advantages in terms of influence and access to Law Society resources, it also means that we are now subject to more Law Society rules.
Yesterday, IP Draughts received an email from the Law Society, telling him that he had to complete an online, interactive training programme in “equality and diversity”, taking about an hour, as a pre-condition of being allowed to serve on this new committee.
IP Draughts took the programme yesterday evening. It was slightly more entertaining than he had feared. Students were required to match nationalities with characteristics, to demonstrate lazy prejudice. He enjoyed pairing up Scotsmen with the characteristic “sunny personality”, and Italians with the characteristic “coldly logical”. This wasn’t playing the game, though. More seriously, he got a couple of questions wrong in the online exam at the end of the course. Note to self: peer bullying is harrassment and not victimisation for the purposes of equality legislation. Giving an employee an unfair assessment, with the result that their performance deteriorates, is a self-fulfilling prophecy. No marks are given for calling this a vicious circle.
The vocab of the equality community is tiresome; the underlying objective is worthwhile. As a quasi-public body, the Law Society feels it has to be at the cutting edge of best practice in this field. All solicitors’ firms in England and Wales now have to conduct an annual survey of staff, to determine how equal and diverse the firm is. The most distinctive aspect of IP Draughts’ firm seems to be the number of its lawyers, IP Draughts included, who were the first generation of their family to attend university. This is not a measure of diversity that is commonly discussed. It seems to be easier to make assumptions about a professional firm based on race or gender, or whether its members attended private schools.
The equality procedures that some organisations follow, with the best of intentions, can seem like mindless bureacracy. When the IPWP recruited new members a year or so ago, the names on the application forms were removed by Law Society officials, presumably so that the interview panel could not be adversely influenced by a foreign-sounding name. However, this had the ludicrous result that with one applicant, who was attending the interview by phone, we had to call a mobile phone number without knowing who to ask for. It took a while for us to establish that we had the right person (“Hello? Hello? Who are you? Who are you? etc). Even for applicants who attended the interview in person (in a basement room of the Law Society that had once been a prison cell – wonderful atmosphere!), it was ridiculous having all the data about them and their career other than their name. The sense of the ridiculous was compounded when we later discovered that the Law Society did not follow this procedure when recruiting its own staff.
Coming back to the online course, some of its teaching should be obvious to anyone who is experienced in contract drafting and negotiation. Saying that someone “is an invalid” carries a loaded meaning that is absent in the phrase “has a disability”. The loaded meaning is in two parts: first, it confers a status on the person (“is”) rather than just describing an attribute (“has”); and secondly, it uses a word – invalid – that has secondary and pejorative meanings. If readers will forgive an earthy analogy from the world of IP licensing, in negotiations it is usually more productive to say that a comment is bullshit than to call the person who made the comment a bullshitter.
Digressing slightly, in his childhood IP Draughts was puzzled and slightly shocked by a line from the classic Cole Porter song, “Let’s do it – let’s fall in love”. The line went “folks in Siam do it, think of Siamese twins”. Cole Porter’s acidic wit took few hostages. Later in the same song, after exhausting nationalities, he turns to different types of fish. Only recently has IP Draughts come to understand the line “why ask if shad do it, waiter bring me shad roe”. Shad is not often on the menu in English restaurants. Nor are its eggs.
IP Draughts’ sense is that the people who practise IP law in the UK are not representative of the population as a whole, but this is not due to any direct discrimination against people who have what the legislation calls “protected characteristics” – race, gender, age, etc. Perhaps there was a clubby, public (ie private) school atmosphere a couple of generations ago, but that is no longer the case, at least in IP Draughts’ experience. Perhaps the influx of scientists into the profession has helped to make it more diverse. The distinctive character of the IP profession may be based, at least in part, on the expectation of very high educational qualifications among its practitioners, which tends to favour some groups over others. More could be done to encourage disadvantaged groups to aspire to become commercial lawyers while still at school. Some of the largest City firms are involved in initiatives in this area.
Fortunately, IP Draughts’ main prejudices (we all have them, what counts is how we deal with them) are not protected characteristics, at least for now. Hopefully, the time will never come when it is illegal to discriminate against someone who “doesn’t give a shit”, and in favour of someone who tries their best.