Fair’s fair: next 100 years

The Bar Council’s plans to accelerate progress (or at least shift away from reverse) in diversity and fair work distribution across the Bar. By Sam Mercer

Poor retention of women has been a persistent problem (and lost opportunity) for the Bar. In 2015, in my relatively early days at the Bar Council, we commissioned the Momentum Measures research to look at ‘survival’ rates in the profession. This showed us that despite being in good shape with respect to the recruitment of men and women, based on current retention rates for those at more than 15 years’ call, we were on course for gender balance around the year 2100. This is not only an individual tragedy for those who have fought so hard for a career they love and can no longer sustain but has a knock-on effect on public confidence in a fair and modern profession, open to all.

COVID-19

While the current pandemic is having a significant impact on the whole Bar, the Bar Council has warned diversity and social mobility are likely to be major victims of the crisis. Lawyers from Black, Asian and other ethnic minority backgrounds, and state-educated barristers, are doubly hit by the reduction in work – by being more likely to practise in publicly funded work, and to face greater financial pressures. Proposals to extend working hours to address the case backlog will generate particular problems for those with caring responsibilities (more likely women), making a career in the profession ever more untenable – and placing those who will struggle to work longer hours in conflict with those across the Bar who understandably don’t like it – but want and need to get back to work to earn a living.

Responding to concerns that retention has improved little in the last few years, and more recent Bar Council research that the profession is even more perilous due to the toxic combination of COVID-19 and underfunding of the justice system, the Bar Standards Board is now interested in revisiting the original Bar Council Momentum Measures research, and is closely monitoring exit data (when members of the Bar cancel or fail to renew their practising certificate).

Exploring options to support careers at the Bar

In what now seems like a lifetime ago (last year), as we celebrated 100 years of women in the profession, we determined to commit to a long-term and sustained programme of work to give women – and all those from underrepresented backgrounds – the best possible chance to build a successful and sustainable career at the self-employed Bar.

With a forensic focus on ‘progression’, we determined what needed to be done to enable women to progress. To do this we spent a lot of time listening and talking to people across the Bar – barristers, clerks and practice managers at every level, those considering joining the profession and those who’ve tried it and left. The research revealed that there remain real barriers to the retention of women. We established that, while it is still the case that navigating maternity leave and returning to work while balancing caring for a family is a significant barrier, problems can start well before any career break. We acknowledged there is a huge variation in experience of women across the Bar; with increasing numbers of women thriving – though across every practice area, men still do better than women on every metric. We explored flexible working, which is still seen as a career inhibitor holding mothers back, establishing that the self-employed Bar has been slow to adopt and adapt to genuine flexible working (given the events of this year, it will be interesting to see how changes to ways of working caused by the coronavirus will impact flexible working in future). Significantly, we identified the wide variety of practices within different chambers as having a huge impact on the experience and progression of member barristers.

Our investigations confirmed our view that how work is distributed across the Bar reinforces unfairness. In some sets this is monitored closely, and practices are well managed, but in others it is clear barristers are still operating completely independently with little support. Client briefing practices were consistently brought up as a significant barrier to progression for women and other underrepresented groups. The legal directories too, were identified by some as deeply unfair, reinforcing privilege and disadvantage. And last but by no means least, that the structure and therefore culture of the self-employed Bar in particular, reinforces the idea that barristers don’t have to engage with the norms expected in other workplaces or organisational structures, and that this gets in the way of creative thinking about new structures, work patterns or compromises which could help make the profession more accessible or sustain greater diversity.

The Accelerator Programme

This research gave birth to ambitious plans, under the umbrella heading of the ‘Accelerator Programme’ designed to tackle these barriers – in a considered and sustained way – until we eventually make progress. Our priorities include: ensuring every barrister has fair access to work and opportunities; highlighting best practice in chambers and practice management; building support for the Young Bar, as well as strengthening mentoring and sponsorship at all levels; finding new ways of working and of course tackling discrimination, bullying, harassment and inappropriate behaviours.

Four of the interventions are focused on making sure work and opportunities are distributed fairly:

1. The First Seven Years project will help to get new barristers off to a strong start and includes developing better support for the Young Bar, particularly in practice development, access to work and wellbeing.

2. The Practice Management and Standards project will improve practice management across the Bar and includes reviewing allocation of work, fees and marketing.

3. The Legal Directories project will include developing interventions to ensure the directories better reflect the breadth of talent across the Bar;

4. The Client Briefing work will tackle discrimination in the way barristers are briefed and given work opportunities.

Other interventions are focused on increasing the support available to people at different stages of their career at the Bar and tackling behaviours which are holding people back:

5. Our Mentoring project includes ensuring appropriate and relevant mentoring is available to everyone who needs it;

6. The Flexible Working project involves bringing together experienced practitioners from across the Bar to develop effective models for flexible working;

7. Work on sexual harassment and bullying will be tackled head on with the help of experts in behaviour change, learning what works from other institutions;

8. And finally, promotion of the Women in Law pledge, which was launched last year by the legal professional bodies and is a way for chambers and employers to demonstrate commitment to gender equality.

All of the work will be supported by a communications programme (9) aimed at tackling attitudes and behaviours which block progress.

Fair access to work: four projects

It is clear that early career advantage and issues around fair allocation of work impact on barristers from all underrepresented groups including women, barristers from different ethnic backgrounds, and with different disabilities, as well as those from less privileged backgrounds. It is therefore a key pillar in supporting retention for others, not just women at the Bar.

Coming soon

  • An Insider Guide for new practitioners to help young barristers access the support they need to develop their careers as well as ongoing work alongside chambers to improve chambers’ approach to young barrister support, work allocation and marketing opportunities.
  • Practice management guidance and standards, working alongside chambers on practice management, fair allocation of work and marketing practices.
  • Work with the key legal directory publishers to adapt listing methodology and improve diversity of listings.
  • Client Briefing, working to increase uptake of equitable briefing practices – look out for our Work Distribution by Sex: Monitoring Toolkit (2020) this Autumn.

Finally, worth noting…

No single intervention or even a combination of the projects proposed will address the challenges we currently face as a profession. But we have to work together in the current difficult circumstances to protect the progress we have made – to ensure we still have a chance to create a Bar of all, for all. 

Events this summer, following the death of George Floyd, have rightly led to calls for a renewed focus on race. We do, however, believe that unpicking and tackling structures that disadvantage women – particularly around allocation of work – will benefit all underrepresented groups; though unique disadvantage faced by some ethnic groups needs complimentary and additional intervention which the Bar Council – working through a newly established Race Working Group is currently exploring.

For more information and to get involved contact: equality@barcouncil.org.uk
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Sam Mercer

Sam has been Head of Equality and Diversity at the Bar Council since June 2013. Prior to this she worked on a portfolio of consultancy projects for blue-chip companies, NHS Trusts, Charities and Government, was Workplace Director at Business in the Community (BITC) and was Chief Executive of the Employers Forum on Age (EFA).