*/
In July 2017 Public Law published an academic
paper Patronising Lawyers? Homophily and Same-Sex Litigation Teams before the UK Supreme Court which examined the gender of advocates appearing in
the Supreme Court, with an emphasis on same-sex litigation teams. While the
paper focused on patronage and gender bias within teams of advocates, it
appeared to the Bar Council’s Equality, Diversity and Social Mobility (‘EDSM’)
Committee that the collated data revealed a wider problem surrounding the
instruction of female junior advocates. One would expect the gender split among
Queen’s Counsel instructed in the Supreme Court to be stark, since at the
relevant time around 13% of those in silk were female, but the gender split
among junior counsel instructed might have been expected to reflect the 38.7%
of the junior Bar which was female according to the 2016 Bar Standards Board
Diversity Report; it did not.
The researchers had analysed every Supreme Court case since
its commencement in October 2009 up to summer 2015. There were 470 cases
involving 1,292 advocates. Examining each legal team, of 709 leading counsel,
94 were female (13.3%) – broadly in line with the proportion of female QCs. Of
the 709 first juniors in the Supreme Court, 203 were female (28.6%),
significantly out of kilter with the 38.7% of the junior Bar which was female.
On the face of it, the female junior Bar was significantly under-represented in
the Supreme Court, which necessarily deals with the most complex and
high-profile cases. As the EDSM Committee noted, 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. At the time I was at the Bar and was a
member of the EDSM Committee. Robin Allen QC, its Chair, asked me to examine
the issue further. The report that I subsequently prepared for the Committee
was then published in Counsel in April and May 2018; the editors have asked me
to revisit and update it.
The Homophily article threw up further concerning results when broken down into practice area. The authors had 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 ten years when compared to the civil jurisdiction. However, the Supreme Court data disclosed that while the proportion of women was highest in family cases (around 34%) – in line with anecdotal evidence – it was lowest in criminal cases: just 11.5% of the advocates were female. This was worse even than in tax and chancery where women comprised 16% of the instructed advocates.
"For how much longer can the Bar inch its way towards equality before the current inequity is judged not to be just an unfortunate hang-over from history, but institutional?"
I asked one of the article’s authors, Professor Chris
Hanretty, if he had drawn any conclusions from the data as to why this should
be. He told me that many of the criminal cases in the Supreme Court concerned
complex fraud or confiscation under the Proceeds of Crime Act 2002 (‘POCA’); he
said that his evidence implied that female advocates rarely appeared in such
cases. This was troubling, since complex fraud is by far the most remunerative
area of crime. Professor Hanretty kindly sent me his data; analysis revealed
that in the 19 criminal cases heard in the Supreme Court to summer 2015, there
were 105 advocates. Of 53 Queen’s Counsel instructed, two were female (3.7%).
Of 52 junior counsel, nine were female (including one second junior) (17.3%).
Following the Professor’s comment regarding male domination
within complex financial crime, I reviewed each case individually. Of the 19
cases, six related to POCA, one to confiscation in Northern Ireland, two to
terror or national security, four to serious fraud and corruption. In the six
POCA cases, of 35 advocates, one was female (2.8%), and she was the second
junior for the intervener. In the four serious fraud/corruption cases, two of 26
advocates 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.
This prompted an examination of earnings. The vast majority
of criminal work is publicly funded; the Legal Aid Agency (LAA) and the Crown
Prosecution Service (CPS) were both generous enough to collate and then provide
me with their respective data. In brief, looking at the highest paid criminal
defence advocates for the six financial years from 2011-12 to 2016-17 the mean
number of women in the top 500 earners per annum was 69 (14%). The mean number
of women in the top 100 was six. On the prosecution side, I was given the data
for the five years from 2012-13 to 2016-17. The mean number of women in the top
500 earners was 100, and in the top 100 it was 15.
Anecdotal evidence that female barristers do not have equal
access to the more remunerative and more complex work has long existed; but
anecdotal evidence is easily explained, justified or dismissed. The Supreme
Court data, together with the comprehensive data set from the LAA and the CPS
showing every payment to every fee-earner, provided empirical evidence that
reflected a deep gender pay imbalance within the criminal Bar at least.
In the 2018 EDSM Committee report I commented on the future
of the Bar as the traditional and preferred pool for judicial appointment to
the Circuit and High Court bench should it continue to fail to address
imbalance and inequity. I predicted that the Judicial Appointments Commission
would turn to more gender-diverse pools should the Bar continue to lose good
women from the five-year call point – after all, these clever, talented and
dedicated women are going somewhere. In the circuit judge competition that
year, 45% of those recommended for immediate appointment were already salaried
judicial office holders; in addition, all six applicants placed on the s 94
list were salaried judicial office holders. 28% of last year’s circuit judge
appointments were salaried judicial office holders; an unprecedented 11% of
appointments were solicitors at the time of application. In common with the Law
Society, the tribunals and the district bench have a significantly more
gender-diverse population than the self-employed Bar.
The Chair of the EDSM Committee Robin Allen QC has long
been alive to some of the failings of the Bar in preparing those who are most
unrepresented in the judiciary to consider application. Through the Judicial
Diversity Forum his Pre-Application Judicial Education initiative (PAJE)
comprises a programme of workshops developed by the Judicial College offered to
four under-represented groups, one of which is ‘all female lawyers’. Such
initiatives are much-needed, and long overdue, as reflected by the fact that
there have been more than twice as many applicants as places on the first
course which commenced this autumn. However, if women continue to feel they do
not have equal access to the best work, they will continue to feel that their
practice and experience are inadequate to found applications either for silk or
for the judiciary.
