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Is a global pandemic the right time to be thinking about diversity issues at the Bar?

Rachel Barrett, a barrister at Cloisters, recently spoke at the annual Women in Law panel discussion held by the Scottish Young Lawyers Association. Here, she provides a personal account on gender and the Bar in a time of panic.

On 10 March 2020, I attended a wonderful event, the annual Women in Law panel discussion held by the Scottish Young Lawyers Association. It was a well-attended and buzzy evening. I was privileged to appear on a panel with Emma Boffey, SYLA President and Associate at CMS Scotland, and Lisa Henderson QC and Susanne Tanner QC of Ampersand Advocates. I came away fortified by their enthusiasm and wisdom. It occurred to me to keep up the good work by turning the research I had undertaken in preparation for the event into a blog post.

Then … well, everyone knows what happened next. I’m glad my last trip out of chambers was for such a warm and lovely event, a memory to treasure over the coming weeks of working alone. I fervently hope the attendees are all keeping safe and well today and in the future.

I was going to drop the blog post idea. It seemed … trivial. Overtaken by bigger events. Perhaps not the right time to be thinking about legal professional issues when there are more immediate concerns about the safety and wellbeing of family and friends to address.

However, as the legal profession begins to adjust to the new “normal” and new ways of working, it occurs to me that this transitional time poses so many challenges that we are in danger of losing valuable progress achieved so far. There are also opportunities for new ways of working to be implemented that are capable of being fairer, more adaptable and more innovative than what went before. When we are next able to get on the bus, train or underground to our offices and chambers (and I so dearly hope to see all our colleagues safe and well when we arrive) perhaps we might bring with us a little positive shift in culture and understanding.

These are early days and,  so far, I have more questions than answers to share. This blog focuses on the Bar, and I note that many of the technological changes discussed below have already been implemented for some time by our instructing solicitors. The focus is also on gender issues, as this blog follows on from research undertaken for the Women in Law event. However, the impact of the changes on lawyers with disabilities may be yet more profound.

1. Gender and technology

My usual day job involves being in court or tribunal perhaps 3 days per week on average. There are a lot of early starts waiting for London buses, lugging cases full of papers up and down stairs in train stations, staying late in chambers to print authorities for submissions the next morning. I know my colleagues in chambers have similar working rhythms. Some areas of practice are more paper-based. Some have been ahead of the curve in adapting to paperless working. But we are all – usually – peripatetic.  

Since the beginning of last week, colleagues in chambers have been working hard to devise innovative ways of being home-based courtroom advocates. You can see a mock virtual trial they have undertaken here using Microsoft Teams software (*other video-conferencing providers are available). Some types of trial might not be suitable for remote working, including all jury trials and some trials involving litigants in person. In other cases, current technology allows for a surprisingly effective hearing. The Supreme Court successfully conducted and live-streamed its first virtual appeal today in Fowler v Commissioners for Her Majesty’s Revenue and Customs, leading the way for the lower courts to follow. Open justice can still be protected – indeed, online hearings may prove to be more accessible to the public than our physical courtrooms.

In recent days, necessity has been the mother of invention. However, the lessons we are learning so quickly now may continue to assist us to do our jobs better and more flexibly in the future. There will be a large backlog of cases to be case-managed and determined once this period of court closures is over. Continuing to conduct hearings remotely, where suitable, will save time and costs for all involved and allow the courts to manage the backlog more effectively. Courts will have become more used to dealing with bundles submitted electronically, lightening the loads in our wheely suitcases and the burden on chambers’ printers.

What other consequences might there be? It seems to me that if a greater proportion of hearings are conducted remotely in future, there will be more days when work can be completed within the confines of an ordinary working day. On days with remote hearings using electronic bundles, we will avoid the commute back from court to chambers (to use the printers) and finally home. That will tend to ease the burden on those for whom the heavy travel commitments at the Bar are most difficult, including those with disabilities which make commuting more onerous, and those with caring commitments.

A recent article in Counsel Magazine by HHJ Emma Nott[1] noted that in 2013, 57% of women at the Bar with children were primary carers compared with 4% of fathers at the Bar. This stark divergence may have narrowed since 2013, but we surely still have some way to go. Advocating for the continued use of remote technology in courtrooms in future, where appropriate and in accordance with the interests of justice, is a positive way to support continued progress.

It may also make a significant difference to the way the clerks room operates. Before the pandemic, Cloisters was taking the first tentative steps to facilitate remote clerking, with a view to enabling flexible working. That initiative has been accelerated. The impetus of course has been to allow us to provide a seamless service to our clients while we are physically away from our chambers. However, in the long term across the Bar, being jolted out of accustomed ways of working may open our eyes to how things can be done differently. The dearth of senior female clerks has long been a source of concern[2]; perhaps if the demands of the job can be more flexible, we can do better.

2. Parenthood at the Bar

This leads onto the second way in which our working lives have changed so radically and rapidly over the past days. Schools, nurseries and child-minders have closed. The children are home… all the time. The Bar Council has directed that barristers fall into the key worker category at times when their work is fundamental to the running of the justice system but that, even so, children should be kept at home where possible. This particular change does not affect me personally but has greatly impacted on the majority of my colleauges. (Sometimes my pet cats wander into view during videoconference calls but so far the disruption has been minimal!)

There is, of course, a risk that the removal of childcare support will impact far more on women at the Bar than men. The 57% / 4% primary carer statistic does not bode well for the gendered impact of a removal of childcare support.

However, anecdotally I observe that male as well as female friends and colleagues are by necessity taking on significantly more hours of childcare at this time. Everyone who is a parent simply has to. Especially barristers whose partners are (really!) key workers and are, therefore, the person at home with the children most of the time.

