Gender at the Bar and fair access to work (3)

Without equal access to the best work, it is more difficult for women to gain experience, skill and confidence to apply for silk and the judiciary. With gender-diverse lists ahead, this systemic problem affects everyone
 


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.

Gender imbalance trends

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.

How this impacts future of the Bar

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].’

The Lawyer analysis

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.)

This hard data cannot be ignored

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.’

What progress over last two years?

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?

A flawed system? The market will decide

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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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.