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The 2021 survey of barristers’ working lives explores the lived experience of working as a barrister – and you want change!
By David Wurtzel
This is the fourth Barristers’ Working Lives survey since 2011, investigating how barristers work, their attitudes and wellbeing, and who they are. Each has been carried out by Geoff Pike of Employment Research Ltd together with the Institute for Employment Studies. In 2011 and 2013 it was published jointly by the Bar Council and the Bar Standards Board (BSB). Since 2017, the Bar Council has gone solo. Over the years the questions change; the answers are always worth paying attention to.
The survey, quite rightly, goes into considerable detail. For whatever reason, the response rate has declined. In 2011 and 2013, the questionnaire was only sent to half the Bar, but within that group, 44% responded. In 2017 and 2021 the survey was sent to the entire Bar. The response rate has been about 20%, of whom 84.2% were self-employed in chambers.
Forty eight per cent of the responses were from women who make up 36% of the self-employed Bar, although 48% of the employed Bar. A disproportionate number (88%) of respondents were white, 4% were from mixed backgrounds, 4% (or about 140 respondents) were Asian/Asian British and 2% were Black or Black British (48 women and 22 men). According to the BSB, there are 2,384 non-white barristers. On the other hand, the respondents do match fairly closely the actual distribution of specialisms and of seniority. In any event, the 20% who had the motivation to work their way through the survey stand in for the other 80%. Perhaps that is inevitable in such projects.
The survey opens by flagging up the issue of harassment, bullying and discrimination. In 2011, overall 6% of the self-employed Bar had personally experienced harassment, bullying and/or discrimination within the previous two years, although the figure went up to 15% for women and was highest for the employed Bar and non-white women. The correlation between gender and ethnicity remains a constant. In 2013, 13% overall had experienced this behaviour. In 2017 it rose to 21%. Now it is 30%, 43% of the women and 17% of the men, but much higher for those who practise in crime (37%; 54% for the women) and in family (36%). The 30% figure breaks down into 26% for white barristers, 53% for Black barristers (and 63% for Black women), 47% for Asian barristers and 46% for mixed background.
Each survey asks about the nature of bullying, harassment or discrimination. Remarkably, this does not change. The percentage of those who cite gender, age, ethnicity, disability and religion or belief are almost exactly the same in 2021 as they were in 2013. Nothing alters except for sexual orientation (down from 7% to 3.9%) and pregnancy/maternity (down from 12% to 5.5%).
Each survey has also identified the perpetrators. There has been a consistency in the response: another barrister in chambers, the head of chambers, and the practice manager. The 2021 survey introduces someone new: the judiciary, who have not previously been cited. Forty five per cent of those who have experienced bullying, harassment and/or discrimination have done so at the hands of judges versus 48% from other barristers. This goes up to 62% for those in crime and 48% for those doing family.
So, what is going on? In the last decade there has been an avalanche of articles, surveys, mentoring, Equality Rules, and more, in short everything designed to change the culture. Instead, the problem only gets worse. The survey contains no further detail as to the nature of the behaviour, which begs the question of at what stage it crosses the line and becomes professional misconduct. Or, in respect of judges, how many times the lay client left court saying that they had not had a fair trial. That is not answered by the fact that scarcely anyone takes advantage of the BSB complaint procedure or uses the Bar Council’s Talk to Spot app or writes to the Office of Judicial Complaints. Overwhelmingly, the respondents reported the issue to another barrister or to chambers and indeed expressed satisfaction with the outcome. Even if some or most of this is ‘low level’, that doesn’t excuse any of it. Perhaps victims do not want to get another barrister in trouble or to call out a misbehaving judge before whom one might again appear, but finding oneself a victim does not add to wellbeing or encourage remaining at the Bar.
Inevitably, the effect of the COVID pandemic was the starting point for many questions. Roughly a third of the Bar (31%) found that it had produced a positive impact; a third (32%) a small negative impact; and a third (32%) a significant negative impact. Unsurprisingly, those worst hit were criminal practitioners: 70% reported a negative impact on their financial situation with nearly the same figure for those reporting a negative impact on their overall wellbeing. Fifty six per cent of those who suffered a negative impact on their financial situation actually suffered financial hardship. The figure of 32% for ‘positive impact’ may be explained by the finding that 45% report a positive impact on their work-life balance. Sixty per cent of those who wanted to change the way they worked wanted more remote working and 42% wanted more flexibility. This suggests that those who were forced to work differently during the pandemic discovered that they were in fact happier working that way and would like to carry on. Women were more dissatisfied than men when asked about their work-life balance and overall wellbeing; white barristers were the least negative about both; while Black barristers reported the most dissatisfaction in these two areas.
