Women Lawyers: Equals at the Bar?

5 October 2017

Women Lawyers: Equals at the Bar?

PROFESSOR JO DELAHUNTY QC

 

Question: The times they are a-changing - or are they? Do female lawyers need to be Superwomen to survive? Is motherhood welcomed, tolerated or rejected at the Bar? What makes for a successful advocate? Is gender relevant? What about career progression? Are women fairly represented on the Bench and in its most senior courts? Is there practice or appointment discrimination and if so what is being done about it?

The reaction on social media to this lecture has been illuminating: within seconds of the tweet out of this lecture I received these comments:

Twitter: ‘inequality is far more about class, uni, school than gender’

LinkedIn: ‘what about black and ethnic minorities’ lawyers: don’t see many at the top’

Gender, race, class and education all play a part in career opportunities and career progression. I can only speak from my perspective, it would be arrogant and insensitive to speak of the barriers to advancement on the grounds of race or disability when I am an outsider on those issues. This lecture shines the spotlight on gender issues at the Bar and draws on my experience in Family Law.

I deliver this lecture coming from a background as a child of a single parent from a white working class home. I was the first person in my family to stay in education after the age of 16. I went to a comprehensive state school. My careers advisor suggested I was bright enough to apply to work in a bank but not front of house as I had an ‘attitude’. She didn’t suggest I go to university.

I went to Oxford University to read law: one of only two girls from my school to ever do so. We were their first. St Anne’s College, Oxford lived up to its reputation of giving opportunities to those from state schools that other colleges might deny.

But for my mother’s own initiative in looking up the CV’s of those who were successful in the solicitor’s office she worked in, identifying the common factor of Oxbridge (and male), researching the colleges and driving me down to Oxford, tipping me out at St Anne’s to go and ask for an interview, I would never had contemplated Oxford as a place for me. But for the porter ringing up the Principal and asking if she had time to see a young girl who had driven 50 miles to see her. But for the fact that that Principal said yes and opened my eyes to my potential and a place to fulfil it, I would not have come back and asked my school to enquire about the application exam and enter me for it. I slipped in through an interview process in conjunction with passing the internal Oxford examination system for 4th term entry students (i.e.: pre-A level results, later abolished as it gave an unfair advantage to public school students who received specialist tutoring for the Oxbridge exam). Oxford opened up a world of knowledge and opportunity that, given my class and background, might otherwise have remained closed to me.

After graduating, and a year at Bar School, I was called to the Bar.

A hundred years ago I wouldn’t have had that option.

‘In point of intelligence and education and competency’, the Court of Appeal acknowledged that Miss Bebb was ‘probably, far better than’ many male candidates but, because she was a woman, in 1913 she could not be admitted to the Law Society (Bebb v The Law Society [1914] 1 Ch 286).

The Sex Disqualification (Removal) Act received Royal Assent, and became law, on 23 December 1919.

The Sex Disqualification (Removal) Act 1919 removed all legal barriers to women, including married women, working as lawyers. It meant that in England and Wales women wishing to become solicitors could apply to the Law Society and women wishing to become barristers could apply to one of the four Inns of Court (Lincoln’s

Inn, Middle Temple, Inner Temple or Gray’s Inn) without fear of rejection based solely on the ground of their sex1.

1 For those of you who haven’t heard of it I urge you to seek out and follow The First 100 Years project supported by the Law Society and the Bar Council, charting the history of women in law since 1919. To find out more about the project please click here.

The project’s legacy will be the creation for the first time of positive role models for women in law, a deep understanding of the past combined with a celebration of today, a cross-sector platform for intelligent debate and change and a valuable archive accessible to everyone from law students to High Court Judges. Our aim is to ensure a strong and equal future for all women in the legal profession’

2 Biennial survey 2013, p.22

 

Where are we now? A Snapshot

‘Barrister’ is a gender-neutral word, but the expectations of women’s ‘proper’ appearance and how they should dress for court were anything but balanced until 1995. I was called in 1986. For nearly 10 years I was compelled to wear a dress or skirt in court and was forbidden to wear a trouser suit. Had I or others sought to do so, we ran the risk of being denied the chance to do our job. Had we attended court in a trouser suit and begun to address the court, your appearance might be short-lived:

- Judge “I can’t hear you, Miss…”

- The female barrister speaks louder, there is nothing quiet about her voice, and the Judge repeats the phrase….

- It’s not that he can’t hear her, he won’t hear her because of ‘inappropriate’ court attire.

 

It took a sustained campaign from the Association of Women Lawyers for that outmoded and frankly ridiculous position to change: it was not until the Bar Council received permission from The Lord Chief Justice in May 1995 that women were ‘permitted’ to wear trousers as court wear.

Alison Russell QC (as she then was) was appointed as a judge of the High Court of Justice on 13 January 2014, assigned to the Family Division. She became the first judge to be formally addressed as "Ms Justice”: it made the news. I’d have preferred it if the fact that she was not an Oxbridge product, but rather that her alma mater was South Bank Polytechnic, had made it into print with such prominence.