My 2018 report for the Committee ended with the following
observations: ‘Heads of Chambers, Practice Managers and Senior Clerks need to
take hold of this issue now and address it. How effectively are their Chambers
retaining women? Are their Chambers paying more than mere lip-service to the
Equality Rules? How well do they support practitioners in meeting family
commitments? What measures are put in place to ensure that those on
maternity/paternity leave are able to hit the ground running on their return?
What strategies have they conceived to assist those young juniors who are
marked out as possible future candidates for silk to build the skills,
experience and then the portfolio that will in due course enable them to make
strong application? What policies are there regarding remuneration of juniors
to ensure equality between the sexes? If individual Chambers do not soon step
up effectively to meet their equality obligations then it is difficult to see
how the current significant imbalance will easily – or ever – be corrected.’
A month later, in May 2018, the Bar Standards Board
published Women at the Bar: Research exploring solutions to promote gender
equality. It observed: ‘A quantitative analysis [conducted by the Bar Council]
found that, notwithstanding the current parity in the numbers of men and women
called to the Bar, a 50:50 gender balance among all practising barristers is
unlikely ever to be achieved [based on the current model of practice].’
My report had focused on fair access to work in crime due
to both the nature of the Supreme Court data and the unique accessibility of
income information afforded by this practice area. Subsequently similar
research has been undertaken in other areas of practice. Without transparency
of earnings it is not easy to obtain empirical evidence supporting or
undermining a suspicion of deep gender imbalance. In July 2019, The Lawyer magazine reported that
analysis through its Litigation Tracker data of the commercial Bar revealed
that the most active litigation firms instructed a total of 810 barristers – of
whom only 19% were women.
In October 2018 the then President of the Employment Appeal
Tribunal (EAT), Lady Justice Simler and EAT circuit judge HHJ Eady QC noted
that of 38 applications for silk from employment lawyers that year only five
were from women. This seemed out of step because, again anecdotally, the employment
Bar is regarded as a practice area where women traditionally do well. These two
senior judges’ concerns led to a series of meetings with the employment and
wider Bar wherein female barristers shared their experiences. The common theme
was a feeling of being shut out from quality work equivalent to experience. One
stark term used by a commercial barrister in The Lawyer article to describe the work given to women was
‘washing-up law’. That phrase seemed to strike a chord – others have
subsequently complained of being instructed in largely ‘house-keeping work’.
Lady Hale, interviewed by The Times (March 2019) repeated anecdotal evidence that she had obtained to the effect that women barristers do not consider that they receive instructions correspondent with their experience and expertise; and were being charged out at lower fees than their male colleagues. But was there empirical evidence to support or to counter these expressions of unease?
“The paucity of female silks is noted as being a barrier to these firms, who want to be able to demonstrate internally and externally that they are gender-equal not just in-house, but in their instructed counsel”
The Lawyer used data from its Litigation Tracker to conclude that of
577 barristers active in the EAT and in employment cases in the Court of Appeal
between 2015 and the first quarter of 2019, 174 (30%) were female. Of the
junior barristers, 32% were women. Deeper analysis suggested that women are
undertaking a disproportionate amount of claimant-focused and pro-bono work,
while men have the lion’s share of the corporate respondents (and the
corresponding higher brief fees). The
Lawyer also analysed the gender patterns by chambers, finding a wide
variance (see below). The set that came out head and shoulders above the rest
was Cloisters, which achieves near parity of instruction at the junior end,
including corporate clients. Cloisters has clear policies on recruitment and on
fair access to work, which it continually monitors, and appears to have in
place all of the procedures that the 2018 EDSM report recommended should be in
place. While this is perhaps unsurprising since the head of the EDSM Committee
is also a longstanding and senior member of Cloisters, it demonstrates what is
achievable when policies surrounding fairness and equality are implemented and
monitored. (Its strategies are shared in ‘A Bar for all with fair work
distribution’, by Anna Beale and Claire McCann of Cloisters in this issue of Counsel.)
There is no reason for any chambers not to adopt the
Cloisters model or similar. And they are going to have to. This issue has
gained more and more traction over the last year, driven by statistical
analyses and data-mining resulting in empirical evidence, and by such
initiatives as Women in the Law, the Law Society’s Women in Leadership in Law,
and the First 100 Years project. In August 2019 the Financial Times reported
that Magic Circle law firms including Clifford Chance, Allen & Overy and
Freshfields are now insisting on a gender-diverse list when instructing
counsel, as are banking institutions including Lloyds and Barclays, with
diversity being closely monitored. The paucity of female silks is noted as being
a barrier to these firms, who want to be able to demonstrate internally and
externally that they are gender-equal not just in-house, but in their
instructed counsel. It seems likely that commercial sets without a diverse
gender pool at all levels will soon find themselves losing work to more
gender-equal sets; market forces may well succeed where various Bar Council and
BSB equality initiatives have to date apparently failed.
