Sunday, 29 June 2014

'Just a name on the door' - Why Justice does not wear a dress.



1, 2, 3, 3 and 3.  If you know what those numbers mean you know your Law or, more specifically, your Courts:  you are also probably a feminist.  These are the numbers of women in the Supreme Courts of the United Kingdom, New Zealand, the United States, Australia and Canada.  In overall number terms that is: UK 1 of 12; NZ 2 of 6; USA 3 of 9; AUS 3 of 7; and CAN 3 of 9.  Lest the message is unclear every other of these Common Law jurisdictions has at least 30% of its final court of appeal made up of women.  Australia comes closest to parity at 43% and Canada and New Zealand both have women as their Chief Justices.


We have one.  Or 8.3%.  Or one woman and an entire football team of men.  I don’t know how much Baroness Brenda Hale knows about cricket but it’s almost certainly a hell of a lot more than she knew before she became a judge.  But before you feel any awkwardness about this don’t worry she’s the Deputy President.  So that’s alright then…


If you are a young male barrister, which I am (just), you will have come to the Bar surrounded by women having left a university surrounded by women.  I did pupillage at QEB Hollis Whiteman; of the tenant barristers there of my Call (2004) and below 7 are women and 10 men.  I then spent a year at 3 Raymond Buildings 7 are women and 4 men.  In my chambers at 9 Bedford Row 11 are women and 8 are men.


The uninformed might ask what the problem is.  Just give it time and that truly grim statistic will be consigned to history.  But time is exactly what we don’t have.  If you asked the woman (or man) in the street to think of a judge, any judge, £1,000 says they will think of an old white man.  That is because it is not just in the Supreme Court where gender parity seems as remote as Narnia.  7 of 38 Lords Justice of Appeal are women or 18%.  None of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division, the Chancellor of the High Court, the Recorder of London or the Common Serjeant of London are women OR EVER HAVE BEEN.  With the one shining exception of Dame Elizabeth Butler-Sloss President of the Family Division (1999-2005) because, of course, women are good at families.  No Lady Chancellors, no Lady Chief Justices and no Mistresses of the Rolls since 1234.  Haven’t we come far?


Only last December was it announced that Alison Russell QC’s official designation as a High Court judge sitting in the Family Division would be Ms Justice Russell.  Otherwise she would have been known as Miss Justice.  Alright perhaps for a Hip Hop singer or a lesser Marvel comic super heroine but hardly commensurate with the dignity of the office of a senior judge.  However this endless litany of dismal statistics is not constructive.


A short word on why time alone will not be the great healer of centuries of gender injustice.  The Bar Standards Board has just published ‘Barristers’ Working Lives – A second biennial survey of the Bar – 2013’. (https://www.barstandardsboard.org.uk/media/1385164/barristers__working_lives_30.01.12_web.pdf )


The relevant extracts below deal with gender, retention and childcare responsibilities.  They also explain why if you look at the list of barristers’ names outside a chambers and run your finger about 1/3 up the list the chances are that any women you find will be on maternity leave, secondment, flexible working or, just that, a name on the door.  Many of them will go and never come back.


2.1.1 Gender, age and time since Call


Nearly two thirds of all barristers are men, with


women representing 37 per cent of the profession.


The age distribution of the Bar finds nine per cent


of all barristers aged under 30; 30 per cent are aged 30-


39; 31 per cent 40-49; 20 per cent 50-59; and nine per


cent are aged 60 plus. In terms of time since Call, seven


per cent of barristers are ‘The Young Bar (new entrants)’


(1-3 years’ Call); 13 per cent are ‘The Young Bar’ (4-7


years); 19 per cent are ‘Middle Juniors’ (8-12 years into


their careers); 29 per cent are ‘Senior Juniors’ (13-21


years); and 33 per cent are ‘Seniors’, 22 years or more


since they were called.


As might be expected, there is some variation in the


proportion of women between different age groups and


by year of Call. For example, among those aged under


30 women represent more than half of all barristers


(57%); reducing to 44 per cent among those aged


30-39; 35 per cent of those in their 40s; 30 per cent


among those in their 50s; and just 15 per cent of


barristers in their 60s are women. Similarly, there is


correlation between gender and time since Call,


grouped as above.


The proportion of women in the profession reduces


after approximately 13 years’ Call. There is little


difference in the numbers of women at the Bar 1-3


years, 4-7 years and 8-12 years’ Call at around 47 per


cent of all barristers at these points in their careers.