Baroness Brenda Hale: the first female President of the most senior court in the land: the Supreme Court (until 2017 she was the only woman at this level). Baroness Hale used her profile to make a point, saying:’ While I of course look forward to working alongside all my colleagues, it is a particular pleasure for me to be taking up the post at the same time as we welcome only the second ever woman to sit on the UK’s top appeal court.’

Lady Justice Black joined her in July 2017. They will sit together for the first time in their respective roles on 4th October. It is perhaps unfortunate that the official court listing identified her therein as “Lord Hale’.

I came to the Bar as a left wing feminist lawyer radicalised by the Thatcher years. I wanted to make a difference to the society I was part of. I wanted to repay the debt I thought I owed to it as a child of the comprehensive system. Was I exceptional in that aspiration? No.

 

Accessibility and The Bar

Schooling: Female barristers are significantly more likely to have attended state schools than male (65% compared with 51% of men) and this is the key variable correlated with type of secondary schooling.2.

 

Motivation - Why come to the Bar?

Generally: The Bar as a career: - women, across all areas of practice, are more likely to say that flexible working/availability of part-time working was an important reason to them (6% compared with 1% of men)3.

3 2013Bar Council Biennial survey

For me it was that I knew I was, quite simply, unemployable. I wanted to control my work load, what I did, when I did it, how I did it. I did not want a 9-5 job and had never easily accepted instruction on what to do. I had never known a barrister. The Bar was an alien (and intimidating world) for my family. My mum was terrified that I would have to count every penny for my adult life, just as she had done. I had no real idea what the challenges were in the profession I aspired to join as a young woman with no private income. But: I knew I was bright, I thrived on competition, I was a deadline junkie, I was an independent worker, I wanted to make a difference to my world, I had never felt inferior to a man and had the confidence, borne largely of ignorance, that I was suited to this career. I simply didn’t contemplate not succeeding.

Knowing nothing of the right way to do things, but believing that ‘Stage 1’ was getting a pupillage (because without that under my belt I’d have to be sensible and get a ‘proper job’ as my mum wanted me to do), whilst still in my second year at St Anne’s College, Oxford I wrote off to every chambers that offered a pupillage with funding.

I say “Stage 1”: that showed my lack of knowledge of the career path I wanted to tread. In fact, Stage 1 was getting my law degree, Stage 2 was getting into Bar School, and Stage 3 was passing the Bar Finals. Pupillage would actually be Stage 4, at least 2 years hence. But, probably because I knew no better, I went to my interviews to London with confidence, told them what I wanted and why, and that without their money I could not come to the Bar. Before I had begun my final year, I had been offered a pupillage for 12 months with financial support.

Admittedly it was in a planning set but it was a foot in the door and I would be paid whilst I learnt my craft. It was 1983 and Thatcher had just won a landslide victory over Michael Foot (three new members of Parliament that year were Tony Blair for Sedgefield, Gordon Brown for Dunfermline and Jeremy Corbyn for Islington North). 1984. Turbulent times. The IRA bombed a hotel in Brighton hosting the Conservatives conference. The Battle of Orgreave took place, the Miners’ strike started and continued bitterly into 1985. 1985. I was at Bar School. We had the Brixton riots started by the shooting of Cherry Groce. I was called to the Bar in 1986, the time of the Wapping dispute. I wanted to practice in employment law and civil liberties. I wanted to act for the individual in conflict with the state. Passionately.

That was my motivation: how does it compare to aspiring barristers three decades later?

 

Motivation within Different Areas of Practice

Within the main areas of practice there are gender differences in motivation:

Crime: men working at the criminal Bar are more likely to indicate that the work offered a ‘challenge’ (29% compared with 19% of female barristers): women working at the criminal Bar were more inclined to indicate that ‘making a difference to society’ was one of the most important reasons to them in choosing their area of practice (53% compared with 43% of men).

In family practice, men were more likely to indicate that the ‘availability of opportunities/work’ was an important reason for them choosing their area of practice (58% compared with 41% of women).

Among barristers working in commercial and chancery practice, men are more likely to mention the earning potential of the work (35% compared with 20% of women).

These statistics, important though they are, fail to grapple with the central issue of concern that I see as a barrier to entering my profession. The cost and risk. Now one doesn’t get a grant to help to go to university. You have to pay via a loan. You begin your working life as an adult with debt.

Students simply can’t afford to run the financial risk of entering a self-employed, financially precarious, profession when they have racked up so much university student debt over the past 3-4 years, would have yet to invest in a year’s education at Bar School, followed by the hunt for a pupillage, thence a tenancy before they are ‘established’ enough to even think of building up a paying practice, and a paying practice takes time to develop and fees are notoriously late in payment. So, it could be 8-10 years from the start of university until the first meaningful fees are paid. I started university in 1982 and didn’t receive any regular income until the early 1990s.

That financial barrier means that the pool of people entering our profession will be less representative of the society they will represent in court, and given the judges are predominantly drawn from the ranks of the Bar, this financial barrier to our profession will widen the social gulf between the judiciary and the society it seeks to serve.