The EDSM Committee remains active on this. Dee Masters, a
barrister at Cloisters and member of the EDSM Committee, is heading an
initiative examining pay issues at the Bar and the extent to which gender plays
a role in billing. A survey will shortly be sent out to chambers’ Equality and
Diversity Officers and to barristers to gather evidence on how (if at all)
billings are monitored from a gender perspective. The Committee will then
produce a guide to chambers to assist with effective monitoring of the
relationship between billings and gender. Dee tells me, ‘We hope that by looking
at pay, we will shine a spotlight on access to work because of the obvious
connection between the two.’
Returning to the criminal Bar, has there been any progress
in the 18 months since publication of the EDSM report? Once again, I am
indebted to the LAA statistics team and their counterparts at the CPS for
providing me with full datasets for each of the last two financial years, which
comprise every payment from the public purse to defence and prosecution
advocates, with the exception of SFO prosecutions.
Looking at criminal defence, in 2017-2018 of the highest
paid 500 advocates 59 were women (11.8%). There were nine women in the highest
paid 100 advocates, but none in the top 20; the highest paid female advocate
was at number 27. In 2018-2019 matters improved: there were 88 women in the top
500 (17.6%), and 12 in the top 100. The highest paid female advocate was at
number two, and there were three more women in the top 30 (at 17, 19 and 21).
Data from the CPS reveals that in 2017-2018 there were 98
women in the top 500 and 14 in the top 100. Men completely dominated the top
30, with the highest paid female advocate at number 36, and the second highest
paid at number 50. In 2018-19 there were 102 women in the top 500, and 19 in
the top 100. The highest paid woman made it into the top 20 – just coming in at
number 19.
Separate analysis of defence and prosecution incomes may
paint a more favourable picture than in fact exists. It is possible to
extrapolate from an amalgamation of the CPS and LAA data the top 300 publicly
funded criminal advocates with negligible risk of double counting. In 2017-18
just seven of the top 100, and 34 of the top 300 highest paid criminal
advocates were female (the highest earning woman was placed at 44). In 2018-19
eleven of the top 100, and just 29 of the highest paid 300 criminal advocates
were female (the highest paid woman made number two this year). Can the Bar
excuse these figures – in a practice area which is anecdotally regarded as
providing a more level playing field than others? For how much longer can the
Bar inch its way towards equality before the current inequity is judged not to
be just an unfortunate hang-over from history, but institutional?
Now that big city firms and financial institutions are
waking up to gender diversity when instructing outside counsel in the civil
jurisdiction, I suspect that central and local government may follow their
example when instructing in environmental matters, care proceedings, judicial
reviews, etc. The CPS operates an equal opportunities policy in-house; will it
now also require gender-diverse lists from chambers at all prosecuting grades?
How soon will it be before the LAA requires evidence of equality in instruction
across all categories of offence when considering whether it should award or
renew legal aid contracts? Whether or not the criminal Bar as an entity is
prepared to tolerate inequity, its main paymaster is unlikely to for much
longer. This imbalance is not just a problem for the 39% of the profession that
is female. If the Bar Council prediction is right – that gender equality can
never be achieved based on the current model of practice – then the model is
inherently flawed.
IMAGE: Women
remain under-represented in silk and on the Bench. Pictured: Judges and QCs
leave Westminster Abbey following the Opening of the Legal Year ceremony on 1
October 2019 in London.
● Read more of HHJ Emma Nott’s analysis on
counselmagazine.co.uk: Gender at the Bar and fair access to work (1) & (2)
April and May 2018
The big data picture: gendered instructions at the employment Bar
A complex
landscape, but conclusions can be drawn: The
Lawyer
The following is
an edited extract from ‘The long read: How gendered instructions at the
employment Bar are scuppering female barristers’ ambitions for silk’, by
Beatriz Veyrat, Amar Mehta & Catrin Griffiths and published in The Lawyer, July/August 2019. The full
article, which can be accessed on thelawer.com,
includes detailed analysis by set and by barrister.
Is the system conspiring against female barristers? What
sort of work are female barristers getting – and not getting? Who is
instructing them? Which chambers has the best record in female representation
at the employment Bar, and which has the poorest? Which law firms opt primarily
for male counsel? The Lawyer’s analysis of gendered instructions at the
employment Bar weighs up the evidence and draws on The Lawyer’s Litigation
Tracker data relating primarily to the EAT and employment-related cases at the
Court of Appeal, 2015 to the end of Q1 2019.
While the data set does not include a full list of
employment-related injunctions, for example, or advice outside the courtroom,
it is large enough to gauge patterns. We used two lenses: first we looked at
the chambers most active in those courts, placing their barristers’ frequency
of instructions in the context of existing gender demographics at those sets.
Then we examined the most active firms and their gender-patterns of
instructions across all the sets used.
EAT is
male-dominated
There were 577 barristers active at the EAT in this time
period. Even at first glance, the gender split is markedly in favour of men,
with 74 male QCs and 329 male juniors active in that time period compared to 15
female QCs and 159 female juniors. To translate those figures into percentages,
15 female silks represents 2.5% of the total barristers active in the EAT; 159
female juniors represent 27.5%. Meanwhile, 74 male silks represent 12.8% of the
total. But taking the lion’s share of counsel being instructed for EAT work –
57% – are the 329 male juniors. The gender disparity in court work from the
junior end, as barristers begin to forge their careers, immediately makes
itself clear.
