*/
Bullying at the Bar is endemic. We cannot seem to rid ourselves of it. It has been with us for so long that tolerance of bullying is embedded in our culture.* We pass down our learned acceptance of inappropriate behaviours from one generation of barristers to the next: ‘You need to develop a thick skin’, ‘it is not as bad as it used to be’ and ‘that’s just his way’.
We are a profession striving to progress in every aspect of equality, diversity and inclusion but we are unable (or unwilling) to stop belittling, mistreating and humiliating each other.
In fact, the Bar Council’s most recent Barristers’ Working Lives report (September 2021) tells us that inappropriate behaviours are trending upwards. In 2021, 30% of survey respondents reported ‘personal experience’ of bullying, harassment and/or discrimination in the previous two years. That is a significant increase from 21% in 2017 and 13% in 2013. As I write, the profession is being surveyed for Barristers’ Working Lives 2023.
Digging deeper into the 2021 statistics helps us understand the nature of the problem. If you include in-person and ‘online’ incidents, 43% of female respondents had experienced some form of bullying (compared with 17% of male respondents). Almost half of respondents who reported a long-term disability (45%) said they had experienced bullying, harassment and discrimination (compared with 27% of those with no disability).
The results of the Working Lives survey also suggest that barristers from non-White backgrounds are twice as likely to have experienced bullying, harassment and discrimination compared to White barristers (53% of Black respondents; 47% of Asian respondents; 46% of respondents from mixed backgrounds; compared with 26% of White respondents).
Perhaps the most damaging statistic for the Bar in the 2021 report concerns where these inappropriate behaviours emanate from. Of those who had experienced bullying, 48% identified the perpetrator as another barrister and 45% had been subjected to bullying by a judge. We are doing this to ourselves.
We are also doing it to our pupils. More than a third of respondents to the Bar Council’s Pupil Survey in March 2022 had personally experienced bullying or harassment despite having been at the Bar for less than 12 months.
And it goes on. The Bar Council runs an online tool called ‘Talk to Spot’ which allows confidential and anonymous reporting of inappropriate behaviours. The app receives between 10 and 15 reports from barristers every month, including a number of really serious complaints.**
So how do we buck the trend and start to (at least) reduce bullying, harassment and discrimination at the Bar?
Regulation has a part to play. For far too long, our disciplinary institutions failed to recognise the gravity of the problem. In 2021, a series of decisions by Bar Disciplinary Tribunals drew criticism for the leniency of sanctions imposed for sexual harassment and misconduct. A male barrister faced only a reprimand and a fine for grabbing a 22-year-old female pupil and smacking her on the bottom. Another male barrister received a short suspension and a fine for sexually assaulting two women. A third male barrister made national news for being one of the first people convicted for ‘upskirting’ – he was suspended from practice for just six months.***
In response, the Bar Tribunals and Adjudication Service launched a consultation on sanctions for misconduct which resulted in updated guidance in 2022. Under the new rules, Disciplinary Tribunals are given the authority to impose increased penalties for cases of sexual harassment (BTAS Sanctions Guide Version 6). The ‘starting point’ for ‘minor’ sexual harassment is now suspension of up to 24 months (instead of a reprimand and a fine) and the upper limit for ‘significant’ cases is disbarment.
The BTAS has explicitly said that these sanctions are to be imposed for deterrent effect, which is a welcome development, and certainly provides a more effective disincentive against sexual misconduct than the previous sanctions guidance. However, there is broader range of problematic behaviours that still need to be addressed.
The heads of all the legal services regulators, including the Director General of the BSB, recently produced a joint statement, Tackling Counter-Inclusive Misconduct Through Disciplinary Processes which, importantly, recognises that bullying and harassment are barriers to a successful legal career. However, the statement also makes the significant concession that ‘regulation is not the whole answer, or even most of the answer.’
While that may be true, there is still more the BSB could do to address bullying at the Bar. For example, one of the Bar Council’s key objectives in its strategy to tackle bullying and harassment is to persuade the BSB to make explicit reference to ‘bullying’ in the Code of Conduct since, remarkably, that word is nowhere to be found in the current edition.
Our failure, as a profession, to deal with the problem of bullying should be a source of collective shame. We can no longer ignore, excuse or tolerate inappropriate behaviours. We can no longer tell ourselves and our more junior colleagues that things are getting better. We cannot expect our regulator or our disciplinary tribunals to fix this for us. We must try to fix this for ourselves.
The Northern Circuit, where I practise and serve on the Equality, Diversity and Social Mobility Committee, has adopted a proactive approach to equality, diversity and inclusion in recent years. The Circuit Executive has published a comprehensive Race Working Report on promoting racial equality and produced a five-step action plan with the aim of embedding equality and diversity in the ‘culture, mind-set and functions’ of the barristers, chambers and institutions of the Northern Circuit.
An important development in the Northern Circuit’s effort to address bullying and harassment at the Bar has been the addition of ‘inappropriate behaviours’ training to Circuit’s continuing education programme. Specifically, Circuit’s compulsory training sessions for prospective pupil supervisors and new pupils now include talks addressing bullying and harassment. The training for pupils is designed to alert our newest barristers to problems they may face and identify the opportunities for advice and support on Circuit and beyond. The training for supervisors encourages an open discussion with pupils about the problem of bullying at the Bar and aims to provide supervisors with a toolkit for supporting their pupils.