However, among those 13-21 years into their careers


the proportion of women reduces to 39 per cent and to


23 per cent among those 22 years or more into their


careers. Taking these figures together suggests that the


number of women working at the Bar is likely to result


both from generational changes and increases in the


numbers of women entering the profession; and as a


result of more women than men leaving the profession,


perhaps to take career breaks, with around 13 years


into their careers being the point at which it would


seem more women start to leave the Bar. This issue is


explored in a little more detail later in the report.


The average age of the Bar is 43.6 but among men the


average is 45.4 and women 40.5. Similarly on average


women have been qualified slightly less time at 14.6


years compared to 19.6 years among men (17.8 years


across the whole Bar).


 


2.1.3 Marital status and caring responsibilities


Two thirds of the Bar are married (64%) or in a civil


partnership (2%), a further eight per cent are divorced,


separated or widowed and 26 per cent are single.


There is a strong relationship between age group


and gender in the likelihood of barristers being single,


married or divorced/separated/widowed. Firstly, across


the whole Bar, women are twice as likely as men to be


single (38% compared to 19% of men). As one might


expect, age is also a key variable. Three quarters


(77%) of barristers in their 20s are single compared


to 35 per cent of those in their 30s; 20 per cent in


their 40s; 11 per cent in their 50s; and three per cent


of those in their 60s. However, although there is little


difference between men and women in their 20s,


among those in their 30s 42 per cent of women are


single compared to 30 per cent of men; 28 per cent in


their 40s compared to 15 per cent of men; and 18 per


cent in their 50s compared to eight per cent of men;


and 11 per cent in the 60s compared to just one per


cent of men (Figure 2.2).


It is also apparent that female barristers are more likely


to be divorced than male barristers. For example, in


their 50s and 60s 17 per cent of women are divorced


compared to just seven per cent of men.


It is also noticeable that barristers from BME


backgrounds are more likely to be single (34%


compared to 25% of white barristers) while those with


no religious affiliation are also more likely to be single


(32%). However, this is primarily a function of the fact


that more barristers from BME backgrounds are in the


younger age groups and a higher proportion of BME


barristers are women; this also explains much of the


difference in marital status by religious affiliation.


Just under a half of all barristers have dependent


children (48%). Fewer women have dependent


children (41% compared to 52% of male barristers).


By age group, just three per cent of respondents in


their 20s have dependent children and this rises to


44 per cent of those in their 30s and 68 per cent in


their 40s, then declines slightly to 55 per cent in their


50s and 18 per cent in their 60s. Barristers from BME


backgrounds are more likely to have dependent children


(54% compared to 47% of white barristers).


Respondents were also asked to indicate whether they


had ever taken any maternity/paternity leave lasting three


months or more. Overall, 13 per cent of all barristers


have had this amount of maternity/paternity leave but


again gender differences are significant (33% of women


and 2% of men). Among barristers who have dependent


children, three quarters (77%) of women and three per


cent of men have had this level of maternity/paternity


leave. Take up of longer term paternity leave remains low


at the Bar, and there has been no discernible increase in


take up among younger age groups.


On the other hand, there would seem to have been an


increase in the proportion of women at the Bar who


have taken extended maternity leave. Among women


aged under 40, 88 per cent have taken maternity leave


of three months or more at some stage in their careers,


compared to 78 per cent of women aged 40-49 and


56 per cent of women aged 50 plus. However, it is


likely that this is as much a retention issue as it is a


result of increase in take up, with more women who take


extended maternity leave subsequently leaving


the profession.


Where respondents have indicated that they have


childcare responsibilities, in 38 per cent of cases they


have children under the age of five; 39 per cent aged


5-10; 36 per cent 11-16; and in 25 per cent of cases their


children are aged 17 plus.


Respondents who have dependent children were also


asked to indicate who takes the main responsibility of


providing/organising child care. Two thirds (66%) of all


female barristers take the main responsibility for this, in


23 per cent of cases it is equally shared between them


and a partner, and in 11 per cent of cases someone else


takes the main responsibility for providing/organising


childcare. However, among men just four per cent take


the main responsibility for childcare; in 26 per cent of


cases it is equally shared; but for 70 per cent of men


someone else organises their childcare (Figure 2.3).