The lack of women in the senior ranks of the employment Bar
can be seen in granular detail. Of the top 20 chambers (measured by number of
cases), 13 on the EAT do not have a female silk active in it (see table at the end of this article and the attachment).
If we look at the 10 busiest female juniors by cases in the
EAT, it quickly becomes apparent that they are mostly being instructed to
appear on behalf of claiming parties (usually individuals) rather than
corporate respondents. Out of a total of 72 cases, they represented the claiming
or appellant party in 40. They mainly represented individual appellants as sole
counsel, and appeared on behalf of corporate appellants in 11 cases. They
represented the respondents in 30 cases and did more pro bono work than any of
their peer groups. They were led in 13 of these 72 cases, most often when
instructed by the GLD on behalf of the Ministry of Justice or the Lord
Chancellor.
Gender patterns
vary dramatically from set to set
While the figures based on individuals tell a tale of
claimant-focused work undertaken by female juniors, we have to remember that
most barristers’ work is directed to them via their chambers, and it is through
these clusters of instructions that we can see other important patterns. In
examining the gender split within the EAT cases across the most active
chambers, it is clear from the evidence that female employment barristers are
more likely to find themselves in the EAT (and Court of Appeal) if they are
fortunate enough to have tenancy at Cloisters.
Cloisters is the most active set at the EAT by both number
of cases and case days. A total of 44 of its barristers were involved on 126
cases across 151 case days between 2015 and Q1 2019. The male/female gender
split in its EAT cases is 60/40 across all the barristers at the chambers, but
it is at the junior end where there is near-parity, with 18 male juniors and 15
female juniors active in this time period. What is striking about Cloisters is
its relatively high female demographic compared to many other chambers. It has
15 silks in total, of whom four are female: plus 38 juniors (19 female).
Cloisters receives a wide spread of work, for both
claimants/individuals, and corporates or public bodies. But is there a gender
split in terms of type of client? Not on this evidence. If we look across the
claimant-firm instructions, Cloisters’ male juniors were marginally more active
than female. But what of work for corporate clients? Cloisters’ female juniors
had marginally more visibility among City firms than the male juniors in this
period.
Several members have flexible working arrangements, but
that is not uncommon at other sets. What appears to have made a difference at
Cloisters is its recruitment policy – it has a cluster of female juniors of
between seven and 11 years’ call, although at the very junior end is entirely
male – and secondly, its directional approach. Its central management monitors
trends in allocation of work by protected characteristics, including sex, and
states that it takes remedial action if that monitoring shows any areas of
concern.
Are claimant
firms opting for male silks?
The 10 most active law firms in the EAT are Capsticks,
Clyde & Co, DAC Beachcroft, Eversheds Sutherland, Leigh Day, Pinsent
Masons,Slater and Gordon, Squire Patton Boggs, Thompsons, and Weightmans.
A total of 27 silks were instructed by the top 10 most
active law firms in the EAT over 2015-2019. Of that total, just four were
women. The data paints a mixed picture of claimant-focused firms but one thing
is evident: they tend to plump for male silks at the EAT. For example, trade
union firm Thompsons instructed 24 barristers in the EAT. Of these 24, there
were nine female juniors and 14 male. The most senior barrister instructed in
the EAT by Thompsons was a male silk. The firm instructed no female silks to
act in the EAT.
Slater and Gordon ranked fourth by number of cases,
instructing 22 barristers. Of these, eight were female juniors and six were
male juniors. On the QC side, however, men dominated instructions, with six
male silks and two female.
Claimant-focused Leigh Day ranked seventh out of 10 in the
EAT by number of cases and instructed a total of 16 barristers. While at the
junior end women dominate – the firm instructed six female juniors and three
male juniors – at the senior end, male QCs again outnumbered female. Of the
seven silks Leigh Day instructed to act in the EAT, five were men and two were
women.
The top 10 male silks (by number of cases) accounted for a
total of 75 instructions. Male silks are given the opportunity to lead junior
barristers more frequently than their female counterparts and, more often than
not, the junior who is led by a particular silk will be a male junior. The
relative lack of female QCs means that when female juniors are led by a silk,
more often than not they are led by a male silk (almost exclusively, in fact).
In total, the 20 most active male silks on employment cases
in the CA worked on 82 cases. More often than not, the 20 silks acted for
corporate and government/regulatory entities (52 cases out of 82). The 20 silks
led juniors in 49 out of 82 cases – and indeed, as Hanretty and Vaughan’s
Homophily research indicated, overall male silks are more likely to instruct
male juniors. Of the 49 cases in which junior(s) were paired with a silk, 38
involved at least one male junior. Four out of 39 times that male junior was
paired with one or more female juniors. Mixed teams aside, overall female
juniors are still less likely to be selected as junior counsel for silks. Of
the 82 cases, female juniors were only instructed 15 times.
If we cut the Litigation Tracker data by chambers, we can
see patterns of crossgender pairings in certain sets. For example, of all the
sets active in the Court of Appeal on employment cases, 11KBW looks to be the
most inclusive. Three of the set’s male silks made it into the top 20 most
active and overall have a good record for instructing female juniors,
suggesting that the set’s culture is more open than that of its competitors.
11KBW has also had some success in supporting its female barristers into silk;
all three of its female QCs (out of a total of 19 at the set) have been recent
appointments.
