PERHAPS THERE’S NO better place to start our survey of inequality than with Eve. One of my maternal grandmother’s old wives’ maxims was that there would be no bad men if there were no bad women. After all, woman was responsible for the original sin. This world view, which would usually be expounded as she swept vigorously around me while I attempted homework on the kitchen table, filtered through our days.
I swallowed the idea that women should generally be expected to behave better than men, since there seemed ample evidence that they did so anyway, and I could see no harm in keeping up the standard. At every point in my Catholic girlhood the Virgin Mary was presented to us as our role model. Men were simply victims of their own appetites, hardly capable of free will when it came to sex or violence, and it was up to us to act as the restraining influence. However, my sense of natural justice baulked at the idea of holding women responsible for male transgressions. Why should women be considered the moral cornerstones of society? Does motherhood really carry with it such an overwhelming obligation? Ejection from Paradise is one thing, but a sentence of eternal damnation when the conviction had to be based on the uncorroborated testimony of a co-accused must surely constitute a breach of international standards on human rights. It was only later, when studying law, that I came to the conclusion that Eve had been framed.
Law comes out of deep cultural wells. The earliest sets of rules and laws laid down a subordinate role for women. Women were busy doing the procreating. The religions within our societies are the bedrock of law systems and all the major religions give women lower status, have myths of woman as the lure towards wickedness – the Eve. And then we have the compensatory myth promulgated by men of religion that women are in fact the better gender, too special in the schema to be burdened with certain kinds of power. More times than I can count, I have found myself in hot debate with priests, rabbis, Muslims, Hindus and many other people with deeply held faith, all of whom insist that their holy books prescribe a special role for women that allegedly places them on a pedestal of privilege. Better than equal, they claim. It may all sound outdated, but unspoken belief systems are rooted in the soil of ‘proper womanhood’, even though we have moved on. This does not mean we cannot be CEOs, doctors and lawyers too, but it still means our behaviour is expected to conform to entrenched notions of what is truly feminine or female.
Myths are tent pegs which secure the status quo. In the law, mythology operates almost as powerfully as legal precedent in inhibiting change. Mythology is a triumph of belief over reality, depending for its survival not on evidence but on constant reiteration. Myths are not the same as lies, in that they do not involve deliberate falsification. They endure because they serve social needs. The notion that judges, and the institutions of law in which they are forged, are invariably impartial is pervasive and unreal, but it is supposed to sustain our faith in the legal system.
Mythologies do change. They also vary between different groupings, but what matters are the dominant myths which receive institutional reinforcement daily in the administration of justice. But for those mythologies to change a concerted effort to reform from within is required. Most legislation and case law nowadays has the semblance of neutrality, and some legislative changes are designed to improve the position of women, but the letter of the law can easily become a cloak for the reality.
For me, coming to the Bar was almost an accident. A law degree was an escape route from the original plan to study English in Glasgow, and was devised after weeks of panic in London where I was doing a summer job. There, I had breathed the air of other possibilities, a world beyond. It was 1968 and student uprisings were happening everywhere, from Paris to Grosvenor Square. There was opposition to the Vietnam War and the talk was of revolutionary change. It was intoxicating and I did not want to miss out. But the pleasure my family had taken in the first of us going to higher education meant that any proposed alternative to my original plan of studying at home had to satisfy their anxieties about the unknown, and fulfil their hopes that I might end up with a good job.
The only professional women they or I had ever known were school-teachers, who in those days seemed to have a better material life than any other women we knew. Yet there was a certain predictability in heading towards teaching which made me want to resist it. I wanted to do what was not expected of me. The only other person I knew with a degree had read law, and its mysteries had caught my imagination. I was seduced by the drama of the Bar.
My father, a soft-hearted, intelligent man, had left school, like my mother, at 14. He worked as a dispatch hand in the print industry and was active in his union. I remember his passionate belief in the Labour movement and his pride in the changes which had been won in his lifetime. He thrilled to the idea of my doing law, especially when I said I wanted to be a trade union lawyer. I’m not sure where I picked up that idea from, but it seemed like a way of being professional without sounding too highfalutin.
My mother was surprisingly quiet at my decision. To her, London was purgatory, if not hell, and she muttered about things coming to a sorry pass. She had much more faith in holy water than the legal system, and merely getting involved in that world alarmed her. Her line was that any normal person would be thrilled at the chance of being a lady teacher, and she ignored my refrain about not knowing any boys who had that ambition.
When some of my relatives were told I had joined ‘Gray’s Inn’ and was studying for the ‘Bar’, they imagined I had gone in for hotel management or catering and could not understand why anyone would pass up Glasgow University to do such a thing. The mysteries of the legal system in Scotland, let alone England, had rarely impinged on our lives, save for shamed references to cousin Bertie, who had ingeniously wired up his electricity to the street lighting and seen the inside of Barlinnie. Against this well-meaning resistance I just had to succeed; however miserable I was, there could be no complaining. And was I miserable! Like childbirth, nothing had really prepared me for it.
I had not been in criminal practice for long before I realised that special rules apply in, for example, rape cases; I saw some male jurors winking their support for my male client before the alleged victim had even finished her evidence. I also learned very quickly, like every other lawyer worth her salt and her fee, that the nearer I could get to painting a female client as a paragon of traditional womanhood, the more likely she was to experience the quality of mercy. If a woman with a weakness for bovver boots could be persuaded into wearing pearls and a broderie anglaise blouse she might just tip the judicial scales in her favour.
