There’s a baffling amount of equality and diversity statistics out there, so here are the headlines: of 1,700 Silks currently in practice at the Bar, 13.7% are women and 6.4% are from black, Asian and minority ethnic (BAME) backgrounds. In the last QC competition, of 119 Silks appointed, 26% were women and 15% identified as being from a BAME background. There are currently 22 BAME women in Silk.
Meanwhile, the Judicial Appointments Commission monitors the diversity of candidates at several stages during the recruitment process. The 2016-17 Statistics on Judicial Selection and Recommendation for Appointment indicate that 42% of applicants were women and 21% of applicants were from a BAME background. With the exception of certain small-grouped exercises, there was no apparent disparity in the likelihood of being recommended for appointment based on gender or other background characteristics. Twelve candidates were recommended for appointment under the Equal Merit Provision (where two or more candidates are assessed as being of equal merit, the JAC can select a candidate for the purpose of increasing judicial diversity).
Progress is undoubtedly being made, but these figures do not tell the full story. There remains a real question as to whether the Bar is still losing out on some of the best candidates due to problems of retention within our profession. A disproportionate number of women are giving up practice at the Bar early – and women are far more likely than men to cite family reasons for a change in their practising status. The Bar Council’s ongoing Change of Status Survey revealed in 2017 that of barristers changing their status due to caring for children, 43.2% are women (versus 13.8% of men). Whilst a total of 69.7% of the women surveyed said that having children had had an adverse effect on their career (compared with 39% of men). The upshot, according to data collected by the Equality and Diversity Committee of the Bar Standards Board, is that women represent 34% of those in self-employed practice, with a mere 15% of heads of chambers being women.
Become a Silk: are you ready to apply?
With this in mind, the Association of Women Barristers (AWB) and Society of Asian Lawyers (SAL) are doing what we can to assist and encourage our members, who tend to come from under-represented groups, to apply for Silk. We were fortunate to have a distinguished panel at our joint QC applications event on 15 June 2018 – Become a Silk: are you ready to apply? Russell Wallman (Head of Secretariat at QC Appointments) and Silks Sonali Naik QC (Garden Court Chambers) and Sophie Lamb QC (Latham and Watkins LLP) all generously gave their time and offered many nuggets of invaluable advice to would-be candidates. They all agreed on the importance of mentoring: it is essential for anyone considering applying for Silk to obtain advice and guidance from a colleague who had recently been through the application process.
Russell Wallman said that smaller numbers of women than men tend to apply for Silk and that care still needs to be taken to avoid reinforcing the problems of the past. Those who have taken career breaks or have worked part-time following childbirth have reported difficulties in finding judicial and other assessors to report on cases within the requisite period of three years prior to making their application. However, this should not discourage candidates and any breaks from practice for family reasons can and should be explained on the application form. Russell also emphasised the importance of finding a mentor and seeking help from someone who has recently gone through the application process.
Sonali Naik QC has previously worked part-time for family reasons for a number of years. She underlined the importance of fully documenting any time taken out of practice due to parental leave, or indeed for any other caring responsibilities. It is important to explain on the form the reasons for any career breaks or changes in working patterns that may have resulted in a failure to take on larger or more complex cases for a time, so that a candidate’s application is not prejudiced in any way by the time taken out. Sonali also emphasised the importance of working with chambers’ clerks to ensure that the right type of work was being sent your way.
Sophie Lamb QC emphasised the importance of strategic planning of work and lateral thinking when filling in the application. If your practice does not lend itself to some of the competencies, she advised diversifying and to consider taking on pro bono work (also a great way to give something back). She also advised careful planning in respect of the type of cases that you undertake and the importance of getting clients and judicial assessors on-board early.
So… what more can be done?
The Law Society’s Women in the Law 2018 is the largest international survey conducted on the topic of women and the law to date, drawing on a data-pool of 7,781 responses. The top three reasons cited as preventing many women from reaching senior positions in the legal profession were: unconscious bias, unacceptable work/life balance demanded to reach senior levels, and that traditional networks/routes to promotion were male-orientated. Whilst these are systemic issues that cannot be solved by some quick-fix type of action plan, there were a number of areas of good practice that respondents considered had worked well to support women, that might be equally helpful to those from BAME or other under-represented backgrounds. Initiatives identified as being the most effective were as follows:
- Access to mainstreaming of flexible working – for women and men of all levels.
