Is a pandemic the right time to be thinking about diversity issues at the Bar?

And what adjustments should we retain? Notes on the crisis, gender and the Bar. By Rachel Barrett



On 10 March 2020, I attended a wonderful event; the annual Women in Law panel discussion held by the Scottish Young Lawyers Association. It was a well-attended and buzzy evening. I came away fortified by the enthusiasm and wisdom of the other panellists. I planned to keep up the good work with an article on the topic.

Then… well, everyone knows what happened next. I’m glad my last trip out of chambers was for such a warm and lovely event, a memory to treasure over the coming weeks of working alone. I fervently hope that the attendees are keeping safe and well today and in the future.

I was going to drop the article. It seemed trivial. Overtaken by bigger events. Perhaps not the right time to be thinking about legal professional issues when there are more immediate concerns about the safety and wellbeing of family and friends.

However, as the legal profession adjusts to the new ‘normal’, it occurs that this transitional time poses so many challenges that we are in danger of losing valuable progress achieved so far. There are also opportunities for new ways of working to be implemented that are capable of being fairer, more adaptable and more innovative than what went before. When we next feel able to get on the bus, train or underground to our offices and chambers, perhaps we might bring with us a little positive shift in culture and understanding.

1: Gender and technology

My job usually involves early starts waiting for London buses, lugging cases full of papers up and down stairs in train stations, staying late in chambers to print authorities for the next morning. Some areas of practice are more paper-based. Some colleagues have been ahead of the curve in adapting to paperless working. But we are all – ordinarily – peripatetic.

Since the lockdown began, my colleagues at Cloisters, amongst others, have been working hard to devise innovative ways of being home-based courtroom advocates. On 24 March, the Supreme Court successfully live-streamed its first virtual appeal in Fowler v Commissioners for Her Majesty’s Revenue and Customs. Video hearings are now proceeding, with a varying degree of success, in a variety of courts and tribunals. Careful thought must always be given to what may be lost in the process. Some types of hearing cannot work remotely (eg vulnerable litigants, jury trials). In other cases, current technology allows for a surprisingly effective hearing. Open justice can still be protected – indeed, online hearings may prove to be more accessible to the public than our physical courtrooms.

The lessons we are learning so quickly now may continue to assist us to do our jobs better and more flexibly in the future. There will be a backlog of cases to be case-managed and determined as courts reopen. Continuing to conduct hearings remotely, where suitable, will save time and costs for all involved and allow the backlog to be managed effectively. Courts will have become more used to dealing with e-bundles, lightening the loads in our wheely suitcases and the burden on chambers’ printers.

What other consequences might there be? If a greater proportion of hearings are conducted remotely in future, there will be days when we will avoid the commute back from court to chambers and finally home. That will tend to ease the burden on those for whom the heavy travel commitments at the Bar are most difficult, including those with disabilities which make commuting more onerous, and those with caring commitments.

In 2013, 57% of women at the Bar with children were primary carers compared with 4% of fathers at the Bar (HHJ Emma Nott, ‘Gender at the Bar and fair access to work’, Counsel, April 2018). This stark divergence may have narrowed in the years since, but we surely still have some way to go. Advocating for the continued use of remote technology in courtrooms in future, where appropriate and in accordance with the interests of justice, is a positive way to support continued progress.

It may also make a difference to the way the clerks room operates. Before the pandemic, Cloisters was taking the first tentative steps to facilitate remote clerking, with a view to enabling flexible working. That initiative has been accelerated. The impetus has been to allow us to provide a seamless service to our clients while we are physically away from our chambers. However, in the long term across the Bar, being jolted out of accustomed ways of working may open our eyes to how things can be done differently. The dearth of senior female clerks has long been a source of concern (see eg Amar Mehta & Lucy Barbet, ‘We need more senior female clerks’, The Lawyer, 17 July 2019). Perhaps if the demands of the job can be more flexible, we can do better.

2: Parenthood at the Bar

This leads on to the second way in which our working lives have changed so radically and rapidly. Schools, nurseries and childminders have closed to all but key workers’ children. The children are home… all the time – and this is not likely to change any time soon, as parents, schools, unions and childminders digest the viability of new government advice on reopening. The Bar Council has directed that barristers fall into the key worker category at times when their work is fundamental to the running of the justice system but that, even so, children should be kept at home where possible.

There is, of course, a risk that the removal of childcare support will impact far more on women at the Bar than men. The 57%/4% primary carer statistic does not bode well for the gendered impact of schools and nurseries closing.