This means that courts will need to become a great deal more flexible and must assume that men as well as women are likely to be balancing heavy childcare commitments with their professional commitments. Timings of hearings as well as deadlines may need to be adjusted to work around these new realities. We should not be afraid to ask for what we need in order to make the continued operation of the justice system possible during these extraordinary times.

Again, it is to be hoped that the adaptations we reach now out of necessity may have positive consequences in future. A more flexible and less gender-divided approach to parenthood at the Bar would be a very welcome development.

3. Gender and instructions

Moving away from pandemic-related changes, there has been interesting recent research on gender and instructions at the self-employed Bar. Mikołaj Barczentewicz, Lecturer in Public Law and Legal Theory at the University of Surrey, has compiled data looking at all advocates appearing in the Supreme Court since its inception 10 years ago.[3] He found that only 21 out of the top 128 counsel (ranked by number of Supreme Court appearances), and only two in the top 10, are women.[4] When women lead teams of counsel in the Supreme Court, they are more likely than men to have at least one junior woman on their team.

This appears to be consistent with the findings of a 2017 paper by Chris Hanretty and Steven Vaughan[5] which found that male leaders in the Supreme Court were more likely to lead male juniors. While the proportion of women QCs in the Supreme Court was broadly reflective of the proportion of silks who are women (13% of their data set), when it came to looking at junior counsel, women were underrepresented. Women made up 29% of Supreme Court juniors compared to 39% of the junior Bar.

The pattern is replicated in other courts. A research team at The Lawyer magazine looked at evidence of instructing firms and employment counsel who appeared in the EAT and the Court of Appeal.[6] Cloisters did pretty well – we had near parity of representation amongst our juniors. However, the findings overall were that 30% of barristers in the EAT and 23% in the Court of Appeal were female. Both claimant and respondent firms tended to opt for male silks, and the tendency for male silks to lead male juniors was as apparent here as in the Supreme Court. Women were more likely to be representing claimants than employers. They were more likely than their male counterparts to be appearing pro bono.

The data tend to suggest that there is a barrier for women accessing the most high profile and exciting appellate work. Being led in these types of cases is how juniors build up the experience to take silk and become leaders in turn. It also makes for an engaging and rewarding career. The low proportion of women silks is both a cause and effect of this gender discrepancy perpetuating, because silks tend to bring on juniors of their same gender.

What can be done about this? The Employment Lawyers Association (ELA) are currently working on an initiative asking participating firms to monitor the gender of the advocate instructed and the person making the decision to instruct, for every instruction over 3 months. The intention is that by monitoring trends, it will become possible to identify any inequalities and take remedial action. There is unlikely to be deliberate and conscious discrimination to any significant extent; this would breach the Equality Act 2010 and our professional codes of conduct. But an absence of deliberate discrimination is not enough.  For example, firms may tend to prefer to repeatedly instruct barristers they already know to be a ‘safe pair of hands’ without considering if that approach perpetuates unequal briefing. Where law firms consciously monitor gender when it comes to instructing counsel, including in relation to the high profile appellate work, it is anticipated that unconscious biases will be reduced.

It is important that this type of monitoring work does not get lost amongst the more urgent and immediate priorities for law firms and chambers during this period of crisis and the hoped-for period of recovery to follow. In any time of crisis and change, there is a danger of slipping backwards on diversity issues (as well as the opportunities for progress as discussed above). The best way to ensure this does not happen is to to keep monitoring, discussing and addressing inequality where we find it.

4. Gender and language

Lastly, a final reflection on gendered language.

Picture a lawyer who is collaborative, a pleasure to work with, client-focussed, well-organised, diligent and thorough. Picture another lawyer who is a strategic thinker, charismatic, a legal heavy-weight, a fighter, with a mastery of their area of law. What mental image to these descriptions evoke?

Allen & Overy recently undertook a review of the London Bar rankings in the Legal 500, which found marked differences in the way men and women were referred to. They produced a fascinating briefing note detailing the gendered differences in the language used in directory recommendations. Apparently men are much more likely to be compared to cars! Inspired by their work, I looked at the Scottish rankings in Chambers and Partners for this year and found a similar pattern there. The first set of adjectives above were used always or predominantly to describe women, and the second set men.

Does it matter? As lawyers we tend to think that language does matter – we are alert to niceties of meaning as well as nuance. It makes a difference to the perception of men and women lawyers  if the men are formidable ‘big beasts’ while the women are faintly praised for being conscientious. However, the solution is not straightforward. It helps to be conscious of language biases, but simply switching the descriptors around may not have the desired effect. One of the issues considered by Allen & Overy as part of their diversity and inclusion initiative is that words may have very different connotations when used to describe women and men. A plea: please do not compare a female lawyer to a pitbull, rottweiler or any other kind of dog…

Rachel Barrett

Cloisters

26 March 2020


[1] https://www.counselmagazine.co.uk/articles/gender-the-bar-and-fair-access-work-1

[2] See e.g. interview with Lucy Barbet, chair of the Institute of Barristers Clerks (IBC) in The Lawyer magazine, 17 July 2019 https://www.thelawyer.com/11kbw-we-need-more-senior-female-clerks/

[3] ‘Litigation in the UK Supreme Court: Collecting and Exploring the Data’ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3488839.

[4] Namely, Dinah Rose QC and Karon Monaghan QC.

[5]Patronising lawyers? Homophily and same-sex litigation teams before the UK Supreme Court’ Public Law 2017(3) July 2017.

[6]How gendered instructions at the employment Bar are scuppering female barristers’ ambitions for silk’ Beatriz Veyrat, Amar Mehta & Catrin Griffiths, The Lawyer 3 July 2019.