Retention of Women at Bar – one step forward and two steps back?

As of 1 December 2020, figures collected by the Bar Standards Board in the report 2020 Diversity at the Bar, showed that female barristers constituted around 38.2% of the practising Bar. That figure represented an increase of around 2.3% since 2015[1]. The number of entrants to our profession are relatively equal in terms of gender. Yet, women still only make up 16.8% of QCs, and figures recently examined by the BSB reveal that significantly more women still leave the profession indefinitely than their male counterparts.

In their report published in July 2021, “Trends in demographics and retention at the Bar 1990 – 2020” the Bar Standards Board has set out to examine patterns of retention, broken down by gender, ethnicity and age, and to consider whether there are key moments in a barrister’s career when they are likely to leave the Bar. The report demonstrated that the retention of women as they progress to the senior junior stages of their career continues to be a greater difficulty than it is for their male counterparts. The Chair of the Bar Council, Derek Sweeting, responded to the report;

“This is an important report with findings that will help inform the Bar Council’s future support for the profession. The statistics show a Bar that is continuing to grow, with the number of practising barristers each year growing substantially over the last three decades, and the proportion of barristers leaving in the first 10 years of their career decreasing. The news that the proportion of female or ethnic minority practising barristers has almost doubled demonstrates progress on diversity and inclusion at today’s Bar.

Nonetheless, there is still work to do. While retention of women has improved, women still leave in greater proportions than men. Addressing factors behind this is a key part of the Bar Council’s current programme of work on Modernising the Bar. As well as this, our work with the young Bar (including focus groups and the Barristers’ Working Lives Survey 2021) and our planned Race Summit this Autumn will – we hope – help us better understand why barristers from ethnic minority backgrounds spend longer periods out of practice in their early careers than white barristers.”

There are now many initiatives in place to support women at the bar. Forward thinking chambers have robust parental leave policies, return to work policies, and percentage based expenses schemes, rather than flat rates, which mean that expenses is only paid on money actually paid. There has undoubtedly been a greater emphasis in recent years on wellbeing and mental health at the bar, with for example the Bar Council’s “Talk to Spot” programme being made available to report bullying and harassing behaviour.

The Bar Council are currently engaged in the “Accelerator Programme” which incorporates nine projects focussed on increasing retention and progression of underrepresented groups at the Bar. The programme has identified a number of interventions that are required to support retention and progression of under-represented groups, which they are currently taking forward.

Nonetheless, the trend for a lack of comparable retention still persists. The difficulties of practising at the Bar while having childcaring responsibilities and balancing family life with a career at the Bar was seen as hugely problematic when the Bar Council conducted research in 2014-15[2], and the recent BSB figures suggest that the problem is a long way from being resolved.

There are of course variables within practice areas. The criminal bar, with its unpredictable system for listing trials and requirement for last minute and out of hours preparation, has been warning of huge difficulties in retention for some time, well before the catastrophic impact of Covid-19 on the profession. In 2019, Chris Henley QC, then chair of the Criminal Bar Association, writing in Counsel magazine[3], ‘During my time as Chair I have become completely convinced that nowhere near enough is being done on racism and sexism, right across the whole of the criminal justice system, not just at the Bar but certainly including it. There is such an entrenched reluctance to do much if anything about it and not enough priority is being given to the profession’s wellbeing from the senior criminal judiciary. It is causing the haemorrhaging of talented women from the profession.’

 More recently, the criminal bar has continued to suffer losses of young talented barristers, as highlighted by the Secret Barrister in the Guardian article, “Diversity of criminal bar at risk as junior barristers forced to quit,” (August 2020[4]).

Research has also highlighted issues of work allocation and income disparity, with female barristers and barristers from minority ethnic backgrounds likely to earn less than male and white barristers respectively[5]. That has led to recent initiatives for example on the North Eastern Circuit with additional training for clerks specifically looking at gender issues and the fair allocation of work.

Specific challenges

 The Bar now faces a significant problem for the retention of all those with caring responsibilities in the form of extended operating hours. Despite piloting the scheme in 2020, and then deciding not to continue with it in February 2021, in July 2021, the Lord Chancellor Robert Buckland backed Ministry of Justice proposals to introduce new “temporary operating hours”, with two models that will run alongside normal operating hours. This will involve jury trials running either from 9am to 1pm, or 2pm to 6pm, but the ultimate decision about whether or not the scheme

A previous survey conducted by Women in Criminal Law highlighted the devastating impact that these extended hours will have on women[6]. The impact on childcare or other caring arrangements, impact on mental and physical health and the impact on work/life balance were the most commonly relied on objections. Critics have pointed out that the court estate has been diminished in recent years by substantial closures of courts, which could have instead been used to meet the demand and backlog.

Extended operating hours have also been seen on an unofficial basis in other areas of work, particularly in cases dealt with remotely. The advance of fully remote cases in the family court has led to an increasing number of case management hearings being dealt with from 9am onwards. That involves prehearing discussions and advocates’ meetings from 8am onwards, at a time when parents are juggling children and the school run. Before remote hearings were commonplace, that time was commonly spent travelling, which ironically removed the likelihood of a busy working mother multi-tasking and feeling under pressure to do and be all things to everyone. However, a balance between remote and hybrid working, if approached with an awareness by the judiciary and colleagues that working from home does not equate to 24/7 availability, can provide a useful method to bring better balance to life and the profession.

The way ahead

 What then can be done in terms of solutions? There is increasing awareness of the need to support women at the bar, as shown by the popularity of groups such as Women In Family Law, the Association for Women Barristers, Women in Criminal Law, the Western Circuit Women’s Forum, and the North Eastern Circuit Women’s Forum, to name a few in an ever growing list. Senior female members of the bar continue to mentor, to lead by example, in order to demonstrate that this is a profession in which women can succeed, with the right support. That support has to come from our clerks and senior colleagues, as shown by the Western Circuit Women’s Forum October 2019 report entitled, “Back to the Bar: Best Practice Guide Retention and Progression after Parental Leave”.

 If chambers want to retain the talented female youngsters that start life with them as pupils, and support them as they grow into senior juniors and QC’s, they need to have transparent policies in place to promote a return to work after parental leave, flexible working, and anti-bullying. Issues such as support through the menopause, and an openness about symptoms and the need for support are vital to the mental and physical health of women who are juggling the demands of a family, career and ever evolving hormones. A vital part of the support is the management team within chambers including the senior clerk, which must actively expect work to be fairly allocated, and promote good communication with the clerking team. All of these are key to retaining women at the bar, and encouraging them to grow their practices towards judicial appointment and silk applications. It cannot and should not take another 100 years[7] to make further progress towards equality at the Bar.

[1] Trends in demographics and retention at the Bar 1990 – 2020 (BSB July 2021)

[2] Bar Council – Experience of self-employed women at the Bar 2014-15.

[3] https://www.counselmagazine.co.uk/articles/in-the-thick-of-it-chris-henley-qc

[4] https://www.theguardian.com/law/2020/aug/31/diversity-of-criminal-bar-at-risk-as-junior-barristers-forced-to-quit

[5] BSB (2020) Income at the Bar by Gender and Ethnicity.

[6] https://www.criminalbar.com/wp-content/uploads/2020/09/WICL-EOH-Report-Results1.pdf

[7] https://first100years.org.uk/

By Jacqueline Thomas QC, Joint Head of Chambers, Spire Barristers

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