Gender at the Bar and fair access to work (2)


Part 2 of HHJ Emma Nott’s analysis turns to the top 500 criminal legal aid fee earners. How do the earnings of female advocates compare to their male counterparts?

Part 1 of this article examined the statistics on gender at the Bar and whether female juniors were getting fair allocation of work at the most complex and lucrative levels. This Part 2 examines how the earnings of female criminal advocates compare to their male counterparts. This can only realistically be assessed by reference to publicly funded cases where fees paid in legal aid are a matter of public record. I am very grateful for the assistance of the statistics team at the Legal Aid Agency which helped me populate an Excel spreadsheet with every criminal legal aid fee earner for each of the last six years. I was then able to review the gender split among the top 500 fee earners – ie the top 500 publicly funded advocates in criminal defence. The gender split was as follows:

The gender split looking at the top 100 alone was yet more imbalanced:

I then looked at the position regarding publicly funded prosecution payments, which are not a matter of public record. I am grateful to Belinda Whitelaw and Mark Trolley of the Crown Prosecution Service (which prosecutes circa 100,000 cases in the crown courts annually), who kindly provided me with the figures for its fee earners from 2012 to 2017. The gender split was as follows:

Are the SFO and FCA faring better?

While clearly still unrepresentative, the prosecution figures would suggest that the CPS does better in terms of gender equality than defence solicitors when instructing advocates; however the figures do not, of course, take into account Serious Fraud Office (SFO) or Financial Conduct Authority (FCA) prosecutions which encompass some of the most serious and complex financial crime. The CPS figures do include National Crime Agency and RASSO (rape and serious sexual offences) cases. These are fields which are relatively well-paid in comparison with general crime and, again anecdotally, the latter is one in which female advocates are thought to be instructed in equal or greater numbers than their male counterparts, yet the figures do not suggest parity of instruction/remuneration.

The FCA, established in April 2013, brings a very small number of complex prosecutions each year, although its appointment of Vincent Coughlin QC as Chief Criminal Counsel in April 2017 reflects an intention to increase its number of criminal investigations and prosecutions. Although not publicly funded (financed by fees levied from members of the financial services industry), the Authority kindly provided anonymised data surrounding its five highest paid advocates over the last three years. One of the five was female.

The SFO initially agreed to supply its anonymised data; however it ultimately declined, citing s 40 of the Freedom of Information Act 2000. I was directed to its website where it purports monthly to publish data surrounding individual procurements costing more than £25,000 from January 2012. These include counsel’s fees. However, the published data only refers to individual barristers as opposed to their chambers from January 2016. Analysis of this limited data set reveals that in 2016, 14 counsel received individual sums of more than £25,000 – of whom three were female (21%); in 2017, 12 counsel were so listed, of whom four were female (33%).

Although the SFO declined to share its data in terms of gender split among its top publicly funded fee earners, Panel Lists are published on its website. The Lists for 2017-21 show that 24% of its QC prosecution list and 33% of its junior counsel prosecution list comprise female advocates. 13.6% of QCs and 36.4% of juniors on its POCA list are female. This would suggest that, prosecuting at least, women might now start to receive more representative access to serious and complex fraud work – but without the financial data one does not know whether the actual allocation of instructions is as representative as the lists would suggest, nor whether remuneration of female advocates matches that of their male counterparts.

An ever-shrinking pool

Figures generally indicate that the Bar, in particular the self-employed Bar, still has a long way to go to meet its obligations surrounding gender equality. If female junior advocates are not being given fair access to the more interesting and remunerative work, then it is unsurprising that the Bar has a retention problem. The continued lack of proportionate representation of women amongst QCs remains a concern. However if women are driven to leave the Bar, and particularly the self-employed Bar, before and after five years’ Call, as the data suggest is the case, then there is an ever shrinking pool from which to choose the best candidates.

Similarly, judicial appointments at Circuit-judge level and above have traditionally come from the self-employed Bar. In his November 2012 Bar Council Law Reform lecture Lord Sumption pointed out that ‘the main reason for the lack of diversity in the English bench is the un-diverse character of the upper reaches of the legal profession’. He went on to argue that the lack of gender equality resulted from the ‘exceptional demands which the profession makes on its most successful practitioners’ which many did not wish to put up with, ‘making a perfectly legitimate lifestyle choice’. However, if women are not being given equal opportunities (and equal remuneration) from the very start of their careers at the self-employed Bar, their desertion appears to look less a ‘lifestyle choice’ and more an intolerance of inequity. Lord Sumption argued that the recruitment of judges from the higher ranks of the legal profession results in ‘a judiciary of outstanding intellectual calibre and broad legal experience’ with a ‘highly-developed sense of judicial independence,’ and that the price of this exceptional quality was inevitably ‘a less diverse judiciary than most of Europe’. The self-employed Bar should be wary of complacency; if it continues to be unable to provide a level playing field for female counsel, then the JAC is likely to turn to other rich sources when looking for its outstanding circuit judges and senior judiciary: the highly-qualified and very able young women who leave are going somewhere. The solicitors’ roll suggests that the Law Society does not have the same retention problems as the Bar, and the employed Bar also achieves close to gender parity – perhaps because employers offer more attractive maternity arrangements and flexible working arrangements for those with caring responsibilities.