The first case I ever handled was for a woman who was pleading guilty in the magistrates’ court to shoplifting. The items were children’s clothes, and I was reassured by all the old hands that nothing much would happen to her; women always got off lightly and she would probably be fined, even if she did have a couple of previous convictions. I arrived at court and found my client in a state of great anxiety because she had not been able to make any arrangements for her children. It turned out that she had a suspended sentence of imprisonment outstanding which, in some bid to deny the inevitability of going to jail, she had failed to mention to my instructing solicitor. Like so many poor women, she had no resources to pay a fine and the courts had on previous occasions run through what they saw as the alternatives: a conditional discharge, then a probation order, then a suspended sentence and now the real McCoy. In this miserable first experience, I watched my despairing client being taken off to Holloway, weeping for her children.
It does not do wonders for your confidence when your first client is packed off to jail, however hopeless the case, but I hung on in there, doing a particularly active trade (which I thoroughly enjoyed) in my early years representing fellow Scots, marauding tartan-clad supporters who had been involved in displays of male camaraderie after Cup Finals. I suppose I was instructed on the assumption that I would be able to translate. While every other woman in the law tells stories of being taken for the solicitor’s secretary, I was generally taken for the defendant’s sister. Young black women in the law tell me the same assumption is made about them. I also had a significant clientele of Glaswegian prostitutes, whose families all thought they were down south working with the Civil Service. Some of them sent home money for babies their mothers were rearing for them; others had children living with them whom they looked after perfectly well, despite all belief to the contrary.
The early years of every barrister’s practice are spent gaining experience in the lower courts. As a woman intent on criminal work I often found myself in the juvenile and magistrates’ courts representing women and children, because in the dispersal of legal crumbs by solicitors or clerks the soft end of offending went to the girls. Even as I have progressed up the ladder into serious crime I have always represented a proportionately higher number of women and young people, since in the expectations of the courtroom it is an appropriate role to play.
The arrangements and language of the law would bemuse any bystander, and when you add to that the whole complicated system of courts, with its different divisions ranging from the local magistrates’ court to the Court of Appeal, it was no wonder my relatives were bewildered. It sounded like a queer profession where you had to eat dinners as well as pass exams to qualify, something only the English could have thought up. I stepped from the equivalent of a comprehensive school in no mean city into the pages of an Evelyn Waugh novel.
Lectures were the least of my problems, providing a happy respite from social contact. The Inn robing room, where we put on a legal gown for dining, was the real class divider. Here, like the Queen, women carefully knotted silk headscarves in front of their chins rather than under them, and talked about weekend house parties and ‘cockers-pees’, which after enough eavesdropping I realised were nothing more vulgar than cocktail parties.
Sixties radicalism had certainly not had its way in the Inns of Court. Down the road at the London School of Economics, students were in revolt at how the school was governed; everywhere young people were demonstrating – against the war in Vietnam, then at its height, and against apartheid, demanding disinvestment in South Africa. Meanwhile at Gray’s Inn, except among a very few, the main topics of conversation were the Field Club Ball and the Fencing Club. There was even a Smoking Concert after dinner during each Trinity term, from which women were excluded because of the ribald nature of the proceedings. Hall was supposed to represent the heart of life as a Bar student. Here, in the rarefied atmosphere of the beautiful wood-panelled room, dining was to present the opportunity for exchanging learned legal footnotes and scholarly opinions on case law.
I did not know anyone in practice at the English Bar when I started, which is the experience of most ordinary folk, and I did not know where to begin when it came to beginning life as a barrister. So I persuaded a friend who qualified the year before me to introduce me to his pupil-master, whom I then bludgeoned into taking me on, despite his warning that I would hate it in his chambers. He was absolutely right.
Chambers are the rooms in which barristers work, traditionally cloistered within the Inns. There is an architectural coherence about these male institutions: public schools, Oxbridge colleges, Inns of Court, Houses of Parliament. They combine opulence with austerity. The entrances to many sets of chambers resemble the closes of Scottish tenements, stark and bare-boarded. The conditions within are usually cramped like a book- and leather-bound womb. The lavatories might interest the public health inspectorate. Within sets of chambers, each barrister is self-employed, but there is a unity and interdependence, particularly in the early stages of practice, with work switching between barristers. Chambers, therefore, means more than shared offices and involves embracing the corporate identity of your brethren.
The clerks in my pupillage chambers did not like women and acted as though I were a piece of flotsam that had drifted in by mistake. Standing in the clerks’ room trying to secure their attention was like trying to get served in the Harrods perfume department when you are wearing your old anorak. There were no other women, and the male barristers minded the invasion of their all-male sanctum. The discrimination was blatant, and some sets of chambers openly declared a no-women policy.
The story for black, Asian and minority ethnic (BAME) barristers was even worse. In 1979 there were only 200 ethnic minority barristers in independent practice. Most of those practised from chambers entirely comprised of those from ethnic minorities, and their work came largely from the minority communities. A committee was set up at the Bar to look at racial discrimination. In 1989 the Bar Council commissioned a survey which showed that in multi-racial Britain more than half the chambers did not have a single black or Asian tenant and that 53% of non-white barristers were ghettoised in a small number of chambers. This empirical research led to the fiercely debated Bar policy of setting a target of at least 5% ethnic minority lawyers in all chambers.
This positive action has resulted in huge change. According to the most recent statistics on diversity at the Bar, BAME barristers make up around 12% of the profession. BAME pupils account for around 16% of all pupils, a figure which is broadly in line with the ethnic make-up of England and Wales as a whole. Yet racial inequality continues to limit access to the upper echelons of the Bar, with ethnic minority barristers still representing only 6% of Queen’s Counsels (QCs), the profession’s most senior practitioners.