HHJ Nott 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.
In July 2017 Public Law published an academic
paper Patronising Lawyers? Homophily and Same-Sex Litigation Teams before the UK Supreme Court which examined the gender of advocates appearing in
the Supreme Court, with an emphasis on same-sex litigation teams. While the
paper focused on patronage and gender bias within teams of advocates, it
appeared to the Bar Council’s Equality, Diversity and Social Mobility (‘EDSM’)
Committee that the collated data revealed a wider problem surrounding the
instruction of female junior advocates. One would expect the gender split among
Queen’s Counsel instructed in the Supreme Court to be stark, since at the
relevant time around 13% of those in silk were female, but the gender split
among junior counsel instructed might have been expected to reflect the 38.7%
of the junior Bar which was female according to the 2016 Bar Standards Board
Diversity Report; it did not.
The researchers had analysed every Supreme Court case since
its commencement in October 2009 up to summer 2015. There were 470 cases
involving 1,292 advocates. Examining each legal team, of 709 leading counsel,
94 were female (13.3%) – broadly in line with the proportion of female QCs. Of
the 709 first juniors in the Supreme Court, 203 were female (28.6%),
significantly out of kilter with the 38.7% of the junior Bar which was female.
On the face of it, the female junior Bar was significantly under-represented in
the Supreme Court, which necessarily deals with the most complex and
high-profile cases. As the EDSM Committee noted, 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. At the time I was at the Bar and was a
member of the EDSM Committee. Robin Allen QC, its Chair, asked me to examine
the issue further. The report that I subsequently prepared for the Committee
was then published in Counsel in April and May 2018; the editors have asked me
to revisit and update it.
The Homophily article threw up further concerning results when broken down into practice area. The authors had 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 ten years when compared to the civil jurisdiction. However, the Supreme Court data disclosed that while the proportion of women was highest in family cases (around 34%) – in line with anecdotal evidence – it was lowest in criminal cases: just 11.5% of the advocates were female. This was worse even than in tax and chancery where women comprised 16% of the instructed advocates.
"For how much longer can the Bar inch its way towards equality before the current inequity is judged not to be just an unfortunate hang-over from history, but institutional?"
I asked one of the article’s authors, Professor Chris
Hanretty, if he had drawn any conclusions from the data as to why this should
be. He told me that many of the criminal cases in the Supreme Court concerned
complex fraud or confiscation under the Proceeds of Crime Act 2002 (‘POCA’); he
said that his evidence implied that female advocates rarely appeared in such
cases. This was troubling, since complex fraud is by far the most remunerative
area of crime. Professor Hanretty kindly sent me his data; analysis revealed
that in the 19 criminal cases heard in the Supreme Court to summer 2015, there
were 105 advocates. Of 53 Queen’s Counsel instructed, two were female (3.7%).
Of 52 junior counsel, nine were female (including one second junior) (17.3%).
Following the Professor’s comment regarding male domination
within complex financial crime, I reviewed each case individually. Of the 19
cases, six related to POCA, one to confiscation in Northern Ireland, two to
terror or national security, four to serious fraud and corruption. In the six
POCA cases, of 35 advocates, one was female (2.8%), and she was the second
junior for the intervener. In the four serious fraud/corruption cases, two of 26
advocates 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.
This prompted an examination of earnings. The vast majority
of criminal work is publicly funded; the Legal Aid Agency (LAA) and the Crown
Prosecution Service (CPS) were both generous enough to collate and then provide
me with their respective data. In brief, looking at the highest paid criminal
defence advocates for the six financial years from 2011-12 to 2016-17 the mean
number of women in the top 500 earners per annum was 69 (14%). The mean number
of women in the top 100 was six. On the prosecution side, I was given the data
for the five years from 2012-13 to 2016-17. The mean number of women in the top
500 earners was 100, and in the top 100 it was 15.
Anecdotal evidence that female barristers do not have equal
access to the more remunerative and more complex work has long existed; but
anecdotal evidence is easily explained, justified or dismissed. The Supreme
Court data, together with the comprehensive data set from the LAA and the CPS
showing every payment to every fee-earner, provided empirical evidence that
reflected a deep gender pay imbalance within the criminal Bar at least.
In the 2018 EDSM Committee report I commented on the future
of the Bar as the traditional and preferred pool for judicial appointment to
the Circuit and High Court bench should it continue to fail to address
imbalance and inequity. I predicted that the Judicial Appointments Commission
would turn to more gender-diverse pools should the Bar continue to lose good
women from the five-year call point – after all, these clever, talented and
dedicated women are going somewhere. In the circuit judge competition that
year, 45% of those recommended for immediate appointment were already salaried
judicial office holders; in addition, all six applicants placed on the s 94
list were salaried judicial office holders. 28% of last year’s circuit judge
appointments were salaried judicial office holders; an unprecedented 11% of
appointments were solicitors at the time of application. In common with the Law
Society, the tribunals and the district bench have a significantly more
gender-diverse population than the self-employed Bar.
The Chair of the EDSM Committee Robin Allen QC has long
been alive to some of the failings of the Bar in preparing those who are most
unrepresented in the judiciary to consider application. Through the Judicial
Diversity Forum his Pre-Application Judicial Education initiative (PAJE)
comprises a programme of workshops developed by the Judicial College offered to
four under-represented groups, one of which is ‘all female lawyers’. Such
initiatives are much-needed, and long overdue, as reflected by the fact that
there have been more than twice as many applicants as places on the first
course which commenced this autumn. However, if women continue to feel they do
not have equal access to the best work, they will continue to feel that their
practice and experience are inadequate to found applications either for silk or
for the judiciary.