Among barristers aged 50 plus, more responded


indicating that childcare is equally shared (35%),


however this is mainly due to a higher proportion of


this group’s children being aged 17 plus, where there is


less requirement for a parent to be away from work to


arrange or deliver childcare. There is little difference by


ethnicity in the division of childcare responsibilities.


Just one in 11 (9%) barristers has a regular caring


responsibility for an elderly relative or other adult. Older


barristers are more likely to have these responsibilities


(15% of those aged 50 plus compared to 9% of those


in their 40s and 4% of those aged under 40). Again,


more women (11%) than men (7%) have adult caring


responsibilities, but there is little difference by ethnicity.


As well as looking at maternity/paternity leave, the


survey also asked barristers to indicate whether or not


they had taken any other form of long-term leave lasting


three months or more (e.g. long-term sick leave, career


break, study leave or leave to care for an adult relative).


Across the whole Bar, 13 per cent had taken a long-term


career break rising to 23 per cent among those who


indicated they have adult caring responsibilities and 39


per cent of those who said they have a health problem


or disability that limits their day-to-day activities.


It is also worth noting that a higher proportion (21%)


of barristers who said they were divorced, separated,


or widowed, had taken this form of career break. Also


one in five barristers (19%) who said they were mainly


responsible for childcare said they had taken a career


break (in addition to any maternity leave taken).


There was also some correlation with age, but this was more


a function of the other life experiences mentioned


previously, than any link to age per se.


What is to be done? I shall take the liberty of addressing the men of my generation who have a choice (because, of course, men have always had a choice).  You can choose to be part of the solution, an agent of progress and enlightenment or you can stand idly by, a tacit guarantor of the tedious and necrotic status quo.  Platitude and benevolent sentiment are the shields behind which men ensure nothing ever changes: ‘Good old Brenda on her soapbox again!’  I obtained a fascinating insight in April at the Junior Lawyers’ Division Conference.  I attended a session entitled: ‘Women in the law: breaking career barriers and mentoring’.  There were about 50 women in the audience and all the speakers were women one of whom said: ‘Right here is the problem with these sessions: no men come to them.’ The woman to my right was good enough to flag up the interloper in their midst and I did remark that I thought the beard might have been a giveaway but the sentiment was spot on.


So in no particular order:
  1. Children – if you have them care for them at least as much if not more than their mother.  And caring does not = cash.  If you have daughters imagine the workplace you’d want them in and make it happen.
  2. Paternity leave – take it, in full, and enjoin all fathers around you to do the same.
  3. Clerks – make sure they do everything in their power to facilitate career breaks and resumption of practice.
  4. Committees – encourage women on to them and especially to lead them.
  5. Silk – encourage and help the women around you to apply.
  6. Judicial office – encourage and help the women around you to apply.
  7. The Inns – if you’re a Bencher put women forward for election (and if you’re a Bencher of my Call well done!)
  8. Practices – in private cases there is no justification for women to be paid a lower fee than a man. Ever.  Solicitors don’t instruct women in sex cases every case.
  9. Support – give it fulsomely and unconditionally.  The Bar can be a frightening and lonely place; if you support the women (and men) around you they will support you back.


And, with a great deal more circumspection, some advice for the women:
  1. Keep going – do everything in your power to stay at the Bar and demand that the men in your life (clerks, heads of chambers, judges, solicitors, fathers and husbands) help make that happen.
  2. Outmanning – don’t outmen the men, achieving this almost impossible task will destroy you as a woman and sends the message that the system can’t be changed only beaten at enormous personal cost.
  3. Step forward – be assailed by self-doubt, we all are, but don’t be disabled by it.  If you don’t speak your voice won’t be heard.  If you don’t apply you can’t be appointed.  Your experience, your learning and your wisdom is as valuable as any man’s.  Often more so.
  4. Don’t scorn other women – join the Association of Women Barristers but remember that women talking to women is just that and goes unheard by men.
  5. Sons – get them with programme young and watch them like hawks.  Well thinking and well meaning young graduates will be quickly turned by the world of men and implicitly adopt its practices and expectations before you know it.
  6. Lead by example – don’t expect of others what you are not prepared to do yourself.  Some of your forebears died for their principles.  Death is no longer the price of progress but courage and self-sacrifice still are.
  7. You are not alone – always remember that your allies and supporters far outnumber your enemies.  Know who they are and do not hesitate to ask for and expect their support.


If you think we can’t go on like this you are right and you must do something about it.






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