 

Admission Rates to The Bar

Improvements since my time:

• Fair selection procedures for pupils and tenants (increased number of women entering the profession to equal that of men)4

• Equality Code – vast majority of chambers have an equality policy in place and there is increased awareness5 (although see below the disparity in compliance)

• Clear movement towards gender equality at Call to the Bar (approx. 50-50 balance)6

4 Bar Standards Board, Women at the Bar, pp30-31

5 Bar Standards Board, Women at the Bar, pp32-35

6 Bar Council, Momentum measures: creating a diverse profession, Summary of Findings, 2015 http://www.barcouncil.org.uk/media/378213/bar_council_momentum_measures_creating_a_diverse_profession_summary_report_july_2015.pdf p1

7 Bar Standards Board, Report on the 2013/14 Supervision Exercise on the Equality Rules of the BSB Handbook, https://www.barstandardsboard.org.uk/about-bar-standards-board/equality-and-diversity/monitoring-implementation-of-the-equality-rules p.9

 

The First Steps: How Female Friendly?

Chambers compliance with equality policies

The Equality Rules of the BSB Handbook came into force on 1 September 2012. The Rules apply to self-employed barristers in multi-tenant chambers and include requirements to:

• Produce an equality policy and action plan

• Appoint an equality and diversity officer and a diversity data officer

• Ensure chambers' selection panels are trained in fair recruitment

• Conduct diversity monitoring and analyse the data and

• Produce anti-harassment, flexible working, parental leave and reasonable adjustments policies

 

The Bar Standards Board 2013/14 Report indicated that compliance with the equality rules varied depending on the area under consideration. For example, the compliance rates for the “appointment of officers” requirements were very high (100%). However, in relation to the more complex rules, such as the requirements to produce a reasonable adjustments and flexible working policy, compliance rates were much lower. The rule with the lowest compliance rate was the action plan rule with which only 50% of chambers were compliant.7

The follow up report of 2016 found that:

There is little evidence of widespread non-compliance with the requirement to have policies in place, and policies are generally rated positively. However, awareness of some policies is low, and the findings suggest that in many cases the implementation of the policies falls short of what might be expected. The findings also suggest that in some areas the existence of formal policies does not fully address the structural or attitudinal barriers faced by women barristers.8

8 Women at the Bar, p.57

9 http://www.barcouncil.org.uk/media/427426/career_breaks_advice_pack_march_2016.pdf

10 http://www.barcouncil.org.uk/for-the-bar/professional-practice-and-ethics/equality-anddiversity-guidance/fair-recruitment-guide/

11http://www.barcouncil.org.uk/media/404121/bar_council_tips__advice_and_resources_family_career_breaks_for_parents_and_carers_2016.pdf

12 http://www.barcouncil.org.uk/media/485513/bar_council_flexible_working_guide_july_2016.pdf

13 http://www.barcouncil.org.uk/media/323036/bar_council_ed_guides_parental_leave_policies_2015.pdf

14 http://www.barcouncil.org.uk/media/409759/dealing_with_sexual_harassment_in_chambers_december_2015.pdf

15 http://www.barcouncil.org.uk/media/260986/subconscious_or_unconscious_bias_e_d_guidance_reviewed_2016.pdf 6 10 16

 

Compliance with all the Equality Rules of the BSB Handbook

Fully compliant

Compliant but needs improvement

Non-compliant

 

Bar Council Guidance

The Bar Council has guidance on:

• career breaks9

• fair recruitment10

• family career breaks11

• flexible working12

• parental leave13

• sexual harassment: information for Chambers14

• subconscious bias15

 

Hence, there are guidelines and that represent good intent and good practice but a barristers’ chambers is not an employer: it is a building that hosts a number of self-employed individuals who cluster together for their individual and collective good: each set has its own character and guards its management privacy. The visibility of its working practices outside of its inner workings is low.

 

Issues of Concern in Practice?

Harassment – 2 in 5 female barristers surveyed by BSB in 2016 suffered harassment: a percentage indicating no visible change over the past 15 years. Allegations were not reported because of concern over impact on career, cultural attitude of chambers to harassment.16

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16 Bar Standards Board, Women at the Bar, pp36-40

17 Bar Council, Snapshot: The Experience of Self-Employed Women at the Bar, 2014 http://www.barcouncil.org.uk/media/379529/snapshot_-_the_experience_of_self_employed_women_at_the_bar.pdf, p.7

18 Interestingly Gender differences are much stronger at the self-employed Bar, where 21 per cent of women report personal experiences compared with seven per cent of men; at the employed bar the corresponding figures are 24 per cent and 21 per cent respectively.18

19 Bar Standards Board, Women at the Bar, pp12 - 15

20 https://www.barstandardsboard.org.uk/about-bar-standards-board/equality-and-diversity/equality-and-diversity-rules-of-the-bsb-handbook/

21 Bar Standards Board, Women at the Bar, pp41

Locker room Banter - A Bar Council report from 2014 identified continuing “inappropriate banter” and recognised the need to change generational/social attitudes but acknowledged that is happening slowly17.

