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Articles | Thu 15th Jul, 2021
Ensuring the sanctions guidance is fit for purpose is just one of the many challenges that confront women at the Bar, writes Francesca O’Neill
In January 2021, at a virtual meeting of the Bar Council, I raised an issue which has been causing female barristers considerable disquiet for a long time: for years, the Bar Standards Board’s quasi-judicial arm, the Bar Tribunals & Adjudication Service (BTAS) has been handing out punishments to male barristers convicted of violent or sex crimes against women which are derisory.
Recent examples include:
Following the meeting, I tweeted the following:
‘Men who have slapped female pupils on the bottom for their own sexual gratification, hit women with hockey sticks breaking their jaws, headbutted women leaving them covered in blood… they have avoided disbarment. They have no place in our profession.’*
(*It turned out that the receptionist was, in fact, a man.)
The impact of that tweet was immediate. I received hundreds of messages from other women at the Bar, complaining that the issue of sexual harassment and violence was simply not being dealt with properly by our regulator. Our profession is adversarial in nature: women at the Bar are used to fighting for our clients. We should not also have to fight for our regulator to take violence and harassment more seriously. Men who harass women, beat women, make repeated unwanted sexual advances to more junior women – they should not then have the opportunity to get close to women in robing rooms or face them in court.
It is not just a problem for female barristers in practice. Many of the messages I received were from non-lawyers, students and members of the public. They could not understand how a profession which purports to represent the nation, and widely perceived as ‘elite’, could tolerate the examples detailed above. How could men with criminal convictions go on to defend or prosecute in the courts without further consequence? I became increasingly concerned that public trust in the profession would be affected if something was not done to raise these concerns.
To that end, I raised it with the other members of my cohort on the recently inaugurated Bar Council Leadership Programme. The programme has lofty ambitions of creating supportive networks for junior barristers who have an interest in future leadership roles at the Bar. Together, we sent a letter to Baroness Tessa Blackstone, Chair of the BSB, outlining the issue by giving those shocking examples of recent BTAS decisions and requesting details of the review promised in reply to my initial question at Bar Council.
The reply to my letter did do that, promising a review of the sanctions guidance currently in place and consultation with stakeholders to improve it. Doubtless, the decision that such a review was warranted was taken long before that Bar Council meeting in January – but what remains shocking to me is that it took so long for the seriousness of the problem to be realised and that it will now take most of 2021 before new guidance is issued. In the meantime, adjudication tribunals are still hamstrung by sanctions guidance that is manifestly not fit for purpose. In my view, far more urgent changes are required.
The first BTAS Sanctions Guidance Consultation (2021) closes on 14 June and I would urge anyone reading this article and with an interest in ensuring that the new guidance is fit for purpose contributes to it. The redrafted guidance will then be put out in a second consultation.
For all that our profession is highly individualistic, it is in everyone’s interest that the trust the public places in it is not eroded and that those guilty of serious crime face the professional consequences of those actions.
In a broader context, facing down the particular challenges that confront women at the Bar simply must be given a higher priority. Of course, I say that with the benefit of self-interest – I have two very young children and am right at the point at which many women leave the Bar; it being generally inhospitable to working mothers. To those who claim that things have massively improved for women barristers in recent years, I agree that they have. But attracting brilliant women applicants to the profession is not the problem – it is keeping them that remains the issue. Shockingly, only 32% of the Bar post-15 years’ call are women: retention continues to be a massive problem with the exodus of highly qualified women from the profession showing little sign of slowing down. It is simply not acceptable for a profession to remain so solidly male at the more senior level in the 2020s.
Career progression for women is essential. This is happening, but far too slowly. While in 2016 only 13% of QCs were women, by 2019 that had risen to 16.2%: there is clearly a long way to go. It is not only in appointments to silk that women fall behind. I was recently appointed to the Attorney-General’s C Panel of Counsel and so accept instructions from the government. It is one of my proudest professional achievements. In 2014, there were 55 female C panellists and 59 male C panellists. In 2020, there were 87 female and 95 male C panellists… but on the B panel, the split remained highly weighted in favour of men (85/50). In her incisive article for this magazine in the January 2021 issue, Gender at the Bar and fair access to work (4), HHJ Emma Nott asked: ‘It is unclear why the female C Panellists of 2014 do not seem to have become the A and B Panellists of 2020.’ The answer, as ever, lies in the knottier problems of retention, fair allocation of work and income.
The statistics are appalling. In 2019, women practising in commercial and financial services law earn 59% less as an average than their male counterparts. In personal injury work, the figure is 50%, in crime and planning the numbers are 39% and 42%. The Bar Council Leadership Programme has this, and other issues of inequality and discrimination, firmly in its sights. Indeed, one of the projects with which I am involved seeks to provide chambers and barristers more generally with a pack of resources to assist in ensuring that those with protected characteristics receive the support that they need.
This is an important first step. There is much more that needs to be done to ensure that women at the Bar are given a fair opportunity to succeed. The disparity in income evidenced by HHJ Nott was shocking, yet there was barely an audible outcry from the Bar. It may be that BTAS sanctions guidance grabs the headlines, but the real impediments to women’s advancement at the Bar remain quietly known but unaddressed.
This article was first published by Counsel magazine, June 2021