My 2018 report for the Committee ended with the following
observations: ‘Heads of Chambers, Practice Managers and Senior Clerks need to
take hold of this issue now and address it. How effectively are their Chambers
retaining women? Are their Chambers paying more than mere lip-service to the
Equality Rules? How well do they support practitioners in meeting family
commitments? What measures are put in place to ensure that those on
maternity/paternity leave are able to hit the ground running on their return?
What strategies have they conceived to assist those young juniors who are
marked out as possible future candidates for silk to build the skills,
experience and then the portfolio that will in due course enable them to make
strong application? What policies are there regarding remuneration of juniors
to ensure equality between the sexes? If individual Chambers do not soon step
up effectively to meet their equality obligations then it is difficult to see
how the current significant imbalance will easily – or ever – be corrected.’
A month later, in May 2018, the Bar Standards Board
published Women at the Bar: Research exploring solutions to promote gender
equality. It observed: ‘A quantitative analysis [conducted by the Bar Council]
found that, notwithstanding the current parity in the numbers of men and women
called to the Bar, a 50:50 gender balance among all practising barristers is
unlikely ever to be achieved [based on the current model of practice].’
My report had focused on fair access to work in crime due
to both the nature of the Supreme Court data and the unique accessibility of
income information afforded by this practice area. Subsequently similar
research has been undertaken in other areas of practice. Without transparency
of earnings it is not easy to obtain empirical evidence supporting or
undermining a suspicion of deep gender imbalance. In July 2019, The Lawyer magazine reported that
analysis through its Litigation Tracker data of the commercial Bar revealed
that the most active litigation firms instructed a total of 810 barristers – of
whom only 19% were women.
In October 2018 the then President of the Employment Appeal
Tribunal (EAT), Lady Justice Simler and EAT circuit judge HHJ Eady QC noted
that of 38 applications for silk from employment lawyers that year only five
were from women. This seemed out of step because, again anecdotally, the employment
Bar is regarded as a practice area where women traditionally do well. These two
senior judges’ concerns led to a series of meetings with the employment and
wider Bar wherein female barristers shared their experiences. The common theme
was a feeling of being shut out from quality work equivalent to experience. One
stark term used by a commercial barrister in The Lawyer article to describe the work given to women was
‘washing-up law’. That phrase seemed to strike a chord – others have
subsequently complained of being instructed in largely ‘house-keeping work’.
Lady Hale, interviewed by The Times (March 2019) repeated anecdotal evidence that she had obtained to the effect that women barristers do not consider that they receive instructions correspondent with their experience and expertise; and were being charged out at lower fees than their male colleagues. But was there empirical evidence to support or to counter these expressions of unease?
“The paucity of female silks is noted as being a barrier to these firms, who want to be able to demonstrate internally and externally that they are gender-equal not just in-house, but in their instructed counsel”
The Lawyer used data from its Litigation Tracker to conclude that of
577 barristers active in the EAT and in employment cases in the Court of Appeal
between 2015 and the first quarter of 2019, 174 (30%) were female. Of the
junior barristers, 32% were women. Deeper analysis suggested that women are
undertaking a disproportionate amount of claimant-focused and pro-bono work,
while men have the lion’s share of the corporate respondents (and the
corresponding higher brief fees). The
Lawyer also analysed the gender patterns by chambers, finding a wide
variance (see below). The set that came out head and shoulders above the rest
was Cloisters, which achieves near parity of instruction at the junior end,
including corporate clients. Cloisters has clear policies on recruitment and on
fair access to work, which it continually monitors, and appears to have in
place all of the procedures that the 2018 EDSM report recommended should be in
place. While this is perhaps unsurprising since the head of the EDSM Committee
is also a longstanding and senior member of Cloisters, it demonstrates what is
achievable when policies surrounding fairness and equality are implemented and
monitored. (Its strategies are shared in ‘A Bar for all with fair work
distribution’, by Anna Beale and Claire McCann of Cloisters in this issue of Counsel.)
There is no reason for any chambers not to adopt the
Cloisters model or similar. And they are going to have to. This issue has
gained more and more traction over the last year, driven by statistical
analyses and data-mining resulting in empirical evidence, and by such
initiatives as Women in the Law, the Law Society’s Women in Leadership in Law,
and the First 100 Years project. In August 2019 the Financial Times reported
that Magic Circle law firms including Clifford Chance, Allen & Overy and
Freshfields are now insisting on a gender-diverse list when instructing
counsel, as are banking institutions including Lloyds and Barclays, with
diversity being closely monitored. The paucity of female silks is noted as being
a barrier to these firms, who want to be able to demonstrate internally and
externally that they are gender-equal not just in-house, but in their
instructed counsel. It seems likely that commercial sets without a diverse
gender pool at all levels will soon find themselves losing work to more
gender-equal sets; market forces may well succeed where various Bar Council and
BSB equality initiatives have to date apparently failed.
