2022 will be the centenary of the first women to be called to the Bar in England and Wales (Dr Ivy Williams on 10th May 1922 and Helena Normanton on 17th November 1922) . Despite this passage of time the Bar remains majority male (61% Bar Standards Board Annual Report 2019-2020) and despite healthy ratios of women to men at admission stage (54.8 % female pupils to 45.2% male – same source) the attrition rate for women at 10-15 years Call is alarmingly high. The reasons for this are manifold but causes include juggling competing demands of child care and court sitting and preparation hours, women traditionally being sidelined into emotionally demanding but financially unrewarding areas and also insufficient support as they progress through their professional lives.
As the causes are multifactorial, they have to be addressed from many angles and in partnership with those who can make a difference. The last few years have seen high impact initiatives such as the Bar Council Wellbeing at the Bar scheme initiated by Sam Mercer and Rachel Spearing working in partnership with the Circuits, Inns of Court, Specialist Bar Associations and the Institute of Barristers Clerks. The scheme has raised awareness of issues, provided resources on the wellbeing hub and contributed to a change of culture. There is still much to do before protocols around the sending and receiving of emails out of working hours or having a full hour’s lunch break is fully observed and embedded, but there is progress on this front. It is increasingly acknowledged that working around the clock is not only bad for health but it’s poor for business. Many decisions that we have to make as lawyers are judgment calls better made with a clear head on a full stomach.
Other initiatives working on resolving retention and work life balance issues include Mentoring schemes provided by Specialist Bar Associations such as the Chancery Bar Association, the Bar Council and each of the Inns as well as cross professional collaborations such as the Women in Criminal Law and Themis.
It’s hardly a profound observation that all of this has been heavily impacted by Covid19 and repeated Lockdown. My practice areas (Crime and Regulatory) immediately ceased in person trials hearings in March last year, though Regulators were able fairly swiftly to pivot to online hearings to no material detriment, in my view, other than not being physically present with a client and easily obtaining updating instructions and providing moral support to them in person. The Family Bar by sheer force of necessity and determination managed to keep the show on the road by way of remote video and telephone hearings. Health and Safety Executive approval for Crown Court Covid measures took a little longer, and despite temporary “Nightingale” Courts coming on line there remains a backlog of Crown Court cases.
Although Barristers were designated as key workers at a relatively early stage of Lockdown 1 many parents had to juggle work and homeschooling. A collateral benefit of all of this (anecdotally) is a more even distribution of child care responsibilities, the downside has been the necessity to complete working tasks at the extremes of the day in opposition to wellbeing protocols.
Cashflow has inevitably been impacted and eligibility for Government support was sufficiently restrictive that very junior Barristers who had not filed a Tax Return were excluded and the ceiling on turnover sufficiently low to exclude a sizeable number of other Barristers. There was limited relief in deferral of VAT and Tax payments til 2021. Form some, Bounce back loans and Covid Business Interruption Loans (CBILS) bridged some of the gaps.
The Bar Benevolent Association and each of the Inns of Court has emergency funds which have paid out significant sums to those in need.
Notwithstanding these measures I surmise that both the financial uncertainty and opportunities for reflection and re-evaluation of the impact of working life both before and during Covid may lead to a further hemorrhage of woman at the Bar, notwithstanding the many supportive measures in place. I hope I wrong about that.
Turning to the issue of career progression, there are many mentoring schemes in place to encourage under represented groups. Since the creation of the QCA (Queen’s Counsel Appointments in 2005) there has been an uptick in the number of women appointed annually. Nevertheless the ratio of female Silks remains low (16.2% are women) and it will take years to approach anything like parity.
So what deters women from applying? One assumes deterrent factors such as fear of failing in the application or conversely fear of succeeding in the application and seeing a busy Junior practice vanishing overnight. There are also insidious influences demonstrated by a recent experience of a highly regarded female Barrister friend of mine instructed as a Leading Junior in a multi handed criminal trial. Though extremely capable and able to hold her own in any company, she was repeatedly excluded by all the other leading Counsel (exclusively men and some who demonstrably should know better) from out of court conversations collectively discussing aspects of the case. She was also (arguably worse in some ways as it was open court and this in public) interrupted and spoken over by male Counsel when make her points to the Judge. She found the whole experience excluding and demoralising. Being as charitable as one can be about that sort of behaviour it demonstrates an unconscious bias which favours the male to the exclusion of the female, at its worst it’s bullying.
Even the most open and progressive organisation can be open to unconscious bias. If I had a pound for every meeting I attended where men dominated the airtime with what can best be described as “mansplaining” even on issues directly affecting women, with limited time ( or tolerance) given to those with “lived experience” I would be considerably well off. There should be no setting in the workplace or anywhere where a woman does not feel that her contribution does not hold equal weight.
It is not all gloom. The roll out of the vaccination programmed the light at the end of the tunnel. The pandemic has allowed people to re-evaluate working practices and ways of conducting court hearings which will, undoubtedly remains. Mentoring schemes exist to empower people to do the job they have studied and worked hard for and the convenience of working from home will undoubtedly remain long after it is necessary to do so. I hope in time that wellbeing protocols will embed sufficiently that the “macho” culture of working all hours and boasting about it will become a thing of the past and that in time we will come to see this last year or so as both “the best and worst of times”
Louise McCullough, barrister,