Bullying - Female barristers are significantly more likely than their male colleagues to report having experienced bullying, harassment or discrimination, both overall and within each practice area. Across all respondents, 22 per cent of women report personal experiences compared with nine per cent for men. Around a quarter of female barristers in the criminal, civil and international/EU/other practice areas report personal experiences of bullying, harassment or discrimination18.

Like many women entering my profession in the late 1980’s, I suffered sexual harassment and didn’t make a formal complaint: booked into a double hotel room when working out of London with my pupil supervisor without my knowledge or consent (I didn’t enter), groping, propositions. Locker room banter in chambers and with clients as often as in the robing room: when chair space was limited in one conference a client offered me his knee to me to sit on and the only reaction was laughter within the room, including from my pupil supervisor. I’d like to think things have changed. But some attitudes take time and for older members of the Bar society has moved on quicker than their expectations of women have: shortly after being made a Bencher in 2011, I entered The Princes Room in Middle Temple and, dressed as I was dressed in a white shirt and black skirt, was asked by a rather elderly gentlemen when he might expect his tea. I had been mistaken for a member of staff.

 

Progression - Barriers to Advancement?

Monitoring of work allocation in chambers is low and/or lack of transparency about how this is done19

Bar Standard Board (BSB) Equality Rules 20give detailed guidance on monitoring work allocation in particular to pupils, junior tenants and those returning from parental leave considering any patterns of earnings, quantity of work and sources of work. Chambers need to:

• Record whether work was marked for a particular barrister/pupil or allocated, who allocated to, and who allocated it.

• Identify disparities – are men earning more than women of same call, are specific cases being allocated to men/women

Nonetheless, The Women at the Bar Report cites internal discrimination from clerks or in the allocation of work more generally and unwillingness to report discrimination.21

Locker room chat: Most courts, such as Snaresbrook and Blackfriars, have communal robing rooms, but Southwark, the Old Bailey and Inner London (in Elephant and Castle) separate the sexes. Robing rooms are used most by criminal practitioners, who are in court more than civil law barristers, and who are required to wear formal court dress and to ‘robe up’. At Southwark, women advocates had two small rooms at opposite ends of a corridor, while the men had a much bigger central space, so if a male silk was defending alongside a female junior barrister, she might miss out on the discussions with the prosecution. Robing rooms offer a refuge from the public and clients and are often a place where a case is discussed frankly and freely and negotiations take place. Senior Circuit Judge HHJ Taylor at Southwark Crown Court intervened to remove the gender barrier: what was once the men-only premium space beside the courtroom is now unisex.

HHJ Taylor was interviewed by the Evening Standard in August 2017, when the intervention came to light 22 and explained that she had three reasons for her decision.

22 https://www.standard.co.uk/lifestyle/london-life/secrets-of-the-locker-room-why-women-lawyers-fought-for-the-right-to-use-maleonly-robing-areas-in-a3617206.html

23 Biennial survey, p.88

24 The Bar Council, Plans to extend court room sittings a blow for women at the Bar, 28 March 2017 http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2017/march/plans-to-extend-court-room-sittings-a-blow-for-women-at-the-bar/

25 Biennial survey, p.14

Firstly, the male robing room had better facilities including tables and chairs for working. It was unfair to the female barristers to be in cramped rooms. Secondly, there are now far more female barristers involved in fraud cases. Not being in the same robing room meant that they were sometimes excluded from conversations prior to Court which took place between the male barristers. Some said that as a result agreements were made before they were consulted. Thirdly, [it] reinforces that gender should play no part in the role or status of a barrister.

HHJ Taylor added that female colleagues had contacted her applauding the change, and no man had yet complained.

Flexible working – policies are in place in chambers for it to happen but some female barristers reported surprisingly that flexible/ part time working has a negative impact on work allocation and/or career progression.

2013 biennial survey [in response to flexible working]

‘The only variables that show some significant correlation are gender and caring responsibilities, especially childcare. When considering whether or not the Bar is a family friendly profession in which to work women are more likely to ‘strongly disagree’ with the statement than men (25% compared with 14% of men). A similar difference is also apparent when considering whether it is ‘not’ difficult working part-time as a barrister.’ 23

The Bar Council recently spoke out against HMCTS pilot plans to lengthen court room sittings by identifying that they would disproportionately impact upon parent barristers (especially women).24 Lawyers across the profession joined the Bar Council, Law Society and Criminal Bar Association to oppose the plans, which involved "flexible sittings", starting at 8am at some courts and ending at 8pm at others.

The plans to extend court opening hours had been put forward by HMCTS to increase the rate at which cases are dealt with. But Acland-Hood announced on 21.9.17

"The strong views expressed reinforce the need for us to proceed on a clear evidence base. …."It's for that reason that … we have agreed to delay the start of these pilots until we are satisfied that we have a robust, independent evaluation system in place; and until we have taken more time to engage and discuss the pilots, picking up on comments made on how they could be improved."

