Foundations for a fairer future

At Foundations for a Fairer Future – an ICAW event at Middle Temple last year – Mrs Justice McGowan, Treasurer of Middle Temple and former Chair of the Bar said now was the time to ‘move beyond the stage of kind words and good intentions’ to ‘achieving some practical movement’ for real progress to happen.

The event focused on developing the careers of female barristers through fairer work distribution and reducing the gender income gap.

Speakers were drawn from different professional backgrounds and experience yet several common themes emerged. The panel ranged from barristers in chambers, those instructing barristers from government/private sectors, to those managing barristers’ practices in chambers, and the equality and diversity consultant at the Bar Council.

In addition to equality of opportunity being ‘the right thing to do’, all agreed with David Stone of Allen & Overy on the business benefits of diversity:

• Diversity, equality and inclusion attracts and keeps the best talent.
• Diverse teams make better decisions and diverse companies are more successful.
• Increasingly, clients demand demonstrable diversity in their legal representation and a failure to put forward a diverse team will result in lost work.

The panel discussion was a rich seam to mine for guidance, feasible steps and practical tools (we summarise these below) and will serve as a benchmark for the development of diversity at the Bar and the effectiveness of measures to bring about change.

1. Interrogate the data

All speakers advocated data collection and analysis. Data provides the evidence of what is happening rather than relying on anecdote and good intentions. Data can identify outliers and anomalies and develop comparative groups, the latter being particularly beneficial to help chambers ascertain whether an individual is thriving, falling behind or on a par with their comparative group. Data can also detect whether people returning from parental leave are being given lower value work and the diversity and effectiveness of chambers’ pipeline for silk or career progression.

Rachel Krys, the Bar Council’s equality and diversity consultant, counselled against tackling everything at once: try to identify patterns in one group eg juniors under seven years’ practice – are some being led, or being led in stretching cases, more regularly? Or women returners – compare them against their comparative group at call level. The Bar Council publishes suggested groups in its Monitoring Work Distribution Toolkits which chambers can use to analyse data.

2. Strengthen individual practice management

Use the information gathered from the data to better inform a barrister’s individual practice management. Chambers can support barristers to understand their market, the practice that they have and where they might focus instead or how to broaden and develop a more lucrative practice.

Use an agenda template for practice reviews so that no important points are overlooked erroneously eg practice aspirations, practice areas and expansion opportunities and ambitions, career path to silk or judicial appointment (which should always be considered well in advance of any application).

3. Encourage diversity – chambers and those instructing them

Again, data analysis is key. The Government Legal Department seeks to monitor levels of spend on individual panel counsel regularly. This detects low spend, raising questions of fairness and equal treatment as between those instructed. In private practice, Allen & Overy seeks to collaborate with chambers it regularly uses to increase the diversity of those instructed. Recommendations included:

• encouraging solicitors/clients to ask expressly for diverse shortlists – if the client wants a particular KC, try to ensure that the junior contributes to overall diversity of the legal team;
• helping those instructing chambers to get to know a broader field of advocates and discouraging the tendency to instruct the same barristers repeatedly eg barristers unknown to solicitors can present/attend talks at the firm, helping to widen the pool of advocates;
• holding networking events eg for pupils and barristers up to three years’ call and trainees and solicitors up to three years’ PQE – starting early to benefit from opportunities to meet, swap details, connect on LinkedIn and build a network that will stay with them throughout their career.
• being honest if a barrister works flexibly – if the (professional) client knows about it, this can often be accommodated. On the other hand, if chambers haven’t told them, the client may list a hearing or set a deadline for work at a time the barrister will be unable to deliver;
• actively asking chambers about barristers returning from periods of longer leave (for whatever reason) to help overcome inevitable difficulties with rebuilding a practice;
• using ungendered language in directories – law firms can publish internal guidelines to encourage gender neutral comments on barristers’ skills and this is something that chambers can also help to achieve.

4. Monitor allocation of work to ensure fairness

• Opportunity monitoring – every work enquiry should be recorded, whether allocated or unallocated, to build a picture that can be analysed by chambers and comparative groups can deploy.
• Opportunity reports – showing work done and receipt figures can aid discussions and practice reviews on existing and desired future clients.
• See Institute of Barristers’ Clerks guidance, such as ‘Implementing and managing fair work allocation’, Scott Baldwin, Counsel October 2022.

5. Support parental leave with best practice

• Chambers’ mindset should be to support parental leave and flexible working.
• Good communication before, during and after a period of leave will lead to better management of the barrister’s return to work. If professional relationships are nurtured during parental leave, they will likely be productive on a return to work.
• While a barrister is on leave, encourage them to continue participating in chambers’ life by attending training, marketing and social events and meetings.

6. Close the income gap

Joanne Kane, former Chair of the Young Barristers’ Committee, suggested:

• encouraging chambers to talk openly about income and to share data and statistics amongst members, so that barristers can measure themselves accurately against their peers;
• setting targets to improve the work of members of chambers and the number of women being put forward for work – monitor that continuously;
• making practice review meetings accessible, normal and regular;
• promoting mentoring;
• giving younger barristers a checklist on how to expand their practice, who to talk to, how to manage finances properly and other necessary skills – the Bar Council’s Insider Guide to Life at the Bar is a good place to start.

ICAW encourages a change of mindset and a sustained effort to close the gender income gap. When women’s earnings match those of their male colleagues, it will be in the economic interests of chambers generally and make for a fairer and better profession for all.

Further information *Income at the Bar – Gender and Ethnicity, Bar Standards Board, February 2022 (based on income declarations from the Authorisation to Practise process).

Monitoring Work Distribution Toolkits Part 1: Sex & Part 2: Race, Bar Council on www.barcouncilethics.co.uk

‘Implementing and managing fair work allocation’, Scott Baldwin, Counsel October 2022.

Fair Allocation of Work: Best Practice Guide, Institute of Barristers’ Clerks.

Insider Guide to Life at the Bar, Bar Council.

The ‘Foundations for a Fairer Future’ panel was chaired by Maggie Semple OBE – KC Appointments Selection Panel; Nkumbe Ekaney KC – Joint Head of Chambers, 1GC Family Law; Rachel Holmes – Chief Executive, Matrix Chambers; Joanne Kane – Former Chair, Young Barristers’ Committee of the Bar Council; Rachel Krys – in charge of the accelerator programme at the Bar Council; Susanna McGibbon – Treasury Solicitor; David Stone – Allen & Overy.