Gender at the Bar and fair access to work (1)

gettyimages-667586043_fmt

Are female juniors being given fair access to the most serious, complex (and lucrative) cases? A Supreme Court same-sex litigation team study and published data suggest not, finds HHJ Emma Nott


Although there is a growing problem with retention of junior barristers generally, statistics imply that women are leaving the self-employed Bar disproportionately to men – certainly between commencing tenancy and the five-year point. An analysis of the numbers shows that at entry (tenancy) 48% of barristers are female, after five years this figure drops to between 42.5 and 44%. This data, and the comparison with the employed Bar, both support an inference that the drop to 31% for the 15 years’ Call-plus cohort at the practising Bar as a whole isn’t simply a result of awaiting trickle-up, but that a female exodus from the self-employed Bar, which starts shortly after entry, continues steadily to and beyond the 15-year point. Were it otherwise the overall gender disparity would be mirrored within the employed Bar.

Differing reasons are proffered for this departure, beginning within a year or so of Call; it is pointed out that this period coincides with the stage in life that women are most likely to have children. In Barristers’ Working Lives: a Second Biennial Survey of the Bar (2013) the Bar Council reported that 57% of women at the Bar with children were primary carers compared with 4% of fathers at the Bar.

Impact of chambers culture

A research report Women at the Bar published by the BSB in July 2016 highlighted the fact that the Equality Rules in the BSB Handbook became mandatory as of 1 September 2012. In 2014 the BSB Supervision department found that 50% of chambers were non-compliant with the Rules. Yet a Bar Council report of 2015, Snapshot: The Experience of Self-Employed Women at the Bar, concluded that individual chambers’ culture and policies had a huge impact on the experience of women at the Bar who were bringing up children, and that even where the Equality Rules were implemented there was often a gap between policy and practice. Younger female members of the self-employed Bar said they could not see how it was possible to have a career and a family, and they did not see that they had a long-term future in self-employed practice.

Other demanding professions, eg journalism, teaching and medicine, as well as solicitors appear to do a lot better at retaining or re-engaging able women during and after the raising of children. Is it the nature of the work that drives women to desert the profession? The gender split at the employed Bar – 46% women – would suggest not. In the context of ever-decreasing fees at the publicly funded Bar, it may be – as the Bar Council has repeatedly predicted – that carers juggling childcare and practice have less appetite to work long and often anti-social hours when an ever-greater proportion of their receipts must be spent on paying third parties to look after their children. By contrast, employed practice may allow for a better work-life balance. Controversially perhaps, I would suggest that it may also better allow for parity of opportunity and parity of remuneration.

Are self-employed female juniors getting fair access?

The recent article ‘Patronising Lawyers? Homophily and Same-Sex Litigation Teams before the UK Supreme Court’ published in Public Law (July 2017) examined the gender of advocates appearing in the Supreme Court, with a particular emphasis on same-sex litigation teams. However, the collated data reveals a wider problem surrounding the instruction of female junior advocates. While one would expect the gender split among Queen’s Counsel to be stark, since in the history of the Supreme Court the number of female QCs has never achieved 15%, the gender split among junior counsel instructed might be expected to reflect the fact that 38.7% of the junior Bar is female.

"Why, when at entry level gender has been at near parity for many years, is the ratio of men to women reaching the top of the profession in the civil jurisdiction still little better than four-to-one?"

The researchers analysed every Supreme Court case since its inception to summer 2015, amounting to 470 cases involving 1,292 individual lawyers. Examining each legal team, of 709 leading counsel, 94 were female – 13.3% – broadly similar to the proportion of female QCs. Of the 709 first juniors in the Supreme Court, 203 were female – 28.6%, compared to the 38.7% of the junior Bar which is female (36.9% at the self-employed junior Bar).

These figures suggest that the female junior Bar is significantly under-represented in the Supreme Court, which necessarily deals with the most complex and high-profile cases. If women aren’t being given representative access to this work as juniors, then it is consequently going to be more difficult for them to gain the necessary experience, skill and confidence later to apply to take Silk.

The Homophily article also revealed some surprising results when broken down into practice area. The authors divided the cases into eight areas: Crime, Tax and Chancery, Family, QBD, Scotland, Admin, Northern Ireland, Other. Anecdotally it is considered that women are instructed in greater proportion in family and crime, and this is supported to some extent by the significantly greater proportion of women appointed as Queen’s Counsel in these practice areas over the last seven years when compared to the civil jurisdiction. The Supreme Court data disclosed that while the proportion of women was highest in family cases (around 34%), it was lowest in criminal cases where just 11.5% of the advocates were female. This was worse even than in tax and Chancery which had the second lowest female-to-male ratio, with 16% of advocates appearing in court being female.

A troubling hypothesis

One of the report’s authors, Professor Chris Hanretty, was kind enough to share with me his thoughts and data. His recollection was that many of the criminal cases in the Supreme Court concerned complex fraud or confiscation under the Proceeds of Crime Act 2002 (‘POCA’) and that his data implied that female advocates rarely appeared in such cases. This hypothesis was troubling, since complex fraud is by far the most remunerative area of crime.

Subsequent analysis of the material shared by Prof Hanretty revealed that in the 19 criminal cases heard in the Supreme Court to summer 2015, there were 105 advocates. The authors of the report had, in fact, recorded one male advocate as female; however, the raw data showed that of 53 Queen’s Counsel instructed, two were female – 3.7%. Of 52 junior counsel, nine were female (including one second junior) – 17.3%.