The EDSM Committee remains active on this. Dee Masters, a
barrister at Cloisters and member of the EDSM Committee, is heading an
initiative examining pay issues at the Bar and the extent to which gender plays
a role in billing. A survey will shortly be sent out to chambers’ Equality and
Diversity Officers and to barristers to gather evidence on how (if at all)
billings are monitored from a gender perspective. The Committee will then
produce a guide to chambers to assist with effective monitoring of the
relationship between billings and gender. Dee tells me, ‘We hope that by looking
at pay, we will shine a spotlight on access to work because of the obvious
connection between the two.’
Returning to the criminal Bar, has there been any progress
in the 18 months since publication of the EDSM report? Once again, I am
indebted to the LAA statistics team and their counterparts at the CPS for
providing me with full datasets for each of the last two financial years, which
comprise every payment from the public purse to defence and prosecution
advocates, with the exception of SFO prosecutions.
Looking at criminal defence, in 2017-2018 of the highest
paid 500 advocates 59 were women (11.8%). There were nine women in the highest
paid 100 advocates, but none in the top 20; the highest paid female advocate
was at number 27. In 2018-2019 matters improved: there were 88 women in the top
500 (17.6%), and 12 in the top 100. The highest paid female advocate was at
number two, and there were three more women in the top 30 (at 17, 19 and 21).
Data from the CPS reveals that in 2017-2018 there were 98
women in the top 500 and 14 in the top 100. Men completely dominated the top
30, with the highest paid female advocate at number 36, and the second highest
paid at number 50. In 2018-19 there were 102 women in the top 500, and 19 in
the top 100. The highest paid woman made it into the top 20 – just coming in at
number 19.
Separate analysis of defence and prosecution incomes may
paint a more favourable picture than in fact exists. It is possible to
extrapolate from an amalgamation of the CPS and LAA data the top 300 publicly
funded criminal advocates with negligible risk of double counting. In 2017-18
just seven of the top 100, and 34 of the top 300 highest paid criminal
advocates were female (the highest earning woman was placed at 44). In 2018-19
eleven of the top 100, and just 29 of the highest paid 300 criminal advocates
were female (the highest paid woman made number two this year). Can the Bar
excuse these figures – in a practice area which is anecdotally regarded as
providing a more level playing field than others? For how much longer can the
Bar inch its way towards equality before the current inequity is judged not to
be just an unfortunate hang-over from history, but institutional?
Now that big city firms and financial institutions are
waking up to gender diversity when instructing outside counsel in the civil
jurisdiction, I suspect that central and local government may follow their
example when instructing in environmental matters, care proceedings, judicial
reviews, etc. The CPS operates an equal opportunities policy in-house; will it
now also require gender-diverse lists from chambers at all prosecuting grades?
How soon will it be before the LAA requires evidence of equality in instruction
across all categories of offence when considering whether it should award or
renew legal aid contracts? Whether or not the criminal Bar as an entity is
prepared to tolerate inequity, its main paymaster is unlikely to for much
longer. This imbalance is not just a problem for the 39% of the profession that
is female. If the Bar Council prediction is right – that gender equality can
never be achieved based on the current model of practice – then the model is
inherently flawed.
IMAGE: Women
remain under-represented in silk and on the Bench. Pictured: Judges and QCs
leave Westminster Abbey following the Opening of the Legal Year ceremony on 1
October 2019 in London.
● Read more of HHJ Emma Nott’s analysis on
counselmagazine.co.uk: Gender at the Bar and fair access to work (1) & (2)
April and May 2018
The big data picture: gendered instructions at the employment Bar
A complex
landscape, but conclusions can be drawn: The
Lawyer
The following is
an edited extract from ‘The long read: How gendered instructions at the
employment Bar are scuppering female barristers’ ambitions for silk’, by
Beatriz Veyrat, Amar Mehta & Catrin Griffiths and published in The Lawyer, July/August 2019. The full
article, which can be accessed on thelawer.com,
includes detailed analysis by set and by barrister.
Is the system conspiring against female barristers? What
sort of work are female barristers getting – and not getting? Who is
instructing them? Which chambers has the best record in female representation
at the employment Bar, and which has the poorest? Which law firms opt primarily
for male counsel? The Lawyer’s analysis of gendered instructions at the
employment Bar weighs up the evidence and draws on The Lawyer’s Litigation
Tracker data relating primarily to the EAT and employment-related cases at the
Court of Appeal, 2015 to the end of Q1 2019.
While the data set does not include a full list of
employment-related injunctions, for example, or advice outside the courtroom,
it is large enough to gauge patterns. We used two lenses: first we looked at
the chambers most active in those courts, placing their barristers’ frequency
of instructions in the context of existing gender demographics at those sets.
Then we examined the most active firms and their gender-patterns of
instructions across all the sets used.
EAT is
male-dominated
There were 577 barristers active at the EAT in this time
period. Even at first glance, the gender split is markedly in favour of men,
with 74 male QCs and 329 male juniors active in that time period compared to 15
female QCs and 159 female juniors. To translate those figures into percentages,
15 female silks represents 2.5% of the total barristers active in the EAT; 159
female juniors represent 27.5%. Meanwhile, 74 male silks represent 12.8% of the
total. But taking the lion’s share of counsel being instructed for EAT work –
57% – are the 329 male juniors. The gender disparity in court work from the
junior end, as barristers begin to forge their careers, immediately makes
itself clear.
