Behind The Gown was created in order to coax the Bar into confronting what it calls the ‘endemic harassment and abuse of power in our profession’. Counsel magazine recently met with one of their founding members to find out more about the group’s formation and purpose.
‘This feels like a revolution,’ she declares. It certainly feels like it. The ripple effect of the #MeToo movement across the globe has had a profound impact on our discussion of sexual harassment for women (and men) in all walks of life.
Now is the appropriate time, Behind The Gown tells me, for this conversation to happen at the Bar.
The group’s sudden publicity at the end of last year was not without drama or, indeed, intended. The appearance on the front page of The Times (13/11/17) was, I learn, unplanned and the group will launch formally in May. The paper described Behind The Gown as a collection of ‘women lawyers’ complaining about harassment, comments and innuendo from male colleagues. They are a resolute set of barristers, each of varying expertise, Call and gender.
A wider discourse on power at the Bar
The organisation’s objectives are two-fold: first, to provide advice and a supportive network for people experiencing harassment at the Bar and, second, to undertake research and policy on harassment and make recommendations to relevant organisations on working conditions at the Bar.
The name of the group is central to its message. It seeks, with a degree of levity, to convey revelation, tradition and humanity. These are people, real people, carrying stories, carrying baggage, behind the gowns they wrap around their shoulders. Behind The Gown was further inspired by the Second Source, a group of leading female journalists who have set up a similar network to tackle sexual harassment in the media industry. Both groups recognise that their profession is overdue a voice in the #MeToo debate.
Behind The Gown is not concerned solely with the sexual harassment of women, either. It wants to frame it in terms of wider discourse on power at the Bar. There is keenness amongst the group that it is not overly gendered in its message and that it includes chambers staff. It includes among its ranks a handful of men members and clerks, and they want more to join up.
The group aims to associate sexual harassment and bullying, as ‘they are two sides of the same coin. Men and women who bully are often those who sexually harass. It’s not just a gendered thing. But obviously, because it’s about power, more often than not, women will be ones without power, given the way in which our society is constructed.’
They are keen, too, to extend to barristers and chambers staff who are not from the sorts of ‘typical’ sets which give the impression that they are switched-on to these kinds of subjects. The group is not predominantly comprised of discrimination law barristers either. This issue affects everyone, after all, and it cannot be ignored.
Anonymity was required at Behind The Gown’s genesis, though, in order to build solidarity. It would have been ‘uncomfortable’ to do all this publicly, at first, particularly when it involved several junior, mostly female barristers putting their name to something that perhaps many in the profession are not quite yet ready to confront. A number of their names do appear at the bottom of this article.
The deterrent effect: a culture of patronage
So, I asked, what is it that is unique about the Bar that makes this matter so difficult to confront? She replies: ‘It is very difficult for individuals to raise their concerns at the Bar due to a culture of patronage. Of course, it’s almost impossible to call out individuals who you rely on for work when they behave inappropriately or bully you. While we are all in theory equal members of chambers, the Bar hierarchy does not help.’
She continues: ‘I think that the isolation and lack of support networks contribute to this. And importantly, we don’t have human resources departments, so there’s a real lack of HR expertise and process in chambers.’
The question then arises as to how to start fixing this, when we do not have the structures in place that other professions do have. Figures obtained in February 2018 by The Times showed that complaints by solicitors of sexual harassment to the Solicitors Regulation Authority (SRA) are running at nearly one a month, with a total of 21 in the past two years.
Why, then, have there been only two complaints of sexual harassment towards female barristers been made to the Bar Standards Board (BSB) in the past five years? Is it merely because our profession is smaller? Behind The Gown puts this worrying figure down to this problematic culture at the Bar, and also the BSB’s mandatory reporting requirements.
The BSB rule is that it ‘would not normally expect to take disciplinary action for failing to comply with the duty to report if you are a victim of the misconduct in question’. Behind The Gown, of course, sees this ‘not normally’ rather than ‘extremely rarely’ as a ‘massive deterrent’. Why would anyone have even a quiet word to a trusted colleague, if they feared any reprisal?