Andrew Langdon, QC, chairman of the Bar Council, welcomed the announcement.

"Whilst plans for flexible courts have not been dropped, it is encouraging to see HMCTS not only take on board the Bar Council's concerns about the plans, which include the impact they will have on barristers with child and other care responsibilities, but they also commit to ensuring robust evaluation measures are in place before proceeding with the pilot.

Why this reaction from the Bar when ‘flexibility’ was one of the reason cited by aspiring barrister entering the profession? Perhaps because, in reality, being self-employed means that saying ‘no’ to a brief is a luxury few can afford and those who have to say no, because they have to look after their child, will do so only because they have no option. Not everyone has a nanny or partner to take over child care outside of the working day.

The Barristers Working Lives survey found Part-time working is not prevalent, at only 13 per cent overall. One in five female barristers works part-time, rising to 46 per cent of those with main responsibility for childcare.25

Maternity/parental leave - many female barristers report that taking maternity leave has a negative impact on work allocation, career progression and/or income.26 Nearly half (48%) of all cases, respondents reported that

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26 Women at the Bar, pp23-29

27 Biennial survey, p.49

28 Lady Hale, Equality in Judiciary, p.12 https://www.supremecourt.uk/docs/speech-130221.pdf

29 Bar Council, Momentum measures: creating a diverse profession, Summary of Findings, 2015 http://www.barcouncil.org.uk/media/378213/bar_council_momentum_measures_creating_a_diverse_profession_summary_report_j uly_2015.pdf, p1 they were treated less favourably because of their gender, in 12 per cent of cases it was linked to pregnancy/maternity...”

Baroness Hale was, unsurprisingly, already ahead of the curve on this in 2013 –

‘I was once foolish enough to say that the Bar was one of the most family unfriendly professions in the world. I was properly taken to task by a successful woman silk, who complained that I would put able young women off coming to the Bar by such accusations. Of course, it is possible to “have it all” if you have the sort of practice which pays so much for individual cases that you can afford to pick and choose between them, to live close to your work, to employ a nanny and other help in the house, to send the children away to boarding school and so on. It also helps to have a supportive partner. But that is not the life which I experienced at the common-law Bar in the 1970s and I do not believe that it is the life that many young women experience at the Bar these days. If it was there would not be such a steady rate of attrition. If the Bar were really serious about helping young women to stay in independent practice, it would have done more to support the project to set up a Bar nursery.28

Lady Justice Heather Hallett, a senior judge in the Court of Appeal, echoed the point about child care responsibilities impacting on women’s practice options in the talk she gave to The Middle Temple Women’s Forum in 2013

Both judges were on point. On 16 April 2013 The Bar Council, which represents barristers in England and Wales, launched the 'Bar Nursery at Smithfield House', a central London childcare facility in partnership with Smithfield House Children's Nursery. It was intended to offer flexible childcare facilities near the Inns of Court, with special rates for all members of the Bar, as well as chambers staff and Bar Council employees with longer opening hours designed to help those whose practice involves extensive travel to appear in courts all over the country.

The initiative was welcomed by Maura McGowan QC, (then) Chairman of the Bar:

"The Bar Council is committed to supporting parents and ensuring that the profession retains its best people. Owing to the nature of work at the Bar, many parents find it exceptionally difficult to juggle childcare responsibilities with their ever-changing work schedule, particularly those barristers who regularly appear in court, which can mean travelling to different towns every day.

It is important that members of the profession are not discouraged from starting a family because of their work, which could have a detrimental effect particularly on the number of women choosing a career at the Bar, and could see talented practitioners leaving the self-employed Bar for a more stable working life in employed practice, or even another profession.”

With that in mind it was disappointing to learn from Smithfield on 2.10.17 that the partnership has now ceased

Retention at The Bar

Large numbers of women are leaving the profession.

The Bar Council Report of 2015 found that women have a lower propensity to move from Call to Practice and higher attrition rate once in practice29. They reported that:

It remains the case that there is a significant reduction in numbers of women practising in the Bar between the Middle and Senior Junior bands (8 – 21 years Call). Furthermore, there is a similarly steep reduction between the Senior Junior and senior bands (from 40% to 23% in 2013, again more or less the same as

27

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reported in 2011). This gender profile results from a combination of increasing numbers of women entering the profession over the last 20 or more years, and high numbers of women who are leaving, perhaps to take career breaks, with few returning to the Bar once their career break is finished.