The lack of women in the senior ranks of the employment Bar
can be seen in granular detail. Of the top 20 chambers (measured by number of
cases), 13 on the EAT do not have a female silk active in it (see table at the end of this article and the attachment).
If we look at the 10 busiest female juniors by cases in the
EAT, it quickly becomes apparent that they are mostly being instructed to
appear on behalf of claiming parties (usually individuals) rather than
corporate respondents. Out of a total of 72 cases, they represented the claiming
or appellant party in 40. They mainly represented individual appellants as sole
counsel, and appeared on behalf of corporate appellants in 11 cases. They
represented the respondents in 30 cases and did more pro bono work than any of
their peer groups. They were led in 13 of these 72 cases, most often when
instructed by the GLD on behalf of the Ministry of Justice or the Lord
Chancellor.
Gender patterns
vary dramatically from set to set
While the figures based on individuals tell a tale of
claimant-focused work undertaken by female juniors, we have to remember that
most barristers’ work is directed to them via their chambers, and it is through
these clusters of instructions that we can see other important patterns. In
examining the gender split within the EAT cases across the most active
chambers, it is clear from the evidence that female employment barristers are
more likely to find themselves in the EAT (and Court of Appeal) if they are
fortunate enough to have tenancy at Cloisters.
Cloisters is the most active set at the EAT by both number
of cases and case days. A total of 44 of its barristers were involved on 126
cases across 151 case days between 2015 and Q1 2019. The male/female gender
split in its EAT cases is 60/40 across all the barristers at the chambers, but
it is at the junior end where there is near-parity, with 18 male juniors and 15
female juniors active in this time period. What is striking about Cloisters is
its relatively high female demographic compared to many other chambers. It has
15 silks in total, of whom four are female: plus 38 juniors (19 female).
Cloisters receives a wide spread of work, for both
claimants/individuals, and corporates or public bodies. But is there a gender
split in terms of type of client? Not on this evidence. If we look across the
claimant-firm instructions, Cloisters’ male juniors were marginally more active
than female. But what of work for corporate clients? Cloisters’ female juniors
had marginally more visibility among City firms than the male juniors in this
period.
Several members have flexible working arrangements, but
that is not uncommon at other sets. What appears to have made a difference at
Cloisters is its recruitment policy – it has a cluster of female juniors of
between seven and 11 years’ call, although at the very junior end is entirely
male – and secondly, its directional approach. Its central management monitors
trends in allocation of work by protected characteristics, including sex, and
states that it takes remedial action if that monitoring shows any areas of
concern.
Are claimant
firms opting for male silks?
The 10 most active law firms in the EAT are Capsticks,
Clyde & Co, DAC Beachcroft, Eversheds Sutherland, Leigh Day, Pinsent
Masons,Slater and Gordon, Squire Patton Boggs, Thompsons, and Weightmans.
A total of 27 silks were instructed by the top 10 most
active law firms in the EAT over 2015-2019. Of that total, just four were
women. The data paints a mixed picture of claimant-focused firms but one thing
is evident: they tend to plump for male silks at the EAT. For example, trade
union firm Thompsons instructed 24 barristers in the EAT. Of these 24, there
were nine female juniors and 14 male. The most senior barrister instructed in
the EAT by Thompsons was a male silk. The firm instructed no female silks to
act in the EAT.
Slater and Gordon ranked fourth by number of cases,
instructing 22 barristers. Of these, eight were female juniors and six were
male juniors. On the QC side, however, men dominated instructions, with six
male silks and two female.
Claimant-focused Leigh Day ranked seventh out of 10 in the
EAT by number of cases and instructed a total of 16 barristers. While at the
junior end women dominate – the firm instructed six female juniors and three
male juniors – at the senior end, male QCs again outnumbered female. Of the
seven silks Leigh Day instructed to act in the EAT, five were men and two were
women.
The top 10 male silks (by number of cases) accounted for a
total of 75 instructions. Male silks are given the opportunity to lead junior
barristers more frequently than their female counterparts and, more often than
not, the junior who is led by a particular silk will be a male junior. The
relative lack of female QCs means that when female juniors are led by a silk,
more often than not they are led by a male silk (almost exclusively, in fact).
In total, the 20 most active male silks on employment cases
in the CA worked on 82 cases. More often than not, the 20 silks acted for
corporate and government/regulatory entities (52 cases out of 82). The 20 silks
led juniors in 49 out of 82 cases – and indeed, as Hanretty and Vaughan’s
Homophily research indicated, overall male silks are more likely to instruct
male juniors. Of the 49 cases in which junior(s) were paired with a silk, 38
involved at least one male junior. Four out of 39 times that male junior was
paired with one or more female juniors. Mixed teams aside, overall female
juniors are still less likely to be selected as junior counsel for silks. Of
the 82 cases, female juniors were only instructed 15 times.
If we cut the Litigation Tracker data by chambers, we can
see patterns of crossgender pairings in certain sets. For example, of all the
sets active in the Court of Appeal on employment cases, 11KBW looks to be the
most inclusive. Three of the set’s male silks made it into the top 20 most
active and overall have a good record for instructing female juniors,
suggesting that the set’s culture is more open than that of its competitors.
11KBW has also had some success in supporting its female barristers into silk;
all three of its female QCs (out of a total of 19 at the set) have been recent
appointments.
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