It is difficult to find concrete information on the class background of barristers. There is no universally accepted metric by which socio-economic status can be measured. Even asking education-related questions as a proxy for class ones produces limited results, with barristers playing their cards close to their chests. In the most recent round of monitoring questionnaires, nearly 70% of the barristers who responded did not disclose whether they went to a private school, or had university-educated parents. Nevertheless, the Bar Standards Board had enough information to conclude that, even in the unlikely event that all the non-responders had attended state schools, a disproportionate percentage of barristers are privately educated when compared with the country as a whole. Other studies have estimated the proportion of privately educated barristers and Counsel to be as high as 75%. The same percentage of High Court and Court of Appeal judges are products of public school, and the same proportion went to Oxford and Cambridge. Occasionally the less privileged do join the ranks, and that number is slowly growing. As of 2016, two out of 12 Supreme Court justices were grammar-school, as opposed to privately, educated. However, the men on the bench often find it hard to even imagine the lives of the really disadvantaged or the young. The average age of judges in this country is between 60 and 65, which coincides with the time when most other people are retiring. And according to the most recent official judicial diversity statistics, only 22 High Court judges out of 106 are women, with women making up only 9 out of 38 judges in the Court of Appeal. Across the High Court and Court of Appeal, there are only two judges who are not white. Everyone on the Supreme Court is white.
It is hard to avoid the conclusion that still too few men and women from different backgrounds find their way into practice. The introduction of tuition fees has made it much worse for students today, who come out of university with massive debts before they even embark on pupillage. The proliferation of universities since 1993, when the former polytechnics were able to acquire university status, has meant a huge expansion in the offer of law degrees to students. Policymakers, convinced that the future lay in knowledge economies, encouraged many more of our young to acquire higher education. Since higher education changed my life I have been a great supporter of widening participation. Unfortunately, opportunities to actually become professional lawyers have not been commensurate. The increased supply of law graduates has coincided with disgraceful cuts to legal aid and a constriction in recruitment by chambers and law firms of newly qualified lawyers. After obtaining a law degree or doing a law conversion course a student who wants to practise law faces a choice of acquiring a vocational diploma either for the Bar or to become a solicitor. The private providers with whom students must undertake this training charge enormous fees. So, for many, further debt is acquired. After this outlay and additional set of exams they must then secure a ‘pupillage’ in chambers for practical training at the Bar or a training contract with a firm of solicitors. Places are now few and far between and competition is fierce. My long-standing fear has been that the combined deterrents of financial burden and scarcity of places will turn the Bar back into the preserve of the well-to-do.
The wealth gap is being to some extent plugged by the estimated £5 million in funding and scholarships now provided by the Inns each year. These scholarships are vital in ensuring that the Bar doesn’t end up as a career that is out of the reach to all but the very few, and they are an important statement of the Inns’ commitment to ensuring equality of access to the profession. Some scholarships are reserved for students who come from disadvantaged backgrounds, have a disability, or plan to undertake publicly funded work. The vast majority take the applicant’s financial means into account. Yet there are problems here, too. Even though chambers are now obliged to provide financing for a number of pupils, the effect of this has been to reduce the number of pupillages because of the cost to chambers. Another problem is that most students are obliged to spend their awards on their vocational training, leading to a revolving door between the Inns’ coffers and the bank accounts of the private providers. As a result, the Inns are now seeking to reintroduce their own in-house training, at a significantly reduced cost.
There were no generous scholarships available when I was starting out. And it was clear to me that I was not likely to be taken on as a tenant, a fully recognised member who has his/her name on the door and thus officially becomes one of the barristers practising from those chambers. Obtaining a tenancy was extremely difficult, because the number of those emerging from pupillage and looking for tenancies considerably outstripped that of available spaces. So I joined forces with five other novice practitioners of radical inclination and decided to establish a new set of chambers in 1974. We were from the outset committed to gender equality and there were three men and three women – all of us feminists. We were also keen to break with the normal ways of organising chambers. Even in chambers where there were women, men often got preferential treatment because of the biases of the clerks. We found a very junior clerk to manage our work, and innocently launched into practice.
I have been involved in the creation of three new sets of chambers. In all of them we sought to challenge discrimination; we pioneered maternity leave and introduced before any other chambers the payment of pupils. After 10 years with the first set of chambers, Garden Court, in 1984 I joined Michael Mansfield in another new endeavour, Tooks Court, where we made a strong commitment to ethnic diversity. Len Woodley QC, who would become one of the first two black QCs in the country, was one of our leading members, and half of our juniors were from an ethnic minority background. Then in 1989 I moved to Dr Johnson’s Buildings – the chambers of John Mortimer QC – where a group were planning yet another new enterprise, which became Doughty Street Chambers. This group were already engaging with international human rights. I was keen to develop my practice in this area and worked with some of them through Charter 88 on the creation of a British bill of rights, which became the Human Rights Act. Our new set was created in 1990 and I became a QC one year later.
One of the key principles in each of these chambers was that we would not entertain having clerks paid on a percentage of the fees paid to individual barristers as it gave them too much power to determine who got work and what kind of work it should be. Traditionally, clerks earned 10% of their barristers’ earnings. Over the years this was slowly eroded to 7% or even 5%, but still very high sums were involved. Others earned a percentage of their chambers’ turnover, which meant they could make as much as QCs, sometimes in excess of £500,000. Not surprisingly, they held on to their sinecures with an iron grip.