- Networking opportunities at a local, city, or regional level or through national networks.
- Mentoring and sponsorship – including from senior staff, peers and reverse mentoring.
- Engaging men in the equality debates, to raise awareness of the issues, and to encourage shared parental leave and flexible working to enable men to participate more in family life.
- Promotion and celebration/increased visibility of leading women in the law: in the judiciary, in executive office, firms and organisations.
- Role-modelling family-friendly working practices, including through speaking at informal and formal events.
Interestingly, whilst half of all respondents said they thought there had been progress on gender equality over the last five years, there was a significant difference in perception by gender – 74% of men reporting progress in gender equality compared to 48% of women. Only 11% reported that unconscious bias training was being carried out in their organisation.
Many of these initiatives require a buy-in at policy level on the part of employers and chambers. It also has to be acknowledged that anything that alters traditional modes of working, such as the provision of flexible working or other family-friendly initiatives, is not cost-neutral. Individual chambers will feel the impact to a greater extent than larger organisations and some practices and areas of the law simply don’t lend themselves to flexible working. Therefore, if sustained improvements are to be made, our professional body and our regulator both need to lead the way. The Bar Council’s opposition to HMCTS’s ‘flexible operating hours in courts and tribunals’ proposal, on the ground that it would contribute to pressures upon barristers with caring responsibilities and represent a significant barrier to the retention of women, provides a positive example of the kind of intervention required.
Looking to the future
When taking this issue forward, the Inns, the Bar Council, and the BSB could only benefit from more direct and focused engagement with established networks and groups advocating for the interests of women, BAME, and other under-represented communities. There is a wealth of experience out there that perhaps isn’t being utilised as much as it could be. The work carried out by these organisations can also provide invaluable support to individual practitioners. For example, in addition to our June event, the AWB joined forces with the Association of Women Solicitors in February 2018 to offer support to those considering a judicial appointment.
There are also many smaller gains to be made. Sometimes all it takes is a kind word or an acknowledgement to boost someone’s confidence – and the importance of this shouldn’t be under-estimated. For instance, research carried out by Assistant-Professor Michael Blackwell at the LSE confirmed that the lower rates of women being appointed to Silk was partly attributable to lower rates of application, rather than unfair discrimination amongst applicants. Therefore, we should be championing and encouraging our junior (and indeed more senior) colleagues whenever we can. The Lammy Review on the treatment of BAME individuals in the criminal justice system, published in September 2017, goes a step further, recommending that either the Judicial Training College or JAC should start to provide pre-application support for ‘near-miss’ candidates in order to encourage diversity on the Bench.
It’s never too early to promote the Bar as a positive career choice. This should start at secondary school-level, if not before, and the Citizenship Foundation’s National Mock Trial Competition and the Social Mobility Foundation’s Speakers for Schools programme are examples of excellent practice in this area. Early intervention will become even more crucial in future as the number of tenancies being offered by chambers is declining. The number of pupillages on offer is also falling – and there may be further reductions as a result of the introduction of (laudable) minimum wage requirements. So the good work being undertaken to ensure that our profession provides equality of opportunity, and is capable of attracting the most qualified candidates, irrespective of gender or background characteristics, must continue.
Lynne Townley is a barrister and lecturer on the BPTC at City Law School, University of London. She is the new Chair of the Association of Women Barristers.
Six quick wins to do today
- Brainstorm some gender-neutral family-friendly networking ideas – traditional networking opportunities are too male-orientated.
- Champion someone today – sometimes all it takes is a kind word or an acknowledgement to boost someone’s confidence.
- Ask your organisation about unconscious bias awareness training – unconscious bias is one of the biggest barriers to progression.
- Engage male colleagues in the equality debate, discuss the perception-reality gap and the Bar Council’s bullying/harassment survey. The AWB is holding a wellbeing/anti-harassment and bullying event in the autumn following on from the survey.
- The number of pupillages are falling – find out about the COIC pupillage matched funding scheme on p 31.
- It’s never too early to promote the Bar as a positive career choice – volunteer for the Social Mobility Foundation’s Speakers for Schools programme and the Citizenship Foundation’s National Mock Trial Competition.