One aspect which probably affects wellbeing is whether one felt that work was being distributed fairly. The responses here correlate to gender and ethnicity. In each ethnicity, more men than women thought that it was fair – nearly 70% of white men said ‘Yes’ here, compared to less than 50% of Black women. Perhaps not surprisingly, the attitude towards work-life themes (eg supportive work environment, psychological wellbeing, workload management) are correlated to income. The degree of positive views rises once gross incomes are above £90,000. Still, 77% of all barristers agree, or strongly agree with ‘within my working environment there is generally a sense of cooperation and collaboration’ and 76% agree with ‘I can confide in work colleagues regarding challenges experienced with my cases’. Anxiety, though, is still there: 62% do not dwell on their mistakes but 20% do. Sixty one per cent are ‘satisfied with my job as a whole’ but 22% are not.
The survey aims to produce a demographic profile, and there are a number of appendices which break things down on various bases and are worth examining closely. The survey asks among other things about age, ethnicity, religious belief, and sexual orientation (16% of the younger Bar is LGBT, compared to 9% of the Bar overall). These answers tell their own story. Less clear in their significance are responses about schooling and parental education. If one looks at barristers’ profiles on their chambers’ websites, many if not most will give their university and degree as part of their relevant credentials, but only a minute number their school, let alone their family history. Universities were part of the 2011 and 2013 surveys but the Bar Council stopped asking about that in 2017. The Bar was then about one-third Oxbridge and given the pupillage intake, presumably still is. There is nothing ‘representative of the society we serve’ about that.
If you want to know who gets pupillage, and therefore the demography of the Bar going forward, you have to go to the BSB surveys on BPTC students. There is no surprise in discovering that there is a direct correlation between success in getting pupillage and academic success in certain universities: a First class degree from one of the best law schools in the country still counts. Nearly 83% of white students (76% of non-white) with a First Class degree from a Times Top Ten University and an Outstanding on the Bar exams get pupillage. The percentages of success steadily decline from Outstanding to Very Competent to Competent and from First to 2.1. The dramatic fact is the difference in success rates for white and non-white candidates with the same paper qualifications. One trusts the Bar will address this. If the Bar recruited in cohorts that would be simple, but with every chambers that takes pupils recruiting independently, subject to an unsuccessful pupil going public that they were treated unfairly, the solution is more challenging.
Schooling remains a category in the surveys. Here it is broken down (for UK schools) between state schools which are selective on academics or faith (21% of men, 24% of women), state schools non-selective (29% of men, 39% of women), fee paying with a bursary (14% of men, 9% of women), and independent or fee paying schools (29% of men, 20% of women). Since only 7% of the school age population goes to independent or fee paying school, the Bar here again is miles from being ‘representative’. For those who may wish to pursue the survey’s findings further, Table 8.8 in the annex is a demographic table based on income band. The percentage of those who went to state schools drops below 50% for those earning over £240,000 gross and continues to fall thereafter.
The 2021 survey also deals with parental education. This question has arisen quite recently, and acts as a code for social class in substitute for a full-scale socio-economic survey. The drawback is that after one notes that part of family history, one knows nothing about the circumstances of the individuals. It would be patronising to assume or to speculate on what they are. Nevertheless, we seem to think it is important. The recent Inns of Court College of Advocacy Bar course annual report tells us that 60% of the students are ‘the first in the family [undefined]’ to go to university. Since this would have nothing to do with their academic ability or aptitude for the Bar, one is left wondering why students are asked this, in what context and when – does it now form part of the process of selecting the cohort?
The irony is that we ignore the historical context and concentrate solely on the young Bar. As the survey shows (Table 8.5), the youngest are the least likely (36.6%) to be the first generation in higher education although they are the most likely (61.2%) to have gone to state schools. As one goes up the ladder of seniority, these figures are reversed. The group with a majority of ‘first generations’ is those barristers over the age of 45. No one considers that an achievement. The reason? When the over 45s’ parents reached the age of 18, say about 1970, only 10% of school leavers went to university. The numbers began to skyrocket from the early 1990s and doubled between 1992 and 2016. The result is predictable. Going to university now is less and less unexpected. None of which should inhibit us from assisting promising young people who are struggling with adversity.
The survey was released at the same time as a short but important report Barrister earnings data by sex and practice area. Overall, for the past 20 years men have earned more than women and the gap has just got bigger. It looks at family (72% of family practitioners doing children cases are women) and crime (publicly funded as well). Barristers’ Working Lives looks at this in more detail, having already noted the difference between the genders in response to the question about distribution of work. Table 8.2 shows that it is in the high earning specialisms that there are the fewest women – intellectual property, Chancery (contentious), commercial, landlord and tenant (non-residential), planning and revenue.
The facts are there. The will to change them is up to us.
Further information and sources of support
David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.