Since clerks so often viewed women as a bad investment – women might take time out to have babies and time off during school holidays – and would channel women’s practices into softer areas of law as they saw it, I felt clerks had to be salaried. That way we could do public interest work without the financial clock ticking and large amounts of pro bono work too. In Doughty Street we organised chambers like a very modern business with a practice manager and administrator. We reshaped chambers so that we had conference rooms rather than individual rooms for many of the barristers and a shared library and librarian for research. Senior members employed PAs to help run their professional life, and we paid an overall percentage of our incomes into chambers instead of rent. We were also outside of the Temples. We wanted a whole new efficient way of operating.
Before long, others followed suit. In the 1990s, to survive the removal of monopoly rights, with accountants and solicitors and in-house corporate lawyers increasingly taking on areas of work traditionally handled by the Bar, chambers realised they had to be more competitive and businesslike. They were being forced away from the quill pen and into intimacy with new technology. They needed a different infrastructure. Clerks were increasingly replaced by salaried practice managers and chief administrators, often women, who came from experience in the City and marketing and who were only too willing to realise the potential of women in the law so long as it was a money-spinner. A new generation of clerks emerged which saw women as a resource not to be wasted. Yet none of this meant that the old problems were entirely eradicated. Even today, there are reports of women barristers finding it difficult to obtain the kind and quality of work they want. The suspicion lingers that in some chambers the best cases go to the remaining clerks’ favoured, invariably male, barristers.
Many of the problems women and others have faced in the legal profession are similar to those encountered in any job. The law is not the only profession in which people have got jobs through having the right social connections, or knowing the right people or having gone to Oxbridge. Nor is it the only occupation in which style, appearance, demeanour and self-confidence play a large part in success. As Mary Beard, the classical scholar, pointed out in her book Women and Power, the roots of misogyny go back to ancient times where it was made clear that the voices of women were unwelcome in public discourse. However, as well as the traditional legal and cultural obstacles, there are also structural problems. Women have to overcome the handicaps created by the already established tracks which divide the profession into elite and non-elite areas, and where they find themselves more readily functioning in areas that are undeservedly less prestigious, such as family law, child protection and low-level crime.
In 1990 I stood for election to the Bar Council specifically on the platform that I wanted to raise issues affecting women. I had realised that the only way to create real change was to engage with the institutions where power lies. Once I was a member of the council I argued for the creation of a women’s committee, like the one which existed on race discrimination. I was accused of political correctness – an argument invariably made by those who want to maintain the old order. The male leader of the North Eastern Circuit – the grouping of barristers practising in the Newcastle and York area – berated me for having the audacity to speak for all women and insisted that the women of his circuit were perfectly happy, thank you, and did not need me to complain on their behalf. I would have preferred to have heard it from them, and in private. The point of a committee was that it would draw in many different women and that is when you see change.
With the support of the new Association of Women Barristers, and Anthony Scrivener QC, who was then chairman of the Bar, we secured the creation of a committee in 1992 under Sir Stephen Sedley, an enlightened judge. Women experienced discrimination when they applied for pupillage, when they applied for tenancies, when they applied for silk and when it came to the appointment of judges. The research was conclusive and confirmed what many of us knew. The remit of our original committee has since been expanded to encompass a wide range of equality, diversity and social mobility issues, and is all the better for it.
Since then there has been real change. Gender discrimination moved into the mainstream. From 2012, all chambers have been required to maintain a comprehensive equality policy, with an appointed equality officer, and to monitor their performance against a wide range of equality criteria. Compliance has been patchy, with a 2016 survey finding that 50% of chambers were failing to adhere to all or some of the equality rules. It does seem that the Bar itself is slowly beginning to recognise that principles of fairness, as well as the need to secure the best candidates, require the equitable treatment of men and women, yet intersectionality is an issue at the Bar as everywhere. Young women from working-class backgrounds find it harder because of the financial burdens in getting started, and young black women face additional hurdles. The combination of different types of discrimination can be especially insidious and persistent, and the answer is particularly hard to crack.
Despite protestations that discrimination is a thing of the past, change has not gone to the core. Today women represent nearly 50% of practising solicitors and 37% of barristers. Yet throughout their careers women in the law earn significantly less than men. Female solicitors are still failing to gain promotion in sufficient numbers.
Women participate less in the interstices of the law – the circuit dinners, the cricket matches, the golf, the wine committees, the Bar Council and specialist Bar associations. They are likely to know fewer judges socially and will not be championed in their career rise in the same way that men are. Legal cultures are premised on notions which are themselves exclusive. A woman MP, acknowledging similar problems in the House of Commons, described men ‘talking up’ an aspirant male colleague in a way that would rarely be done for a woman. The lubrication of patronage is not as readily available to facilitate the rise of women. Although there are considerably more women than men at the junior end of the profession, women are much less likely to reach the holy grail of partnership, which is the most senior and best remunerated status a solicitor can hold. Despite significant progress in some regions and sectors, women accounted for only 33% of partners in law firms in 2015. The picture is much worse in the biggest City firms, where it is not uncommon for female representation in the partnership to dip below 20%. Women’s pay is also driven by the areas of law in which they function, with women more likely to develop specialisms that are less glamorous and less well paid.