However, anecdotally, I observe that male as well as female colleagues are by necessity taking on significantly more hours of childcare at this time. Everyone who is a parent simply has to. Especially barristers whose partners are (really!) key workers and are, therefore, the person at home with the children most of the time.

Courts must assume that men as well as women are likely to be balancing heavy childcare commitments with their professional workload. Timings of hearings as well as deadlines may need to be adjusted around these new realities. We should not be afraid to ask for what we need in order to make the continued operation of the justice system possible during these extraordinary times.

Again, it is to be hoped that the adaptations we reach now out of necessity may have positive consequences in future. A more flexible and less gender-divided approach to parenthood at the Bar would be a very welcome development.

3: Gender and instructions

Despite the urgent concerns of the profession at this time, we should not lose sight of the issue of gender equality at the self-employed Bar. Only 21 out of the top 128 counsel in the Supreme Court (ranked by number of appearances), and only two in the top 10, are women (Mikołaj Barczentewicz, Litigation in the UK Supreme Court: Collecting and Exploring the Data, 19 December 2019). However, when women lead teams of counsel in the Supreme Court, they are more likely than men to have at least one junior woman on their team (Barczentewicz; Chris Hanretty & Steven Vaughan ‘Patronising lawyers? Homophily and same-sex litigation teams before the UK Supreme Court’, Public Law, 2017(3) July 2017).

The pattern is replicated in other courts. A research team looking at the employment Bar found that 30% of barristers in the Employment Appeal Tribunal and 23% in the Court of Appeal were female (Beatriz Veyrat, Amar Mehta & Catrin Griffiths, ‘How gendered instructions at the employment Bar are scuppering female barristers’ ambitions for silk’, The Lawyer, 3 July 2019). Both claimant and respondent firms tended to opt for male silks, and the tendency for male silks to lead male juniors was as apparent here as in the Supreme Court. Women were more likely to be representing claimants than employers. They were more likely to be appearing pro bono.

The data indicate a barrier for women accessing the most high profile and exciting appellate work which provides the type of experience needed to take silk. The low proportion of women silks is both a cause and effect of this gender discrepancy perpetuating, because silks tend to bring on juniors of their same gender.

Prior to the pandemic, some excellent work was being undertaken to study and address the discrepancy. For example, an Employment Lawyers Association initiative asks participating firms to monitor the gender of the advocate instructed and the person making the decision to instruct, for every instruction over three months. The Bar Council’s EDSM Committee has an initiative examining pay issues at the Bar and the extent to which gender plays a role in billing, led by my colleague Dee Masters. By monitoring trends, it should become possible to identify any inequalities and take remedial action.

It is important that this type of monitoring work does not get lost amongst the more urgent and immediate priorities for law firms and chambers during this period of crisis and the hoped-for period of recovery to follow. In any time of crisis and change, there is a danger of slipping backwards on diversity issues, as well as opportunities for progress.

4: Gender and language

Picture a lawyer who is collaborative, a pleasure to work with, client-focused, well-organised, diligent and thorough. Picture another lawyer who is a strategic thinker, charismatic, a legal heavyweight, a fighter, with a mastery of their area of law. What mental image to these descriptions evoke?

Allen & Overy recently undertook a review of the London Bar rankings in the Legal 500, which found marked differences in the way men and women were referred to. They produced a fascinating briefing note detailing the gendered differences in the language used in directory recommendations. Apparently men are much more likely to be compared to cars! Inspired by their work, I looked at the Scottish rankings in Chambers and Partners for this year and found a similar pattern there. The first set of adjectives above were used always or predominantly to describe women, and the second set men.

Does it matter? As lawyers we tend to think that language does matter – we are alert to niceties of meaning as well as nuance. Especially as we are by necessity remote advocates for the time being, our online presence has become all the more important.

It makes a difference to the perception of men and women lawyers if the men are formidable ‘big beasts’ while the women are faintly praised for being conscientious. However, the solution is not straightforward. It helps to be conscious of language biases, but simply switching the descriptors around may not have the desired effect. One of the issues considered by Allen & Overy as part of its diversity and inclusion initiative is that words may have very different connotations when used to describe women and men. A plea: please do not compare a female lawyer to a pitbull, rottweiler or any other kind of dog…

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Rachel Barrett

Rachel Barrett is a barrister at Cloisters specialising in employment, equality and human rights law.