Two things are on a collision course. The first is Her Majesty’s Courts and Tribunals Service’s (HMTCS) plan that courts operate on a shift system – so called ‘Flexible Operating Hours’.
The second is the determination of the legal profession and many within the judiciary to do whatever it takes to retain talented women at the Bar so that the senior Bar and the judiciary at all levels exhibit a stronger representation of women. Almost every senior judge and politician has in recent times articulated the obvious need to attend to the fact that men still dominate the higher echelons of our system of justice. It does not look good for those we expect to promulgate fairness that the undoubted equality of talent between sexes at the Bar is very far from matched by equality of representation of sexes at a senior level. It might even be said to be faintly hypocritical.
HMCTS’s proposals involve introducing a pattern of court sitting hours that are seriously disruptive to those that have caring responsibilities for children, the elderly and others in need of care. We might agree that it should not be so, but it self-evidently is currently the position that primary carers are overwhelmingly women. We are taking small steps to try to enable fathers to play a greater role in day-to-day care. But let us not pretend we are anywhere near achieving parity. And unlike with many other professions, self-employed barristers are not provided with paid parental leave or work crèches or schemes for subsidising childcare or part time working patterns or job sharing/ ability to delegate our work.
So it is that whereas we recruit women to the Bar in equal numbers and retain them in equal numbers until they are about twelve to fifteen years’ call, thereafter the proportion of women at the Bar drops sharply.
As both QCs and senior judges are drawn almost exclusively from the Bar, the consequence is that men far outnumber women when it comes to senior positions. In recent years the Bar and the judiciary have taken a number of initiatives to begin the long process of turning this problem around.
We are making progress, but it is very slow. When surveyed, women at the Bar consistently explain that unpredictability of court sitting hours is a major disincentive to continue in practice once care commitments arise. It does not take much thought to see why. If you cannot predict with any reasonable certainty the hours during which you will be unavailable to care for others, it is very much harder to organise the necessary cover. I have heard it said by one or two dinosaurs that ought to know better that a nanny might provide the solution. It might have done to someone in private practice in the 1950s. It may still to a handful of barristers who earn a great deal of money. To those who are serious about diversity and social mobility, the ‘get a nanny’ retort is disappointing.
To try to tackle the problems created by unpredictable sitting hours, the Bar has recently issued a protocol which it has invited both the judiciary and HMCTS to adopt. It suggests consistent sitting hours save in exceptional circumstances. The support from all quarters for this initiative has been overwhelming. Perhaps unsurprisingly, women in particular are heartened by the thought that greater regularity of sitting hours might be achieved, increasing the likelihood that they can remain, or return to their career, because arranging the regular care of their loved ones – not by nannies but in the way that other working women in society manage it – now seems more feasible.
But rather than take steps to assist this important policy objective, HMCTS say they intend to operate shift hours – squeezing in two, or even three shifts a day dealing with different cases. The early shift will involve a very early start given the pre-court work that is always necessary, and the late shift will result in a much later return home at the end of the day. I think this is what is meant by ‘Flexible’. I’m sure everyone understands that advocates have to work long hours out of court – before and after court, to ensure we are ready. Our adversarial system depends upon it.
At the moment we do that at home, often very early before school time, or after children have gone to bed. Often barristers on Circuit will have to travel one or two hours to get to court. An inevitable feature of the proposed scheme is the unpredictability of listing cases, and so which shift you will be in. It would be bad enough if you have long term notice of which shift you are to be assigned to, but in the real world, because listing cases has to take account of a hundred other human considerations, that does not and cannot happen. It is difficult and costly enough to arrange childcare at various different times on different days, but to arrange it at short notice becomes almost impossible.
These proposals are, frankly, disastrous for diversity. Many hundreds of women have explained in simple and straightforward language that they will simply have to abandon their careers because, unsurprisingly, they put the interests of those they care for before the interest of their careers. Men who currently have fewer caring responsibilities, will not suffer those consequences and will face less competition from those who do.
Why is HMCTS doing this? If you strip away the platitudes and understand the euphemisms, they are doing it of course for want of adequate funding. The demands of the Treasury have resulted in the closure of many courts, and those same unrelenting demands will result, if unchecked, in the closure of many more.
Hence ‘Flexible Operating Hours’. We doubt it will save money. The rest of society – victims, witnesses, prisons, court staff, judges, will face their own challenges with the disruption to the pattern of the court day.
So the plans are ill-thought through – not just for the impact on diversity but on all other court users. Trials will take longer because they are to be spread over shorter shifts. Previous similar experiments have proved to be expensive failures. Even if shift sitting were to save money by enabling courts to close, the price in terms of retaining or even entrenching the domination of men in senior legal and judicial positions, ought to be unacceptable to us all.
It is time to admit that this is a bad idea, and to think again.
Andrew Langdon QC, Chair of the Bar