It is a similar story at the Bar. Only around 14% of QCs are women. As of 2013, women made up 61% of family law practitioners, who often undertake poorly paid, publicly funded work. Meanwhile, 75% of the barristers bagging the lucrative commercial and chancery work are men. Until comparatively recently women played no part at all in the construction and content of the law, but even now their role in law-making is seriously limited. Before 2003 there was no woman at all in the Appellate Committee of the House of Lords, our highest court. The appointment of the brilliant Brenda Hale to Their Lordships’ ranks was long overdue. In 2009 the committee was abolished and the Supreme Court was established with 12 justices and again Brenda Hale remained the sole woman. It took eight more years before she was joined by Jill Black in 2017, making just two women at the apex of our legal system. Fortunately, the parliamentary role in law-making has been improved by the increasing presence of women in the legislature as MPs and peers. Female representation in Parliament reached a record high following the 2017 general election, and the fact that as I write the prime minister and the Scottish and Northern Irish First Ministers are all women shows that genuine progress is being made. Yet men still dominate, with women still only making up 32% of elected MPs.
Research conducted and published in 1998 showed that between the ages of 29 and 36, the number of women leaving the Bar was twice that of men. Depressingly, the picture is much the same 20 years on. Women continue to have a disproportionately higher attrition rate than men, with nearly 70% of female barristers who participated in a 2016 study claiming to have at some point considered leaving the Bar, and if current industry conditions prevail, we are unlikely ever to achieve a 50:50 gender balance among all practising barristers.
For many years, the lack of research on the topic required us to make (fairly obvious) guesses as to the reasons why women were leaving the Bar in such droves. Today, studies have confirmed long-held suspicions; women’s most commonly cited reasons for leaving include family commitments and the difficulties of combining the long-hours culture of life at the Bar with caring responsibilities. As self-employed professionals, barristers are not entitled to the same maternity protections available to most people. Under new Bar equality rules, all chambers are required to have a maternity leave policy, which must provide for rent breaks and a minimum period of leave. Within these fairly broad parameters, however, chambers can set their own policies. And then there is the age-old problem of ‘out of sight, out of mind’, with women on maternity leave often feeling out of the loop or overlooked. All in all, it is not surprising that nearly three-quarters of women from the 2016 survey stated that taking maternity or parental leave impacted on their practice or career progression. In 2017, the decision was taken to change the Bar equality rules to enable all self-employed barristers to take one year’s parental leave, regardless of whether their spouse or partner also takes parental leave. It is to be tentatively hoped that this rule change will go some way towards reducing the disadvantages experienced by new mothers at the Bar.
Women also leave the ‘magic circle’ City law firms in their thirties citing dissatisfaction with the nature of the work, saying they find it unfulfilling. While this may be true, research suggests that the ‘adaptive principle’ may be operating as well, whereby women recognise the limits on their opportunities for promotion in a given environment and leave because they are adapting their views of the work to those limitations. Crucially, losing women in significant numbers for any of these reasons also dilutes the pool from which judges will be drawn five or ten years down the road.
It is true that the last five years have seen a concerted effort to both understand and improve women’s prospects at the Bar. The increased emphasis on gathering diversity data has been critical to this effort, as has mandatory equal opportunities policies. Yet the problem remains one of how to implement good intentions; a quick glance below the surface reveals that there are often inadequate structures to turn the aspiration of equality into a reality. In the law schools there have been more female law students than men for a number of years now, and they are coming through with excellent qualifications, often far better than the men. Some of those now coming to the Bar are mature women making a courageous career change. They deserve to be in a profession which is flexible enough to embrace their family responsibilities as well as their talent. A new generation of men at the Bar also think differently about fatherhood. They too want to spend time with their children and many are living with women who expect them to take their share of the domestic load. A self-employed profession like the Bar should be eminently suited to new ways of working and it is time the Bar mothered some creative structural change.
Another problem about the self-employed Bar is that each step up the ladder relies upon relationships of goodwill. Securing briefs means being smart and good at the job but it also means being liked by solicitors or by a senior counsel who chooses you as his or her junior on a big case. Getting a pupillage or a tenancy again involves having people rooting for you, being your champion. These goodwill relationships lend themselves to exploitation. The misuse of a young lawyer’s determination to impress can lead to unfair work demands but also inappropriate requests of a sexual nature, especially if you are a young woman. Sexual harassment is common in the legal profession. Working with someone privately on very challenging cases can easily lead to the relinquishing of appropriate boundaries. Young women tell stories of QCs presumptuously booking double rooms when they go out of town with them to do cases or of solicitors promising briefs in high-profile cases if favours are received.
The raised public profile of sexual harassment cases in 2017 has brought into existence Behind the Robe, an organisation to which victims of abuse at the Bar can turn for guidance. The fear that reporting misconduct will blight their careers or lead to reprisals has stopped complainants taking steps against this abuse of power. Until now it has also been unclear where to turn as everyone is self-employed. Unfortunately, senior women in the victims’ chambers are sometimes unsupportive, recounting their own ability to beat away sex pests when they were young and insisting that if a woman cannot deal with a sexual nuisance she should not be at the Bar. This is the kind of comment that adds to the feelings of misery and self-doubt that haunt women who experience harassment or bullying. Clear policies are now being created across the legal profession, and chambers should be asking abusers and harassers to leave if misconduct is established. The Equality Act 2010 makes it clear that a sexually-laden environment constitutes discrimination at work.
As I started to practise law, it became increasingly clear to me that, wherever they stand in the courtroom, women have to fight harder to gain the same authority or credibility as their male counterparts. As soon as it was announced that the alibi witness was a wife, girlfriend or female family member, eyes would often roll to the heavens in tacit agreement that her testimony would be worthless. I used to think that women police officers would be seen as especially worthy of trust, given that they have not been tainted by police corruption scandals and are portrayed in television dramas like Prime Suspect and Happy Valley as tough but tender and ethically unimpeachable. However, women in the police force tell me this is not true. It is assumed that, like women in the family, they are seen as less trustworthy, they will lie to save the skin of male colleagues, or be even more ruthless when on a crusade to convict an accused. Female lawyers often describe being patronised and marginalised, their legal arguments given greater weight when repeated in the mouths of male colleagues. It happens in all the main institutions. In the House of Commons, male politicians still feel entitled to make ‘woof-woof’ noises at their female colleagues, or advise them to ‘calm down, dear’.