This is the fourth Barristers’ Working Lives survey since 2011, investigating how barristers work, their attitudes and wellbeing, and who they are. Each has been carried out by Geoff Pike of Employment Research Ltd together with the Institute for Employment Studies. In 2011 and 2013 it was published jointly by the Bar Council and the Bar Standards Board (BSB). Since 2017, the Bar Council has gone solo. Over the years the questions change; the answers are always worth paying attention to.
The survey, quite rightly, goes into considerable detail. For whatever reason, the response rate has declined. In 2011 and 2013, the questionnaire was only sent to half the Bar, but within that group, 44% responded. In 2017 and 2021 the survey was sent to the entire Bar. The response rate has been about 20%, of whom 84.2% were self-employed in chambers.
Forty eight per cent of the responses were from women who make up 36% of the self-employed Bar, although 48% of the employed Bar. A disproportionate number (88%) of respondents were white, 4% were from mixed backgrounds, 4% (or about 140 respondents) were Asian/Asian British and 2% were Black or Black British (48 women and 22 men). According to the BSB, there are 2,384 non-white barristers. On the other hand, the respondents do match fairly closely the actual distribution of specialisms and of seniority. In any event, the 20% who had the motivation to work their way through the survey stand in for the other 80%. Perhaps that is inevitable in such projects.
The survey opens by flagging up the issue of harassment, bullying and discrimination. In 2011, overall 6% of the self-employed Bar had personally experienced harassment, bullying and/or discrimination within the previous two years, although the figure went up to 15% for women and was highest for the employed Bar and non-white women. The correlation between gender and ethnicity remains a constant. In 2013, 13% overall had experienced this behaviour. In 2017 it rose to 21%. Now it is 30%, 43% of the women and 17% of the men, but much higher for those who practise in crime (37%; 54% for the women) and in family (36%). The 30% figure breaks down into 26% for white barristers, 53% for Black barristers (and 63% for Black women), 47% for Asian barristers and 46% for mixed background.
Each survey asks about the nature of bullying, harassment or discrimination. Remarkably, this does not change. The percentage of those who cite gender, age, ethnicity, disability and religion or belief are almost exactly the same in 2021 as they were in 2013. Nothing alters except for sexual orientation (down from 7% to 3.9%) and pregnancy/maternity (down from 12% to 5.5%).
Each survey has also identified the perpetrators. There has been a consistency in the response: another barrister in chambers, the head of chambers, and the practice manager. The 2021 survey introduces someone new: the judiciary, who have not previously been cited. Forty five per cent of those who have experienced bullying, harassment and/or discrimination have done so at the hands of judges versus 48% from other barristers. This goes up to 62% for those in crime and 48% for those doing family.
So, what is going on? In the last decade there has been an avalanche of articles, surveys, mentoring, Equality Rules, and more, in short everything designed to change the culture. Instead, the problem only gets worse. The survey contains no further detail as to the nature of the behaviour, which begs the question of at what stage it crosses the line and becomes professional misconduct. Or, in respect of judges, how many times the lay client left court saying that they had not had a fair trial. That is not answered by the fact that scarcely anyone takes advantage of the BSB complaint procedure or uses the Bar Council’s Talk to Spot app or writes to the Office of Judicial Complaints. Overwhelmingly, the respondents reported the issue to another barrister or to chambers and indeed expressed satisfaction with the outcome. Even if some or most of this is ‘low level’, that doesn’t excuse any of it. Perhaps victims do not want to get another barrister in trouble or to call out a misbehaving judge before whom one might again appear, but finding oneself a victim does not add to wellbeing or encourage remaining at the Bar.
Inevitably, the effect of the COVID pandemic was the starting point for many questions. Roughly a third of the Bar (31%) found that it had produced a positive impact; a third (32%) a small negative impact; and a third (32%) a significant negative impact. Unsurprisingly, those worst hit were criminal practitioners: 70% reported a negative impact on their financial situation with nearly the same figure for those reporting a negative impact on their overall wellbeing. Fifty six per cent of those who suffered a negative impact on their financial situation actually suffered financial hardship. The figure of 32% for ‘positive impact’ may be explained by the finding that 45% report a positive impact on their work-life balance. Sixty per cent of those who wanted to change the way they worked wanted more remote working and 42% wanted more flexibility. This suggests that those who were forced to work differently during the pandemic discovered that they were in fact happier working that way and would like to carry on. Women were more dissatisfied than men when asked about their work-life balance and overall wellbeing; white barristers were the least negative about both; while Black barristers reported the most dissatisfaction in these two areas.
