Unless you've been living under a statue of Mary Wollstonecraft, you'll have noticed that the subject of women at the Bar has been everyone's business lately.
Diversity at the Bar is a hot topic. This year we’ve seen two Bar Council studies on the prospect of equality and women's lived experiences in the profession, and a social media storm that left very few unprepared to chip in (until a supreme court judge almost stole the limelight). We thought it would be useful, then, to provide a round-up of the various strands of the debate, and attempt to answer what should be simple enough questions: What is it really like for women at the Bar? Will there ever be as many female barristers, silks and judges as there are men? And what needs to happen for the numbers to improve?
He said she said
Summer 2015 saw the Bar Council release two studies. Momentum Measures is a quantitative report aiming to find out, among other things, whether 50% of all practising barristers can ever be female. The short answer turned out to be no. This is down to “attrition” faced by female practising barristers, if they ever do move from call to practice. A dramatic imbalance in favour of women would be required if we're ever to redress the ratio.
The second report, Snapshot, sought to complement Momentum Measures by providing a qualitatively drawn backdrop to present the “real stories” behind the numbers. In the foreword, chairman of the Bar Alistair MacDonald sums up: “it is heartening to see that, as a profession, we have clearly moved on in the way women are treated,” but added that “there are clearly new challenges for women barristers,” particularly “primary carers.”
Lord Sumption recently – though not for the first time – expressed his concerns over the “appalling consequences” that would afflict the judiciary if a conscious effort were made to make more women judges.
Lord Sumption recently – though not for the first time – expressed his concerns over the “appalling consequences” that would afflict the judiciary if a conscious effort were made to make more women judges. This is the classic argument against quotas, positing that positive discrimination prevents the “best person” from getting the job. Sumption conceded that equality within the judiciary is on the horizon, thus effectively disagreeing with the Momentum Measures report, but estimated that it would take about 50 years to achieve it. He suggests female barristers exercise “patience.” By which time “I’ll be 77,” derided Charlotte Proudman – the barrister famed for tweeting a screenshot of a message from lawyer Alexander Carter-Silk she deemed sexist and unprofessional – in an interview with the Student Guide.
Proudman also wrote for the Guardian that “Sumption's views exemplify perfectly what is wrong with the way women in the legal profession are viewed by those in the highest echelons of power.” According to Sumption, women are not often found in the highest legal positions because of “lifestyle choices.”
Real barristers of England and Wales
Attracting women to the Bar is not an issue. As of 2000, a 50:50 balance was achieved among those called to the Bar and that has remained steady since. Fiona Barton QC of 5 Essex Court tells us that “it wasn't that far off even when I was studying, but the drop out rate was much higher.” If women match men in the numbers being called to the Bar, but are then far less likely to stay in the profession, the big question is clearly: why have women been leaving the Bar? Presumably Lord Sumption is in part referring to the decision to procreate when he blames women's “lifestyle choices” for blocking their career progression.
Taking maternity leave and ensuing childcare is a big reason why female barristers transition to part-time work or stop working altogether (Snapshot certainly indicates that it is). As many women and men know, however, all sorts of factors contribute to the relativity of this being a woman's “choice.” Fiona Barton commented: “Even if women have a husband who works from home, nature means that in the early days they'll want to spend more time at home with their family. It doesn't mean they drop out. It should mean you make those choices available to them.”
Finding a practical, democratic solution to parental leave is one of the most important moves if we’re to achieve equality at the Bar.
Finding a practical, democratic solution to parental leave is one of the most important moves if we’re to achieve equality at the Bar – and indeed other professions. We spoke to Lindsay Scott, chief executive of Matrix Chambers who said that parenting requires a bespoke arrangement: “There's no 'one size fits all'; it depends on the individual woman and family, but there is a way of making it work. The way I see it is you're on the motorway, and you might want to get off and go on an A-road for a while, but when you get back on the motorway you're still going in the same direction and you can just as easily get into the fast lane.” She suggests job-sharing as a means to facilitate women's re-entering of the “fast lane,” which Felicity Gerry QC of 36 Bedford Row also tells us is a “more efficient” method.
But how does “attrition” actually manifest itself in the daily lives of female barristers? In Snapshot some sources spoke of sexual harassment, unsupportive supervisors, and one subtle but pervasive trend: “if you are a girl you will be considered for family [law] whether you want to be or not.” We asked Fiona Barton about her experiences of attrition: “Career pigeon-holing was certainly happening when I first started out. We were living in an era when you just did the work that clerks gave you to do. The notion of a practice development meeting was non-existent.” Although she feels this has improved, this is still an industry-wide problem, which Barton denounces: “I refuse to believe there aren’t women suitable to fill the roles.”
Snapshot concludes that “outright sexism” is “historical” at the Bar. The findings show that while “there were still incidents of inappropriate behaviour,” these were mostly “in the form of banter” (a word Charlotte Proudman took issue with in The Guardian). Felicity Gerry agrees “open sexism is going,” but ventures that “in many ways the situation is worse than it was: now sexism generally exists as either unconscious bias, or behind the scenes. It’s important to note that it’s by no means the whole of the Bar that is sexist. The problem is that we’re coming to it too late, we’ve been blind to progress, and now we’re scrambling to achieve some semblance of equality.”
Drivers of change
What can be done? The conclusive “recommendations” of Snapshot suggest the Bar must “encourage and facilitate mentoring,” “promote women’s marketing networks for barristers,” “extend the Bar Nursery to the circuits,” and “encourage a better gender balance on key decision-making committees.” When many women and men in the profession are already working hard to “encourage,” and “promote” a diverse workforce, how useful are these words? How conducive to quick and game-changing results are they?