The Bar is not an easy choice for women, for reasons other than the same old prejudices. It can be very hard to compete publicly and enter into open debate with men. We are still not educated adequately for it. We are still training women not to offend. Women on public platforms or around board tables are still not heard because they rarely make full use of their authority and too often use language which men do not hear.
Advocacy is about communicating and persuading, something women can do as well as men – they are often more down to earth and less pompous. It requires the marshalling of material, research, the ability to charge your argument with imagery. It involves an interplay of the cerebral and the emotional, with a shifting of emphasis between the two, depending on your recipients. You have to be quick on your feet and have a good memory. Confidence and skill in advocacy come from doing it repeatedly, but irascible judges don’t make the going easy. I try to encourage female pupils to watch other women in court, to show them that they do not have to behave like men or function in any way that feels unnatural.
But criminal advocacy can raise a particular problem for women precisely because it is the most adversarial arena in the court system. You have to enjoy the taste of blood and some on the bench feel uncomfortable with assertive women, an ambivalence that becomes very clear when arguments are heated. Not long ago, in cases involving a female barrister on both sides, interventions of the ‘come now, ladies’ variety were common, said in a tone which suggested that some kind of catfight was breaking out. Even today, genteel charm is still the expected role; aggression is considered phallic, certainly unattractive in a woman. The way we continue to socialise girls means they are taught to avoid confrontation and encouraged to please. Both can be useful skills in advocacy, but in courtroom battles you also have to be bold, and having a cross daddy figure up there on the bench can create a real identity problem.
Quite unjustly, women continue to be not as highly rated as advocates as are men. Samuel Johnson’s old adage still holds: like performing dogs, the surprise is not that they might do it well but that they do it at all. In my student days Glanville Williams: Learning the Law was set reading and in it he unabashedly asserted that women were not usually suited to the Bar because their voices did not have the right timbre and were hard on the ear. Subsequent versions were trimmed of the offending remarks but not before their poison had been swallowed by generations of women. Yet, as recently as 2001, a civil judge in the Royal Courts of Justice, Master Robert Turner, wrote a guide to advocacy which criticised women lawyers for being too quietly spoken. The possibility that he might be a touch deaf had not occurred to him.
Fortunately, women are becoming much less vulnerable to the criticism that only tough old boots survive in the criminal courts. I was constantly told by colleagues that the word among certain judges was that I was a terrible virago who ate small boys for breakfast. Whoever this woman was that filled them with terror, she became particularly confusing when she was pregnant. The contradictory myths about women are profoundly in conflict when an advocate fighting her corner is also a symbol of fecundity. There is a tangible difference in atmosphere. Juries are bemused and interested; judges are benign, and worry about being seen to argue with you. I was tempted to make it a permanent state in the interests of my clients.
One very tangible challenge for women lawyers is language. There is far too much pomp and circumstance in British courts, but after discussing courtroom experience with female attorneys in the USA I can appreciate that there are benefits to be gained from some degree of formality. It is a question of getting the balance right. One of the major complaints by American female lawyers is that they are often undermined in court by being referred to as ‘honey’ by their male colleagues, and even by judges – not a problem I have ever encountered in the Old Bailey, where the hardship was much more likely to be about being acknowledged at all, lawyers too often being collectively referred to as ‘gentlemen’. That said, I also know many women who dislike the English practice of addressing all female advocates as ‘Miss’. This infantilising and irritatingly persistent label applies across the board, irrespective of a woman’s age, seniority or family status. I recently had a judge reprimand me in a petulant, headmasterish way in open court. I had seen him do this before to another woman QC in a previous trial. One of the shocking statistics in a recent survey was that 22% of women at the Bar reported bullying. This judge had in fact been quite bullying to all the counsel but he seemed to have a particular problem in knowing how to deal with senior women of his own age. Seniority makes it possible sometimes for a QC to say what younger lawyers can’t. When the jury went out, I told him I found it unacceptable to be spoken to in a condescending way in front of a jury when I was old enough to be the mother of some of them. He was utterly dumb-founded and slouched off the bench very confused, but it affected his demeanour towards all counsel thereafter. If judges want respect they must not abuse their authority; they need to treat others with respect even if they disagree with an argument or find a case distasteful; they have to learn to treat grown women appropriately.
Perhaps with too much accommodation, I learned to live with the assertion that the male pronoun includes the female before realising that, if the law and courtroom analogies are always couched in male pronouns, it is more difficult for juries to see women embraced by their application. Even the relatively recent Sexual Offences Act 2003 uses the pronoun ‘he’ throughout when referring to the complainant in rape when it is usually women who are the victims. It makes no sense to the listener.
Language often perpetuates hidden values, and a conscious effort has to be made to make professional language include women. Studies have shown that when women read job advertisements which use the male pronoun they do not see themselves as applicants. A young student barrister recently told me of how, in a mock trial competition, she had unthinkingly referred to the female judge throughout as ‘M’Lud’. She completed her submissions and sat down, whereupon she was mortified to be informed of her mistake. She later explained that she had simply become accustomed to using the male pronoun in her advocacy exercises, all of which had taken place before male judges, and where the tutors spoke all the time of M’Lud.