30 Biennial survey, p20

31 Women at the Bar, p5

32 Biennial survey 2013, p14

33 Bar Council, Change of Status Report, January 2013 – December 2014, http://www.barcouncil.org.uk/media/344668/barristers_changing_status_summary_report_jan_2013_to_dec_2014.pdf

34 Biennial survey p82

35 Women at the Bar, P5

Women are more likely to leave the profession if they experienced discrimination or harassment, if they are BAME, or if they have primary caring responsibilities for children.31

The Barristers Working Lives Report found that Female barristers are more likely to be single or divorced than their male counterparts, particularly those aged 45 and over (38% compared with 21% of men). Women with children are far more likely to take the main responsibility for childcare (57%, compared with 4% of male barristers), although there has been some progress since 2011 towards equal sharing of childcare.32

This is highly relevant to retention of women at the Bar as the Bar Council Report 2014 found the main reasons for women leaving were income (current and future), impact of criminal legal aid cuts, child caring responsibilities (mainly those aged 35-44), and an increase in expected pro bono work.33

With more female barristers working in the publicly funded Bar (just 26% of women are not reliant at all on public funding compared with 42% of men) female barristers are being affected more by the reduction in public funding than men.34

Note: the survey that informed these statistics was undertaken before the impact of legal aid cuts was truly felt by the public and legal aid practitioners: the gulf may have widened in the two years since the survey was undertaken.

Findings of the Women at the Bar Report 2016 were that in order to improve the retention of women at the Bar there is the need to:

• address and change elements of the culture of the Bar and legal profession

• improve compliance with and awareness of the Equality Rules, and

• provide more support, in particular around childcare responsibilities and flexible working.35

 

Some Statistics

(Please see appendix : the figures below are an amalgamated summary and the detail from which they derive is in the appendix)

• 50:50 (male: female) split of those studying the BPTC and the grades achieved 2012 - 2014

• 50:50 (male: female) split of those Called to the Bar 2010/11 – 2014/15

• 50:50 (male: female) split of those attaining pupillage 2009/10-2013/14

 

The start of the gender divide:

• Self-employed barristers 2010-2014 - 32% female

• Employed barristers 2010 – 2014 – 46% female

• 5 years of Call 2010 – 2014 - 45% female

• 15+ years of Call 2015 - 29% female

 

Silk

• Queen’s Counsel awards 2016/17 – 27% female36

 

30

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The judiciary in 2015-16:

o Deputy District Judges (Mag)- 30% female (31)

o District Judge (Mag) - 33% female (44)

o Deputy District Judge (County) 36% female (231)

o District Judges (County) 35% female (430)

o Recorders - 19% female (203)

o Circuit Judges - 25% female (160)

o Deputy Masters, Deputy Registrars, Deputy Costs Judges and Deputy District Judge (PRFD) - 35% female (19)

o Masters, Registrars, Costs Judges and District Judges (Principal Registry of the Family Division) - 27% female (10)

o Judge Advocates, Deputy Judge Advocates - 10% female (1)

o High Court Judges- 20% female (22)

o Lords Justices of Appeal 20% female (8)

o Supreme court -1

o Heads of Division – 0

 

2017: at least we now have Baroness Hale and Lady Justice Black in the Supreme Court and Baroness Hale makes history as its first female President.

What is the story behind the numbers?

Progression at the Bar?

While the ratio of women to men at both pupillage and tenancy was 51% to 49%, men made up 87% of self-employed QCs.

The BSB Equality and Diversity Committee (2016) highlighted the rate of access and progression of women in the profession as a concern, with statistics indicating that currently only 13 per cent of Queen’s Counsel (QC) are female (considerably lower than the proportion of women across the profession as a whole).

Additionally, statistics from recent QC appointments indicate that even though women applicants are more likely to be successful in the competition, the number of female applicants remain proportionately low. A 2016 report by The Bar Council highlighted that if current trends continue, the proportion of women QCs is unlikely to ever mirror the number of women entering the profession.37

37 Women at the Bar, P2

38 Kennedy, H, Women and British Justice (1992) pp44-45

39 Ibid, p58

Helena Kennedy QC, Baroness of The Shaws wrote in 1992:

“Many of the problems women and others have faced in the legal profession are similar to those encountered in any occupation. The law is not the only profession in which people get jobs through having the right social connections, or knowing the right people. Nor is it the only activity in which style, appearance, demeanour and self-confidence play a large part in success. However, as well as the traditional legal and cultural handicaps, there are also structural problems within the profession itself. Women have to overcome the handicaps created by the already established tracks which divide the profession into elite and non-elite areas, and find themselves, as I did, more readily functioning in areas that are undeservedly less prestigious, such as family law, child-care and low-level crime”.38

“As in other professions, there is a glass ceiling for women, which means that getting to the top floor involves a detour out through the window and up the drainpipe, rather than a direct route along the charted corridors of power”.39

Too few female barristers applying for silk: why?

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This could cross refer back to the issues of financial security and child caring obligations (and now elder care) that are highlighted in the retention statistics as an issue of concern. It could reflect a lack of confidence. It could reflect a lack of encouragement. It could reflect the fact that woman take longer career breaks to have and rear children, or to undertake care tasks for family members, and that makes their work less visible to judges and with longer gaps between significant cases.

The BSB is aware of the silk gender imbalance and has sought to understand why

‘Women may face systemic disadvantage in silk applications because of their secondary school, university and area of practice.

Using multiple regression statistical analysis, the following are the key variables linked to Silk status.

First, whether or not this group of barristers studied at Oxbridge: 57 per cent of barristers who attended Oxbridge are QCs and a third (32%) have not applied compared with equivalent figures for other universities of 24 per cent and 64 per cent respectively.