A Freedom of Information Act request was made recently by Behind The Gown to the BSB. This asked about the number of complaints it has received of sexual harassment and the training of BSB staff and panellists. The BSB responded as follows:
Over the past five years, we have received two complaints of sexual harassment or inappropriate behaviour towards female barristers by male barristers.
Of these complaints, one was proved at a disciplinary tribunal and the other was proved at tribunal but overturned by the High Court on appeal. It would be inappropriate for us to comment about any ongoing complaints.
Equality and diversity training is provided to all new BSB staff members as part of their induction. Attendance at the course is mandatory. The training course covers all aspects of prohibited conduct under the Equality Act 2010, including sexual harassment.
In line with our contract and services with the Bar Tribunals and Adjudications Service (BTAS) there is a requirement for them to provide E&D training to disciplinary panel members.’
Accordingly, it is not surprising that Behind the Gown tweeted: ‘There is a real issue about the [BSB] reporting obligation and its appropriateness in harassment cases.’
"A revolution cannot be an apple that falls when it is ripe. You have to make it fall. Ultimately, once the dust settles, Behind The Gown is certain that this global, systemic upheaval will only help the Bar grow, rather than hinder it"
Baroness Blackstone, Chairwoman of the BSB, has publicly said the regulator’s intention was to have a clear rule so that all barristers know that they are obliged to report serious professional misconduct. She said, nevertheless that: ‘we are currently reviewing the equality rules and we’ll be asking barristers whether they believe that the current rules might sometimes deter people from reporting cases of possible harassment within chambers’ (The Times 19/2/18). The BSB has further stated that it will bring in further special measures for regulatory proceedings. They are also planning on changing their burden of proof from beyond reasonable doubt, to the civil standard, as it was deemed inappropriate in a disciplinary context.
Even so, as Behind The Gown tweeted: ‘But what if part of the problem is the normal process? Does [the] burden on complainant to “prove” a case disable the ability to take action? For instance, when there is a history of complaints?’
The response effect: reducing incidents
The Bar Council’s published advice on sexual harassment is something that the group want to help improve. Although, as they observe ‘harassment will always happen – there will always be men and women who harass each other, in all industries’, Behind The Gown vows that: ‘what we can do is respond to it appropriately. And knowing there is going to be a response, might reduce the incidents.’
It insists too, that every single chambers should have a sexual harassment (and a bullying) policy. I am told that ‘the leaders of the Bar need to take the initiative and say that they will not tolerate that sort of behaviour in their organisation. We don’t simply say that “that person” shouldn’t have female pupils or that person shouldn’t be invited to the Christmas party, we just say “NO”.’
Many at the Bar will no doubt disagree and criticise the approach that women (and men) are taking in this fresh era of speaking up and acting upon sexual harassment. Many are not ready and others are simply indifferent. Yet a revolution cannot be an apple that falls when it is ripe. You have to make it fall. Ultimately, once the dust settles, Behind The Gown is certain that this global, systemic upheaval will only help the Bar grow, rather than hinder it.
Behind The Gown feels strongly that: ‘There are supportive, informal networks across the Bar, but there has never really been a supportive network specifically around bullying and harassment.’ Now, at last, there is. This is genuinely a momentous moment for our profession.
Behind The Gown will officially launch on 23 May 2018, 6.30pm at Bridewell Hall, 14 Bride Lane, EC4Y 8EQ. Jess Phillips MP will be speaking at the event, which will include a panel discussion and a drinks reception.
We look forward to welcoming you there.
Contributor Alice de Coverley, Counsel Editorial Board. Behind The Gown members include: Kate Brunner QC, Henrietta Hill QC, Caoilfhionn Gallagher QC, Heather Williams QC, Karon Monaghan QC, Baroness Helena Kennedy QC, Angela Rafferty QC, Fiona Scolding QC, Fiona Murphy, Ini Udom, Stephanie Hayward, Jeannie Mackie, Adam Wagner, Elizabeth Prochaska and Jude Bunting.