The new survey of Barristers’ Working Lives 2017 breaks ranks with its predecessors. In 2013 and again in 2011 it was published jointly by Bar Council and the Bar Standards Board (BSB). Those reports included a biographical profile in the broadest sense of who is at the Bar and an attitudinal analysis of the Bar to its work. The correlations between the two could be fascinating.

In 2017 the Bar Council instead carried out the survey in conjunction with the Circuits and specialist Bar associations (SBAs). Similar but fewer questions were asked than in the past. This was intended in part to encourage a higher response rate. That did not happen. Previously, when only half the Bar was canvassed, the response rates were 38% and 44%. Now, when the survey was sent to the entire Bar, 26.4% responded. Nevertheless, there was a statistically valid sample which roughly represented the make-up of the Bar. Of those in single practice areas, which were 52% of the total, 44% were criminal barristers and 23% did family work.

The survey was press-released in chapters to maximise campaigning effect: Barristers’ attitudes towards their working lives in May 2018 and in June 2018 Barristers’ experience of harassment, bullying and discrimination. Bar Chair, Andrew Walker QC said: ‘We hope these findings remind everyone to be vigilant and to take responsibility by challenging this behaviour. We must get much tougher on this, and support each other better… The evidence in this report will be used widely by the Bar Council and others, to inform debate and policy making in tackling this issue.’

Harassment, bullying and discrimination

Certainly, over the years there has been a transformation in sensibilities about harassment, bullying and discrimination.

In 2011 and 2013 respondents were asked whether in the previous two years they had experienced or observed harassment, bullying or discrimination in the workplace. Overall, 9% of self-employed barristers had experienced or observed such behaviour but the ‘Yes’ responses were highest amongst the employed Bar, particular areas of specialism, women, black, Asian and minority ethnic (BAME) and lesbian, gay, bisexual and transgender barristers (LGBT) and those with childcare responsibilities. For the self-employed, 15% of those in family work and 13% of those who did crime had experienced it. Worse, 29% of employed barristers doing crime had experienced it as had, overall, 25% of BAME barristers. At the time the survey did not provoke a public discussion.

In 2015 the Bar Council issued Snapshot: the experience of self-employed women at the Bar. The then Chairman, Alistair MacDonald QC in his Foreword said ‘we have clearly moved on in the way women are treated’ and ‘most if not all’ of the incidents related by the participants in the report ‘were in the past’. The women who had had to reach back into their memories all acknowledged ‘how life had changed for the Bar for the better in this respect’. But then in June 2016 the BSB issued a far fuller survey, Women at the Bar. It found that in fact nearly a third of the most recent Callees had experienced discrimination (it was 48.6% overall for those who were primary carers of children) and over a third of women under 15 years’ Call had experienced harassment. The percentage was higher for older respondents.

Getting worse not better

The 2017 Survey asked again whether the respondents had personally experienced or observed harassment, bullying or discrimination in work in the previous two years, that is, subsequent to the optimistic words in Snapshot. Instead of moving on, things had got markedly worse. Once more the main victims were women and BAME barristers. A third of each had experienced harassment, bullying or discrimination (versus 12% of males and 19% of whites). Overall, 21% of employed barristers and 12% of self-employed barristers had experienced recent harassment or bullying whilst 30% of employed barristers and 17% of self employed barristers had observed it. 16% of employed and 13% of self employed barristers had experienced discrimination and 20% of employed and 15% of self-employed barristers had observed it.

In terms of experiencing or observing harassment or bullying, the highest percentages were found in those who exclusively practised in crime, followed by those doing family work. The survey did not define what constituted the behaviour but respondents were asked about the nature of it and could give more than one type: 53% cited gender, 21% age and 19% ethnic background. Of those who experienced harassment or bullying, 50% stated that it came from another barrister in chambers or a colleague; 28% from a clerk or practice manager (the figure for discrimination from clerks was 41%) and 28% a head of chambers, management committee or manager.

The accompanying press releases explained the Bar Council’s ongoing work programme based on ‘Identify, Report and Support’ (see below). There is already a confidential helpline (020 7611 1321), training and other support which barristers are urged to use. The aims include increased awareness of and confidence in challenging unacceptable behaviour and increased confidence in reporting it.

Stark practice differences in attitudes

The other published chapter is on barristers’ attitudes towards their working lives.

Here as well there had been a deterioration, though not across the board. ‘I am able to cope with the level of stress in my job’ (58% said ‘yes’ versus 69% in 2011), ‘I am happy with my working hours’ (40% ‘yes’ down from 49%) and ‘I do not feel I am under too much work pressure’ (26% ‘yes’ down from 34%). On the other hand, a higher percentage overall felt that they are paid fairly considering their expertise and that work is allocated fairly where they work. More would recommend the Bar as a career, and 89% still find their work to be interesting.