"These figures suggest that the female junior Bar is significantly under-represented in the Supreme Court, which necessarily deals with the most complex and high-profile cases"

Bearing in mind Prof Hanretty’s initial thoughts that many of the cases involved complex financial crime, I reviewed each case individually. Of the 19 cases, six related to POCA, one to confiscation in Northern Ireland, two related to terror or national security, four related to serious fraud and corruption. Regarding the six POCA cases, of 35 advocates only one was female (2.8%), and she was second junior for the intervener. In the four serious fraud/corruption cases, of 26 counsel instructed two were female (7.6%). The two female QCs across the 19 criminal cases were instructed in a case relating to joint enterprise/transferred malice and a Northern Irish sex case respectively.

A snapshot of the gender split

Are women being given fair access to the most serious, complex (and the most lucrative) crime? The Supreme Court data would suggest not. How is this reflected in the lower courts? Tim Grigg, the senior list officer at Southwark Crown Court (which deals with most if not all national cases prosecuted under the Heavy Fraud and Complex Criminal Cases Protocol), kindly provided me with a snapshot of the gender split of advocates appearing at Southwark on a random date – we chose the first Monday in July 2017. Mr Grigg identified all the cases that were listed on that date pursuant to the Heavy Fraud and Complex Criminal Case Protocol and we then cross-referenced with Exhibit to obtain the advocates’ details. Nine such cases were listed that day; of the 52 advocates appearing, seven (13.5%) were female.

This is simply a snapshot; perhaps more illuminating is an assessment of earnings and specifically, how the earnings of female criminal advocates compare to their male counterparts. This can only realistically be assessed by reference to publicly funded cases where fees paid are a matter of public record and is the subject of Part 2 of this article.

Crunching the numbers & the Trickle-Up Theory

Based on statistics published by the Bar Standards Board, the percentage of women at the Bar as a whole has risen by 1.5% in six years:

Looking specifically at self-employed barristers, in 2010 32% were women; in 2016 34.1% were women. Of self-employed juniors, in 2010 35.2% were women; in 2016 that percentage had risen to 36.9%. Of employed barristers, in 2010 46.4% were women; that figure has been reasonably consistent over the last seven years to 2016 when the figure was 46%.Gender split among pupils has been almost at parity from 2005 to date (BSB Website and Bar Barometer Full Report 2011). There is no data pre-2005.

The percentage of women practising as Queen’s Counsel over the last seven years has increased by 0.1% from 13.6% in 2010 to 13.7% in December 2016; it is said that at the current rate it will take more than 50 years before gender parity is achieved among QCs (Report on Diversity at the Bar, BSB, December 2016). Even though just under half of employed barristers are female and have been since 2010, and employed barristers comprise 18.2% of barristers as a whole, very few employed barristers are in Silk: in 2016 there were 36 employed QCs – 0.1% of the employed Bar compared to the 12.5% of the self-employed Bar who are in Silk.

Examining QC appointments in the last seven years up to and including the December 2017 list, 168 of 703 appointments were women (23.9% of appointments). Breaking it down into practice area (by looking at the website entry of each appointment over the last six years), 32.1% of family Silks appointed were female, 28.2% of criminal Silks appointed were female; 21.4% of Silks appointed to the civil jurisdiction were female. This last figure explains the low overall percentage, since the majority of QC appointments – 473 of the 703 – were within the civil jurisdiction. 21% does seem unacceptable in the 21st century. This is the widest practice area and, generally, the most remunerative. Why, when at entry level gender has been at near parity for many years, is the ratio of men to women reaching the top of the profession in the civil jurisdiction still little better than four-to-one?

The 2016 BSB report indicated that of the junior Bar as a whole (not including pupils) 38.7% were female. Taken at face value this ought to provide a good pool of candidates for Silk, but those considering applying will generally be more than 15 years’ Call; what then is the gender spread as years since Call increase? Of the 2,387 pupils taking up tenancy between 2009 and 2016, 48.1% were female, and this figure was generally consistent over those seven years. Of those under five years’ Call at the practising Bar in 2010, 46.2% was female. In 2014 the number of women had dropped to 42.5% before rallying a little in 2015 to 43.6%, and again in 2016 to 44.3%, but this is still a drop of nearly 2% from 2010. Of those of over 15 years’ Call, in 2010 24.9% were female; in 2016 30.6% were female, an improvement of 5.7% since 2010.

Gender statistics do not go back reliably before 2009 so it is difficult to assess the extent to which the gender disparity among barristers over 15 years’ Call derives from women in their 30s and 40s leaving the Bar, as opposed simply to awaiting the ‘trickle-up’ effect: one assumes the overall percentage is affected by a widening gap at the 30 years’ Call-plus stage, reflecting a presumed much smaller proportion of females at entry during the 1970s and 1980s. While the effect of increasing numbers of young women entering the profession at the end of the last century and into the 21st century takes time to filter through, one would expect to see a marked increase in percentage of females in the 15 year-plus bracket every five years or so to reflect gender split for each generation’s entry point. On the face of it the 5.7% increase since 2010 supports the theory that trickle-up is working. And yet…

Data regarding age is missing for just over 2,000 of the 12,745 self-employed barristers currently practising; but of the 10,705 barristers for whom the Bar Council holds such data, more than half are aged 25-45, and just 16% are 55 or over. The age profile of the employed Bar for whom data is held (90%) is broadly similar: around 13% is aged over 54. As women comprise 46% of the employed Bar, the trickle-up theory would not appear fully to account for the much lower figure – 34.1% – at the self-employed Bar.

Contributor HHJ Emma Nott, on behalf of the Bar Council Equality, Diversity and Social Mobility Committee

Category: 
Issue: 
Author details: 
HHJ Emma Nott

Emma was a criminal barrister in private practice to 2014; then a barrister at the PDS until Feb 2018; Independent chair of police misconduct panels 2015-2018; Employed Bar representative on the Bar Council EDSM Committee 2017-2018; appointed a Circuit Judge sitting at Reading Crown Court 2018.