Second: degree class is also a key factor correlated with both propensity to apply for Silk and success when applying... More than two thirds (70%) of senior practitioners based in chambers holding a first-class degree are QCs and only a fifth (22%) have not applied for Silk. This compares to 40 per cent of the 2:1 group being QCs and 23 per cent of those with 2:2s and below. These differences apply for all areas of practice at the ‘senior’ self-employed bar.

Third: Type of secondary schooling is also correlated with QC status. Four in ten (43%) of those who went to fee paying secondary schools are QCs and 44 per cent did not apply compared with 28 per cent of state school alumni being QCs and 63 per cent having not applied.

Looking at the compounding effects of these variables, three quarters (78%) of ‘senior practitioners’ in chambers, who went to fee paying secondary schools, Oxbridge and achieved first class degrees, are QCs (n=32).40

40 Biennial survey, p.34

41 http://www.theworkfoundation.com/wp-content/uploads/2017/09/421_Balancing-the-scales.pdf

This was in 2013 and the issue has not righted itself in the last 4 years

The body that oversees QC appointments commissioned research into why this might be. The research was undertaken by The Work Foundation’ and the report by Zofia Bajorek, Ala’a Shehabi and Jenna Kerns, was published in September 2017 41 Entitled ‘Balancing the scales: A study into the under-application by women for appointment as Queen’s Counsel.

We learn from the foreword to the report that

‘Recent surveys by the Bar Standards Board (BSB) (2016) have explored the experience of women barristers in relation to the Equality Standards that were introduced to address gender inequality in the profession. Although surveys have found that there had been some improvements within the profession, institutional barriers were still widely experienced by women. The BSB Equality and Diversity Committee (2016) highlighted the rate of access and progression of women in the profession as a concern, with statistics indicating that currently only 13 per cent of Queen’s Counsel (QC) are female (considerably lower than the proportion of women across the profession as a whole). Additionally, statistics from recent QC appointments indicate that even though women applicants are more likely to be successful in the competition, the number of female applicants remain proportionately low. A report by The Bar Council highlighted that if current trends continue, the proportion of women QCs is unlikely to ever mirror the number of women entering the profession.

The purpose of this study was to gain an in-depth understanding as to why this under-application of women exists, and what recommendations could be made as a response to mitigate it.

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The study was focussed on two main questions:

1. Why are a far lower proportion of eligible women than eligible men applying for appointment as QC?

2. What options are open to the QCA and the professional bodies in response to this?’

Russell Willman, chief executive of QC Appointments (QCA), was interviewed by Dan Bindman of Legal Futures on 25th September 201742. He volunteered that the point of the research was to see if there were “unnecessary or improper” barriers preventing women potential women candidates for QC from applying that could be removed – looking at the likely pool of barristers between 15 and 25 years’ post-qualification. Parity with this pool would require nearer 30% of QCs being women, instead of fewer than 15% at present.

42 http://www.legalfutures.co.uk/latest-news/women-lawyers-risk-averse-applying-qc

43 Bar Council, Snapshot: The Experience of Self-Employed Women at the Bar, 2014 http://www.barcouncil.org.uk/media/379529/snapshot_-_the_experience_of_self_employed_women_at_the_bar.pdf, p8

44 interestingly the same Bar Council biennial survey found that More women work at the employed Bar which does not have the same Silk-led career path that exists at the self-employed Bar44

He highlighted an important issue arising from the statistics and application feedback: it appears that women were less likely to “take a punt” and apply unless they were “convinced they are appointable”. This was reflected in the fact that women who did apply had a higher success rate than their male equivalents. Mr Bindman records his hypothesis as to why this might be “Women tend to be more risk averse than men, and unlike promotions in most fields becoming QC is a risk… You can get appointed to QC and somewhat to your horror the solicitors who were happy to instruct you as a junior don’t think you’re good value as a QC and won’t instruct you.”

The Work Foundation survey supported this view identifying that one factor inhibiting women from applying included an aversion to taking risks with established careers.

The disparity in applications between men and women is a serious issue as the vast majority of the judiciary are drawn from the ranks of self-employed silks and so the composition of those who make the most important decisions for the members of the public is becoming more and more unbalanced and unrepresentative of the society is must serve.

The commissioning of a report into the situation is to be commended and the report is now available for discussion and reflection. A consultation paper will go out to the profession once the implications of the report have been digested.

In the meantime; read the report Balancing the scales: A study into the under-application by women for appointment as Queen’s Counsel, The Work Foundation’ and the report by Zofia Bajorek, Ala’a Shehabi

and Jenna Kerns September 2017

http://www.theworkfoundation.com/wpcontent/uploads/2017/09/421_Balancing-the-scales.pdf

This recent research and its findings reflect previous efforts to redress the gender imbalance at upper levels of the profession which has an impact on applications to the judiciary.