There are, however, great differences between specialisms and Circuits. 48% of those who only do crime and 58% of those who only do family work feel unable to balance their home and work lives. 61% of Chancery and commercial practitioners do feel able to balance them. Similarly, 58% of Chancery and commercial practitioners do not feel emotionally drained by their work but only 27% of criminal practitioners and 18% of family practitioners share that. The majority of all barristers feel enthusiastic about their work most days; Chancery and commercial practitioners (66%) most of all.

The gulf between different parts of the profession extends to other matters as well. 77% of Chancery and commercial barristers feel they are fairly paid considering their expertise. Criminal barristers traditionally report that they are not, although in the past it was the youngest criminal barristers who were the happiest whilst gloom struck most powerfully when they reached their 40s. This time only 18% felt fairly paid. As stated above, criminal barristers report the highest percentage of those who have experienced harassment, bullying and discrimination, which most often takes place in chambers. Perhaps that explains why only 36% of them feel that they are paid fairly viz other criminal barristers and only 60% feel that work is fairly allocated in chambers. All other specialisms had more positive responses to those latter questions.

It’s criminal

The headline from the Bar Council about this chapter of the survey is that 62% of criminal barristers work at least a day a week for which they are not paid. Presumably this refers to work one does on a case knowing that it won’t be recompensed in the eventual fee. However, if one looks at the table in Appendix 1, the more scandalous finding is that 34% of criminal barristers work more than 20 hours per week unpaid. In terms of how many work from six to 20 hours per week unpaid, the criminal Bar comes bottom (56%) as against 58% for commercial and Chancery, 66% for family, 67% for PI and 63% for civil. The top reasons for this are that the solicitor does less than previously (70% of criminal barristers and 60% of family barristers said that) followed by the facts that cases are unpredictable and it is difficult to calculate hourly fee rate. ‘Client can’t afford more’ applies to the privately paid sector.

Despite not being paid for it, the percentage of criminal barristers who work more than 60 hours a week has shot up. It is now 27% of the total, though less than family barristers, a third of whom work that long. In fact, more barristers than before in every specialism now work more than 60 hours a week. The number of barristers who work less than 40 hours per week is a quarter or less.

It would have been fascinating if the responses to the two questions ‘Are you paid fairly?’ and ‘How many hours a week are you working unpaid?’ had been correlated so we would know how one impacts on the other. The fact that so few criminal barristers feel that they are paid fairly will itself explain the crisis over the rising amount of unpaid work they put in. A majority of non-criminal and family practitioners say that they are paid fairly and say they are putting in very long hours of unpaid work. Are they the same people? Do they consider it simply part of the job? One needs to know more here.

In terms of overall satisfaction, 60% of Chancery and commercial barristers find that all or most of their needs are met in their practice. The majority of those in other specialisms also feel that way but not criminal (38% positive) and family (41% positive) barristers. Although only a tiny percentage of the Bar is not at all satisfied and plans to change as soon as possible, a third of criminal barristers and a quarter of family barristers are either not at all satisfied or are not satisfied and are considering their options. Money and career prospects unsurprisingly weigh most heavily with those considering a change in employment status though 49% of family barristers and 37% of criminal barristers also cite workload/stress. Family practitioners had the highest percentage (11%) of those who also cited disliking the profession/work.

Don’t look away

The accompanying Bar Council press release calls for everyone to ‘support those who are finding practice ever more difficult to sustain’. It acknowledges that the leadership of the Bar must make our case to government, Parliament and the public. Here, the Bar Council looks outward. Harassment, bullying and discrimination are behaviours which barristers (and their clerks) do to other barristers. Here, we must look to one another. In both instances, something must be done.

David Wurtzel 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.

The ‘Identify, Support, Report’ programme

Bar Council’s 2017/2018 work programme tackling harassment and bullying within the Bar and from the Bench is based on three pillars: Identify – ensure inappropriate behaviours including sexual harassment and other forms of harassment and bullying are recognised; Report – ensure inappropriate behaviours are challenged, and/or reported appropriately and that processes (in chambers, the Inns and within the BSB) are in place, fit for purpose and effectively implemented to do this; and Support – ensure victims/witnesses are looked after and suffer no career detriment.

See the full programme here.
Call the confidential helpline: 020 7611 1321

Beyond box ticking, take the first steps: How to identify? New Bar Council awareness training will feature in the next issue of Counsel.