For Charlotte Proudman, among others, quotas are the only plausible and logical solution. “Practical changes need to happen before the culture can follow,” she told us, adding, “I don't support 30% quotas because the subtext of 30% quotas is that women are good but not quite good enough to be equally represented in the legal profession. We need 50% men and women in every area of law.” Proudman discards the notion that the 50:50 ratio is about women bringing 'female' skills to the table; she rejects the idea of framing equality as a 'business benefit'. “Forget the same old tired arguments about differences between men and women lawyers because the difference argument simply reinforces existing gender-based stereotypes,” says Proudman. “This is about men holding the balance of power because they have benefited from discriminating against women. Those at the top are white upper-class men. The law is male. The law was written by men, most judges are men, and when it comes to constructing the law around women's bodies – about rape and domestic violence for example – women are invisible. This is not democracy, this is an old boys’ club."
Felicity Gerry agrees that quotas are a “pretty good idea,” and adds that “women have a huge contribution to make in relation to the development of the law, and it would have evolved more quickly if women had been involved. In the past, women were considered property and children were considered liars; offences against children weren't even prosecuted. The law has come a long way. The system needs a refresh. As women play a bigger role in developing the law, the Bar can lead on diverse issues and lead on innovating in professional flexibility.”
In the wake of Lord Sumption's comments, many spoke up in favour of quotas, making the point that the concept of quotas had been employed for centuries, by deeming certain professions exclusively accessible to men.
In the wake of Lord Sumption's comments, many spoke up in favour of quotas, making the point that the concept of quotas had been employed for centuries, by deeming certain professions exclusively accessible to men. In this light, bringing quotas in now is seen as a just redressing of a historical error, grounded in now dated conceptions of the limitations of women's professional capabilities.
Still, not all female lawyers agree with the idea of quotas. At a recent debate (part of the excellent First 100 Years project) with Dame Janet Gaymer and Rosemary Martin, the two openly disagreed on the topic. Martin quipped: “I think it's deeply offensive, and I think it's absolutely necessary.” She warned the audience that equality wasn't going to be reached through people's “kindness of heart,” and urged not to “make it painful” for future generations. Dame Janet Gaymer disagreed, saying she found it hard to “break the habit” of focusing on “the best person for the job.” Martin's retort was that quotas make you think about “who could be the best person for the job.”
The discussion then turned to what the industry perceives to be merit. In our interview with Proudman, we heard that “there is a gender hierarchy of inequality within law that tends to value male skills. The adversarial system is about going into court and fighting for the universal and objective truth. This is masculine behaviour and these are masculine concepts.”
“Fifty years is too long. I don't think we should be patient.” reacted Fiona Barton to Sumption's comments. But Barton also disagrees with quotas: “We ought to be looking at making the profession an attractive place to work. Do you positively discriminate and allow women to join who are not as good as men? I would not be in favour of that. However I would be in favour of making adjustments to ensure the profession is an attractive place to be.” She cites her chambers' “enlightened senior clerk” as a positive factor toward the “flexible working practices” she believes, along with “a rent structure that doesn't penalise you if you take a career break,” will render the Bar more appealing to women.
Raise the Bar
Felicity Gerry also believes the solution lies in making the Bar “an environment women wish to engage in: if you have a specialist team make sure it has women in it; ensure your management committee is diverse; don't take part in panels unless there are women on them; teach the courts that lesson in this regard. Ask a junior female member to host an event rather than the head of chambers, focus social events around intellectual interests rather than alcohol. Make use of the top women you have, and let the juniors shine.” Fiona Barton agrees that the change needs to come from inside each organisation: “chambers have to display a willingness to change their make-up. Once you've changed the chambers' mindset you have to change the working practices of the clerks' room enough so as to attract someone with five year old twins to come and work for you. This partly means limiting travel for these women.”
Gerry suggests the Bar helps women to “go sideways” because “it's not all about becoming judges. The commercial Bar, a traditionally a male arena not requiring so much court time, and thus allowing for more flexible schedules, should give collaborative opportunities to female criminal advocates. Women leave the Bar because it is unimaginative; it assumed women were naturally skilled for family or criminal law, and pushes them into it. But courtroom advocacy that many weeks a year is hard for anyone, not just women with children. Now there is a focus on diversity from the Bar Council it should be easier to change this around to benefit everyone."
Accepting Momentum Measures' predictions as true – that gender equality at the Bar can't be achieved in the foreseeable future – would fail to appreciate nuance, as well as hand an easy victory to the Sumptions of the profession.
“The best way to predict the future is to create it,” Abraham Lincoln once said; and this wasn't inspired by any banal statistical modelling. Accepting Momentum Measures' predictions as true – that gender equality at the Bar can't be achieved in the foreseeable future – would fail to appreciate nuance, as well as hand an easy victory to the Sumptions of the profession. In this sense Momentum Measures merely proved that history is not an example to follow. Snapshot is a useful collation of the voices of some women at the Bar – the key word being 'some'. What were the motives of the women who chose not to take part, and of those who did? Further, how useful are these 'recommendations' made to the (mostly male) leadership of an institution, when they don't actually demand practical results?
Our interviewees are unequivocal: the Bar needs to be a more attractive place for women before it can approximate any kind of equality. But as a careers guide we'd be wrong to put people off: the Bar is one of the most engaging careers there is, and opportunity will only improve for women. We've seen how some barriers to women's careers can be lifted by addressing practicalities like rent structures, skills training, egalitarian parental leave, and avoiding career pigeon-holing. This will only happen, however, when chambers themselves embrace progress – and they will have to in the absence of any formal accountability. Our sources agree that the Bar will serve the country better when it exhibits the justice and democracy it stands for; it must reject the notion that equality is unachievable or that younger generations need to just sit tight.
This feature was first published in December 2015.