There is already considerable pressure on the Ministry of Justice to allow employed CPS and GLD advocates to apply for part-time judicial appointment. As Law Society President (2016-17) Robert Bourns pointed out in the recent House of Lords Select Committee Judicial Appointments: Follow-Up 7th Report of Session 2017-19 published on 2 November 2017, the CPS ‘employs a lot of barristers and solicitors at a senior level, with a great deal of relevant experience… It is not only a very good population of practitioners; it is also a very diverse population’ (Committee Report para 85). The same applies to the GLD. The Select Committee recommended that the Lord Chief Justice and Lord Chancellor consider ways in which CPS and government lawyers can gain relevant judicial experience notwithstanding concerns as to conflict of interest (Committee Report Summary of Conclusions and Recommendations, paras 11-12). In its response published on 21 December 2017 the government indicated it would encourage applications for judicial office from these groups, while recognising the need to ‘ensure this does not lead to perceptions of conflict or bias arising from their continued work as government lawyers while serving as fee-paid judges’ (The Government Response to House of Lords Constitution Committee’s 7th Report of Session 2017-19, paras 36-37).

If the current prohibition is preventing a disproportionate number of talented women from appointment to the part-time judicial roles which are the traditional route to the full-time judiciary, this of itself may be discriminatory. For example, if a talented female member of the criminal Bar should leave chambers to work at a senior level in the CPS because such employment better enables her to balance her working commitments with her family commitments, the consequent prohibition on her applying to become a Recorder appears both arbitrary and unfair.

It may be that an answer will be to appoint exceptional candidates directly to full-time positions, following the notable precedent of Lord Sumption himself. On 22 January 2018 the JAC announced the appointment of five CPS lawyers as full-time judges following recent open competitions: one, Graham Reeds QC, has been appointed directly to the Circuit Bench; four have been appointed as salaried judges of the First-tier Tribunal. Two of the five are female, three are solicitors, one is BAME and four were educated at state schools, supporting Bourns’ observations as to the diversity within this population.

Further, the JAC has been largely successful in achieving gender equality in its appointments to the Tribunals and to some extent to the District Bench; in future these areas might be seen as providing a strong and gender diverse pool of outstanding candidates for more senior judicial appointments. At the time of publication, 92 of the 2017 competition appointments to the Circuit Bench had been announced; 35 of these are from the District Bench, 13 of whom are female (37%). This compares to 17 women among the 54 appointments who come directly from the Bar (31%). In the 2016 competition just five of the 42 appointments came from salaried judges on the District Bench or in Tribunals. The JAC does not need to dilute its merit test (the last two Circuit judge competitions left vacancies unfilled rather than lower standards); it is choosing instead to widen its net.

Beyond lip service: immediate difficulties for the Bar

Whatever potential difficulties may lie ahead regarding progression to and through the judiciary, there is a more immediate difficulty for the Bar. The obvious point is that it cannot continue to thrive if it is not reflective of the society within which it operates. The Bar has never suffered from its reputation as being intellectually elitist, but it will suffer if it comes to be regarded as discriminatory or anachronistic. The publicly funded Bar in particular has recently been involved in difficult, lengthy and sometimes acrimonious negotiations with the Secretary of State for Justice over various issues. Some of the more successful lines of attack have been under the Equality Act 2010 – with strong objections taken to fee cuts and to flexible operating hours on the grounds that these disproportionately affect female and BAME barristers. Such representations are likely to be less effective if the Secretary of State is able in response to hold the equality and diversity of the Bar up to scrutiny and find it wanting. Further, the Ministry of Justice, as a procurer of legal services through its arms-length bodies, will be careful not to find itself in breach of its obligations under European law to ensure that its female providers have equal access to (and equal payment in respect of) instructions: see Directives 2010/41/EU protecting the self-employed from discrimination and 2006/54/EC prohibiting discrimination in the access to self-employment. These Directives, taken together with the Treaty on the Functioning of the EU and Charter of Fundamental Rights of the EU, would appear to place an active obligation upon the Secretary of State for Justice as a procurer of legal services to ensure equal treatment and equal opportunity among his providers; if the Bar continues to fail effectively to act, he might in due course consider whether and how he should implement Art 5 of Directive 2010/41/EU which allows positive action to ensure full equality in practice between men and women.

Heads of chambers, practice managers and senior clerks need to take hold of this issue now. 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.

Contributor HHJ Emma Nott, on behalf of the Bar Council Equality, Diversity and Social Mobility Committee

Author details: 
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.