The Bar Council Snapshot report in 2014 found:

Women who have successfully gone on to apply for Silk or Judicial appointment talked about the importance of receiving encouragement from their chambers, colleagues and clerks and that this gave them the confidence to apply. Some felt they were actively encouraged not to apply/take Silk and advised by their clerks that if they did their work would dry up. Others said they felt men in chambers were given much greater encouragement and support. Those that did apply found the process time consuming but far less daunting than they expected and welcomed improved transparency over the application process. They did however share their concerns over the requirements for referees, a particular issue for those with less court work, who have recently taken a career break, or who work flexibly. Some participants shared some negative experiences of the attitude of some male judges, specifically around allegations of women judges being appointed because of gender not merit. There was also some reference to judges’ training (residential course) not being very family friendly nor the requirement to relocate for some judicial roles, particularly when they had school age children.4344

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It appears that little has changed in 3 years and the question the Bar has to answer is for how much longer can this situation be tolerated.

The authors of the ‘Balancing the scales’ report made a number of positive suggestions amongst which I see no good reason not to embrace , and swiftly . They are:

Amplify female QC role models

The QCA, alongside other stakeholders, should amplify a pool of women QC role models from a range of backgrounds and develop a targeted outreach and marketing programme to drive an increase in applications from women.

Develop existing mentoring schemes

The QCA, providing assistance to the, relevant stakeholders, should promote, develop and help to evaluate existing mentoring schemes and networking opportunities for women.

The QCA to develop application tools and resources on its website

The QCA should allocate resources to improve the visibility and transparency of the application process on its website, with the aim to promote the QCA’s drive to encourage a higher number of applications from women.

Systems change

The QCA to work with other stakeholders to increase the pool of women junior barristers in the pipeline to reach the senior levels to qualify for QC status.

The Bar Council are acutely aware of the problem as Sam Mercer, Head of Policy , Equality and Diversity told me . The Bar Council commissioned research into the issue and interviewed women barristers in London, Bristol, Manchester and Leeds over July, October and November 2014.

I recommend reading the report in full, called ‘Snapshot, : The Experience of Self-Employed Women At The Bar’, but these are the key recommendations arising from it, and I quote (p 7)

Recommendations are based on what women participating in the research themselves suggested during the focus groups and in their responses to the questionnaire.

“The Bar needs to:

1. Encourage and facilitate mentoring of junior women by senior women - particularly around building a practice and establishing working relationships with clerks/practice managers. These mentoring relationships should focus on building junior women’s confidence in themselves and their ability to control their practice and relationships with others in chambers.

2. Facilitate access to business advice/coaching on developing a sustainable practice better able to withstand and support career breaks and more flexible working associated with having a family.

3. Establish more senior and more visible female role models.

4. Promote women’s marketing networks for barristers, particularly on the circuits and specifically focussed on developing relationships with professional clients.

5. Create support networks

(i) of working parents at the Bar as a source of advice and guidance around return to work, childcare, flexible working etc.; and

(ii) of women at the Bar for other women in the profession.

6. Extend the Bar Nursery to the circuits and explore what other direct and flexible childcare provision can be developed to support working parents at the Bar.

7. Encourage a better gender balance on key decision-making committees within chambers to ensure chambers empower women members in decision-making and do not develop policies that disadvantage women.”

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The report concludes that ‘The Bar Council will now explore ways in which to put these recommendations into practice for women’. 45

45 http://www.barcouncil.org.uk/media/379529/snapshot_-_the_experience_of_self_employed_women_at_the_bar.pdf

And this is how they propose to do so: Summary of Activity/Programmes ACCESS

To widen access, particularly to those from under-represented groups and those from a lower socioeconomic background

 

1. Bar Placement Week (London, Leeds, Manchester, Liverpool, Bristol and Birmingham) work experience shadowing barristers/advocacy training for Year 12 & 13 (social mobility)

2. E-mentoring for Year 12 & 13; first year undergraduates (social mobility)

3. Pupillage Supervisor Network (promoting best practice in recruitment)

4. Mini Pupillage Hub (improving transparency in mini pupillage opportunities)

5. Careers advice events (and literature) via Career Days for school children and Law Fairs for undergraduates (targeting students from non-traditional backgrounds)

6. Pupillage Fair (Seminars e.g. career clinics for older candidates; candidates with disabilities etc.)

7. Sponsorship of Bar Mock Trials (Public Legal Education) working with 2000 state school students per annum.

8. Working with undergraduate law students *NEW for 2017

 

RETENTION

To improve retention, particularly of women and those with a disability (including specifically mental health)

 

1. Research (on experience of under-represented groups at the Bar e.g. Snapshot; Momentum Measures; Change of Status Survey)

2. E&D Training and advisory services for individuals and chambers

3. Mentoring & Coaching* NEW for 2017

4. Wellbeing at the Bar programme

5. Events (e.g. Family Career Breaks)

 

PROGRESSION

To support progression, of under-represented groups and particularly of women and ethnic minorities

 

1. Silk and Judicial mentoring scheme

2. Developing pre-selection judicial training for under-represented groups (and other positive action measures) *New for 2017

3. Information events on judicial careers, encouraging participation in Treasury Panels etc. targeting under-represented groups.