One aspect which probably affects wellbeing is whether one felt that work was being distributed fairly. The responses here correlate to gender and ethnicity. In each ethnicity, more men than women thought that it was fair – nearly 70% of white men said ‘Yes’ here, compared to less than 50% of Black women. Perhaps not surprisingly, the attitude towards work-life themes (eg supportive work environment, psychological wellbeing, workload management) are correlated to income. The degree of positive views rises once gross incomes are above £90,000. Still, 77% of all barristers agree, or strongly agree with ‘within my working environment there is generally a sense of cooperation and collaboration’ and 76% agree with ‘I can confide in work colleagues regarding challenges experienced with my cases’. Anxiety, though, is still there: 62% do not dwell on their mistakes but 20% do. Sixty one per cent are ‘satisfied with my job as a whole’ but 22% are not.
The survey aims to produce a demographic profile, and there are a number of appendices which break things down on various bases and are worth examining closely. The survey asks among other things about age, ethnicity, religious belief, and sexual orientation (16% of the younger Bar is LGBT, compared to 9% of the Bar overall). These answers tell their own story. Less clear in their significance are responses about schooling and parental education. If one looks at barristers’ profiles on their chambers’ websites, many if not most will give their university and degree as part of their relevant credentials, but only a minute number their school, let alone their family history. Universities were part of the 2011 and 2013 surveys but the Bar Council stopped asking about that in 2017. The Bar was then about one-third Oxbridge and given the pupillage intake, presumably still is. There is nothing ‘representative of the society we serve’ about that.
If you want to know who gets pupillage, and therefore the demography of the Bar going forward, you have to go to the BSB surveys on BPTC students. There is no surprise in discovering that there is a direct correlation between success in getting pupillage and academic success in certain universities: a First class degree from one of the best law schools in the country still counts. Nearly 83% of white students (76% of non-white) with a First Class degree from a Times Top Ten University and an Outstanding on the Bar exams get pupillage. The percentages of success steadily decline from Outstanding to Very Competent to Competent and from First to 2.1. The dramatic fact is the difference in success rates for white and non-white candidates with the same paper qualifications. One trusts the Bar will address this. If the Bar recruited in cohorts that would be simple, but with every chambers that takes pupils recruiting independently, subject to an unsuccessful pupil going public that they were treated unfairly, the solution is more challenging.
Schooling remains a category in the surveys. Here it is broken down (for UK schools) between state schools which are selective on academics or faith (21% of men, 24% of women), state schools non-selective (29% of men, 39% of women), fee paying with a bursary (14% of men, 9% of women), and independent or fee paying schools (29% of men, 20% of women). Since only 7% of the school age population goes to independent or fee paying school, the Bar here again is miles from being ‘representative’. For those who may wish to pursue the survey’s findings further, Table 8.8 in the annex is a demographic table based on income band. The percentage of those who went to state schools drops below 50% for those earning over £240,000 gross and continues to fall thereafter.
The 2021 survey also deals with parental education. This question has arisen quite recently, and acts as a code for social class in substitute for a full-scale socio-economic survey. The drawback is that after one notes that part of family history, one knows nothing about the circumstances of the individuals. It would be patronising to assume or to speculate on what they are. Nevertheless, we seem to think it is important. The recent Inns of Court College of Advocacy Bar course annual report tells us that 60% of the students are ‘the first in the family [undefined]’ to go to university. Since this would have nothing to do with their academic ability or aptitude for the Bar, one is left wondering why students are asked this, in what context and when – does it now form part of the process of selecting the cohort?
The irony is that we ignore the historical context and concentrate solely on the young Bar. As the survey shows (Table 8.5), the youngest are the least likely (36.6%) to be the first generation in higher education although they are the most likely (61.2%) to have gone to state schools. As one goes up the ladder of seniority, these figures are reversed. The group with a majority of ‘first generations’ is those barristers over the age of 45. No one considers that an achievement. The reason? When the over 45s’ parents reached the age of 18, say about 1970, only 10% of school leavers went to university. The numbers began to skyrocket from the early 1990s and doubled between 1992 and 2016. The result is predictable. Going to university now is less and less unexpected. None of which should inhibit us from assisting promising young people who are struggling with adversity.
The survey was released at the same time as a short but important report Barrister earnings data by sex and practice area. Overall, for the past 20 years men have earned more than women and the gap has just got bigger. It looks at family (72% of family practitioners doing children cases are women) and crime (publicly funded as well). Barristers’ Working Lives looks at this in more detail, having already noted the difference between the genders in response to the question about distribution of work. Table 8.2 shows that it is in the high earning specialisms that there are the fewest women – intellectual property, Chancery (contentious), commercial, landlord and tenant (non-residential), planning and revenue.
The facts are there. The will to change them is up to us.
Further information and sources of support
The 2021 survey of barristers’ working lives explores the lived experience of working as a barrister – and you want change!
By David Wurtzel
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