The United States, Canada and Australia led the way in ensuring that new legislation was drafted in inclusive language, while also committing to updating and revising existing legislation. By a written ministerial statement issued by the then Justice Secretary, Jack Straw, in 2007, the UK government finally accepted that use of the male pronoun to refer to both men and women risked reinforcing historic gender stereotypes, and announced its commitment to using gender-neutral legislative language as far as possible. One problem about using he/she in domestic violence or rape is that it gives the impression that the offences are just as often committed by women as men when the opposite is true and the reality is therefore disguised. The good news is that our judges are coming to accept the symbolic effect of language. There are encouraging reports of enlightened male judges asking counsel to refer to a predominantly female appellate bench as ‘Your Ladyships’.
In the scramble up the professional ladder, becoming a Queen’s Counsel is an important milestone. A successful barrister will consider applying after about 20 years, but the transition is not automatic and only a small proportion of practising barristers ‘take silk’, as donning the new robe is called. The procedure, like everything in the law, was historically wrapped in secrecy and involved applying to the Lord Chancellor to be considered by him for appointment. Soundings were taken from the judges to assess your standing – and the sound might be a raspberry if you were a rocker of boats or a person not fitting the mould. No reasons were given for refusal; some barristers waited years before being appointed.
Thanks to reforms introduced in 2004, the process by which today’s leading lights are identified is much more transparent, and applicants are provided with stage-by-stage guidance on the selection process. Just as sunlight is said to be the best of disinfectants, this new transparency has trained a spotlight upon the dark crevices in which secretive and therefore questionable value judgements previously operated. Yet as I have already shown, the number of women who make it through this selection process is still depressingly low. More must be done to encourage women to actually apply to take silk; female barristers commonly cite lack of confidence as a key reason for not applying. Applicants both male and female can still be very secretive about whether they have applied, considering a refusal a vote of no confidence. I was open about being refused on my first application, and spoke about it when asked on Woman’s Hour in 1990 because I believed, and still do, that furtiveness feeds unacceptable practices and secrecy is far too rife in the law. Perhaps the powers that be feared I would go on to make an annual announcement over the airwaves about being turned down, so they relented in 1991.
Having more women on the top rung of the practitioners’ ladder is as significant for women as increasing the number of female judges. Lawyers in silk take on the most demanding and important cases, many of which have real social reverberations.
In the studies of Dr R. M. Kanter, reported in the Harvard Women’s Law Journal, whenever people of any social type are proportionally scarce (i.e. less than 20% of the total), the dynamics of tokenism are set in motion. Token appointees are more visible and worry about being seen to fail. They are also faced with the choice of accepting comparative isolation or becoming a member of the dominant group at the price of denying their own identity and accepting a definition of themselves as ‘exceptional’. The flattery of being labelled in that way can be quite intoxicating for women – the ‘queen bee’ syndrome – but it also creates a pressure which means that, while in that role, she is not able to fight for her rights as a woman or to stand up for her sex. Instead, there is an incentive for her to turn her back on other women, either literally or figuratively, in order to protect her place.
Women who have made it insist their achievements were gained on merit, a questionable value. More and more women understandably ask whether their skills are undervalued in a system where ‘merit’ is defined by men. One of the truisms hauled out of the fire in discussions about suitability for the rank of QC or for the bench is whether someone has ‘authority’, a stamp which usually involves a stern demeanour and a very loud voice. Does someone with a strong Geordie accent lack authority? Or someone with a tiny stature? Another murky criterion is ‘decisiveness’. Does that mean bold, quick decision-making or quiet reflection? Is too much reliance placed on skills of oratory? Is advocacy really necessary for the bench? To diversify the bench, experienced solicitors are now being encouraged to apply but then they find that the criteria laid down by judges who were former barristers is used to exclude them.
In 2000 a Commission for Judicial Appointments was created whose job was to audit selection procedures and act as an ombudsman for the judicial and silk appointments process but not to make appointments. The commission, chaired by Sir Colin Campbell, found that the criteria for making silk appointments was so unsystematic as to be subjective and that some consultees’ comments appeared to be influenced by a perception of a ‘silk mould’, which meant that ‘successful applicants had to conform to expectations as to appearance, dress, educational or social background and other irrelevant factors’. These consultees were all judges and grandees at the Bar who like some self-perpetuating oligarchy were clearly only endorsing people like themselves. It was a form of cloning. Ninety-seven per cent of those consulted about suitability were male, white and from a narrow social group. A small number of barristers’ chambers had a stranglehold on influence: effectively seen as silk and judge incubators. The result of belonging to those chambers is that the judges and practitioners regularly mingled and the grooming for appointments started early. Close study shows that a hard core of chambers monopolised the appointment process and their idea of what constitutes excellence was immutable. The number of women was low, and black faces rare.
In his first annual report in 2002, Sir Colin showed the system to be a real scandal, with unsupported and sometimes unattributable tittle-tattle and comment recorded against people to their detriment: ‘Too primly spinsterish, though her other qualities are self-evident.’ ‘She’s off-puttingly headmistressy.’ ‘She does not always dress appropriately.’ ‘Down and out scruffy.’ The eight commissioners, who had wide experience in industry, academia and the Civil Service, ‘had not in twenty years of experience come across comments like them’. As can be imagined, the disclosures did nothing to dispel concern about the whole process of taking ‘soundings’ as a method for advancing careers. In other professions people applied for jobs and produced references.
