Opinion: Looking for a legally level playing field
Next weekend I’m going to a reunion to celebrate, if that’s the right word, 50 years since going to Dundee to study law. There were four women in the class. Some years later I joined the Faculty. Four women there as well. The law clearly was the preserve of white men with the odd token female and no-one from a minority ethnic background.
Now it’s very different. More than half the law graduates are women and barriers of class and colour have disappeared. Problem solved.
Unfortunately not. While there are more women now at the Bar and there is more diversity generally, there are still fewer women than men despite the fact that for many years the majority of law graduates have been female. This year, of the seven new advocates, six are men.
There are fewer women at the bar now than ten years ago which suggests more women than men leave practice. Perhaps most concerning is the fact that there is a very significant disparity in average earnings between male and female advocates at all levels of seniority.
Some of the reasons for all this will be no-one’s fault or responsibility, but the feeling remains that, as a body, we should be doing more to improve the situation. To that end, the Faculty’s Equality and Diversity Committee has been tackling these issues for some time and made a number of innovative proposals to help create, as far as possible, a more level playing field.
In particular, there is a need to openly acknowledge and recognise as a matter of principle that from time to time members may want to work more flexibly or at a reduced level or take a career break so they can manage childcare, family or other responsibilities while continuing their practice.
It is, after all, in Faculty’s own long term interest to retain all its members, including those who work flexibly or at a reduced level and in whose practices much time and money has been invested.
Of course, these fine sentiments will need translated into detailed policies dealing with a host of practical issues, both general and financial, but the general purpose is clear. The perception that a career as an advocate is only open to a few and that those, often women but not always, who need more flexible working arrangements must go elsewhere should be dispelled.
And other perceived problems can be tackled at the same time. For example, there is a perception that when counsel are being instructed there is at times an unfair bias, albeit unconscious, and that more often than not favours white males. Does that exist? If so, how common is it? Hard to say as many factors affect who is instructed in any case and the bottom line must always be that clients and solicitors are free to instruct as they please. I believe, however, that to some extent it does exist and the least we can do is put policies and practices in place to guard against that danger and ensure that at our own end such unfairness does not happen.
There is no single magical solution but acknowledging and dealing with this difficult and at times controversial issue is better than brushing it under the carpet.
That is why I intend to make sure that, like other bars elsewhere, the Faculty will have a clear, transparent equitable briefing policy and so, too, will each individual stable. That will include having a nominated clerk who will be responsible for monitoring and assessing the situation within their own stable. That at the very least will make everyone alive to this issue.
But counsel are, by definition, most often chosen and instructed by others including solicitors and other professional bodies. Some have a clear policy on this issue, others do not. All I can do is urge those who instruct counsel to also be aware of this danger and deal appropriately with it.
And there is much more that can and will be done. A mentoring scheme that provides real advice and assistance when that is needed, as it often is. Clear directions to deal with any bullying or harassment.
All of this is not just more policies for the sake of it. We believe we are a centre of excellence. We want to attract the brightest and the best. If there are barriers, real or imagined, that discourages some from a career at the bar, we will not ignore them but do all we can to remove them.
Gordon Jackson QC, is Dean of the Faculty of Advocates.