Significant legislative change was brought about by the Constitutional Reform Act 2005, which required the establishment of an independent Judicial Appointments Commission (JAC). Set up in 2006, the JAC is composed of lay and judicial members and has responsibility for appointing judges at all levels save to the Supreme Court, for which ad hoc selection committees are convened. It uses a mix of paper and interview assessments to select candidates to be recommended for appointment. If the Lord Chancellor or the relevant senior judge declines to follow the JAC’s recommendation, they must give reasons. While the JAC has a statutory duty to have regard to the need to encourage diversity in the judiciary, it is obliged to select judges ‘solely on merit’. Where two applicants are ranked as being of equal merit, a ‘tie-break’ provision can be applied, which entitles the JAC to choose the candidate who will increase judicial diversity.
Prior to its creation, Sir Colin Campbell expressed serious concerns that the JAC was structurally flawed, and that it risked perpetuating the old problems. As Sir Colin pointed out: ‘Some people are worried that the new commission might just be a shell in which traditional practices might continue.’
Sadly, he has been proved right. As we have seen, the rate of diversification of the judiciary, particularly at senior levels, has remained woefully slow. When the suggestion was made that well-qualified women might be fast-tracked, Lord Sumption baulked at the idea but commented that it may well take 50 years for gender parity to be fully achieved within the judiciary. At the current pace of change, this is a significant underestimate.
I strongly believe that this slow progress is in large part due to the old chestnut that people must only be appointed on merit. Like other institutions, the law uses the meritocracy argument to deflect challenges about how it makes its appointments. Merit is a notion which on its face is unobjectionable. It is presented as another of those neutral concepts, an apolitical criterion of personal worth. Yet the concept of merit is not self-defining, and nor is it inherently objective. Rather, it is a question of who defines excellence. No one can help relying on their own experiences, values and preconceptions when assessing the merit of others. The risk is that the supposedly neutral criterion of merit becomes a vehicle by which the norms of the dominant group are entrenched. I refuse to accept that there are fewer women with sufficient merit to fill the top jobs.
So what can be done? Many talented and dedicated lawyers and policymakers, both male and female, myself included, have refused to throw our hands up in despair. A 2014 Labour Party report by two QCs, Geoffrey Bindman and Karon Monaghan, points out that the JAC’s conceptions of merit do not embrace the importance of diversity for the judiciary as a whole. They suggest that the value of a candidate to the creation of a diverse judiciary should itself be regarded as an element of merit. Another of their suggestions is the introduction of a quota system to ensure proportionate representation of women and minorities within the judicial system. The idea of judicial quotas is predictably unpopular. Lord Sumption was reported in the Evening Standard as urging patience and cautioning against the transformation of the judicial system overnight. Apparently, His Lordship was worried that the men would feel as though the cards were stacked against them.
I am in favour of quotas because I think that otherwise we will wait forever for real change. I am particularly amused by the story that female or BAME judges selected to fulfil a quota will be regarded as less able than their colleagues and they will feel they got there by some unfair mechanism. Unfair! What is unfair is what has been going on for millennia. How able are the current incumbents? I get depressed when I hear women say they do not want to be appointed on anything but merit, as though some miraculously just system appointed the men currently in office. I know that quotas will not immediately receive a welcome, but we do need immediate change. A recent report by JUSTICE, a law reform and human rights organisation of which I am president, offers an alternative, less intrusive way of achieving gender parity in the judiciary. The authors argue for ‘targets with teeth’; manageable diversity goals aimed at ensuring that a publicly stated proportion of judicial appointments are women, or drawn from other under-represented groups, with any failure to comply requiring an explanation by the relevant appointments body. JUSTICE argues that each court should have an ‘appointable pool’ of candidates who are willing and qualified to serve as, for example, High Court judges. Judges would then be drawn from the pool as and when vacancies arise, with women, ethnic minority or specialist candidates being given priority at least in the short term. These are innovative ideas propounded by people who are taking the lack of representation in the judiciary very seriously indeed.
When Baroness Hale gave the Independent and Bar Law Reform Lecture in London in November 2004, she quoted Chief Justice Beverley McLachlan of the Supreme Court of Canada who gave a rationale for women ‘as judges’.
The most important reason why I believe we need women on our benches is because we need the perspectives that women can bring to judging. This is because jurists are human beings, and, as such, are informed and influenced by their backgrounds, community and experiences. For cultural, biological, social and historic reasons women do have different experiences than men.
With increased numbers of women at every level in the law it would function differently; men would ease up on many of their attitudes, and myths would be shattered. If judges during their luncheon recess were sitting round a table talking about their cases with many more women and being ribbed for their arcane views, they might start taking stock of a different kind of experience. Isolated women cannot challenge that culture.
It is essential for people to see women in positions of power. We have to stop sending out the message that only a special breed of person can get to be a lawyer or a judge, and that they all wear dark suits and talk with marbles in their mouths. We can only hope to gain the public’s confidence if that kind of remoteness from the real world is addressed.
The smell of the gentleman’s club permeates every crevice of the Inns of Court. It is hard to untangle the web of very fine biases which are insinuated, like that smell, into the system. As Mary Robinson, the former president of Ireland and an eminent human rights lawyer, has said:
Every society maintains an invisible life where attitudes and assumptions are formed. Every society is hostage to this unseen place, where fear conquers reason and old attitudes remain entrenched. It is here that the chance phrases and small asides are made which say so little and reveal so much.
If we are to go forward we need to look at attitudes and the language which expresses attitude … If we are to strike a balance, if we are to readjust participation and enrich our society with dialogue, we have to revise this way of thinking.