Feedback from both cohorts has demonstrated the importance of introducing the topic of bullying to the training syllabus. Because of our reluctance as a profession to speak frankly about our problem with bullying, many pupils are already worried about raising concerns about inappropriate behaviours for fear of being seen as a ‘troublemaker’. Many pupil supervisors are unsure about what advice to give or what help is available. Dealing with inappropriate behaviour issues head-on is the first step in eliminating the tolerance (and perceived tolerance) of bullying at the Bar.
Bullying is a sufficiently large problem for the Lord Chief Justice to have introduced compulsory training for all salaried judges.
In November 2022, Lord Burnett told the House of Commons Justice Committee that the Judiciary would receive training in avoiding inappropriate behaviours. The LCJ followed that up in January this year with the Statement of Expected Behaviour setting out nine expectations centred around dignity and respect. Further, it encourages action to be taken by witnesses to judicial ‘bullying, harassment or discrimination or other behaviour that falls short of these expectations’.
In March 2023, the Lord Chief Justice told an event organised by the Inns of Court Alliance for Women, Tackling Judicial Bullying, that the published expectations were a ‘powerful statement to the Judiciary and the world that this is a problem we take with the utmost seriousness’.
If the Judiciary is able to reflect on its failings in this area and prescribe an education programme for its membership in order to eradicate bullying, then the Bar should be able to do the same.
The problem, of course, is that as a profession of (largely) self-employed individuals, we are not required to undertake much in the way of ‘compulsory’ training. Perhaps that will change and the BSB will follow the lead of the LCJ in mandating inappropriate behaviours training.
Until then, we at the Bar must take responsibility for educating ourselves. We must use what opportunities there are for compulsory training to shine a light on the problem of bullying (as the Northern Circuit has done for their pupils and pupil supervisors). Our institutions – Circuits, Inns, specialist Bar associations and even individual sets of chambers – should find ways to get bullying on the agenda; to educate their members and require them to engage in preventative strategies.
We must take it on ourselves to dismantle the real and perceived tolerance of bullying at the Bar. We, together, can define our own behaviour expectations, shape an inclusive culture and curb the shameful upwards trend of bullying, harassment and discrimination.
Talk to Spot, the online tool for the Bar to confidentially and anonymously report inappropriate behaviour and concerns, can be accessed here.
To find out more about the Bar Council’s action on bullying and harassment, see its dedicated web pages here.
References
*Bullying, discrimination and harassment at the Bar, a qualitative study by YouGov for the Bar Standards Board, October 2020.
** ‘Barristers’ hotline for bullying and harassment’, Jonathan Ames, The Times (paywall), 1 December 2022:
*** ‘Meaningful sanctions and priority action’, Francesca O’Neill, Counsel June 2021
Chris Gutteridge is a barrister at Exchange Chambers specialising in personal injury and clinical negligence litigation. He is a co-founder of ‘All Rise’ – an initiative to tackle bullying, harassment and discrimination at the Bar.
Bullying at the Bar is endemic. We cannot seem to rid ourselves of it. It has been with us for so long that tolerance of bullying is embedded in our culture.* We pass down our learned acceptance of inappropriate behaviours from one generation of barristers to the next: ‘You need to develop a thick skin’, ‘it is not as bad as it used to be’ and ‘that’s just his way’.
We are a profession striving to progress in every aspect of equality, diversity and inclusion but we are unable (or unwilling) to stop belittling, mistreating and humiliating each other.
In fact, the Bar Council’s most recent Barristers’ Working Lives report (September 2021) tells us that inappropriate behaviours are trending upwards. In 2021, 30% of survey respondents reported ‘personal experience’ of bullying, harassment and/or discrimination in the previous two years. That is a significant increase from 21% in 2017 and 13% in 2013. As I write, the profession is being surveyed for Barristers’ Working Lives 2023.
Digging deeper into the 2021 statistics helps us understand the nature of the problem. If you include in-person and ‘online’ incidents, 43% of female respondents had experienced some form of bullying (compared with 17% of male respondents). Almost half of respondents who reported a long-term disability (45%) said they had experienced bullying, harassment and discrimination (compared with 27% of those with no disability).
The results of the Working Lives survey also suggest that barristers from non-White backgrounds are twice as likely to have experienced bullying, harassment and discrimination compared to White barristers (53% of Black respondents; 47% of Asian respondents; 46% of respondents from mixed backgrounds; compared with 26% of White respondents).
Perhaps the most damaging statistic for the Bar in the 2021 report concerns where these inappropriate behaviours emanate from. Of those who had experienced bullying, 48% identified the perpetrator as another barrister and 45% had been subjected to bullying by a judge. We are doing this to ourselves.
We are also doing it to our pupils. More than a third of respondents to the Bar Council’s Pupil Survey in March 2022 had personally experienced bullying or harassment despite having been at the Bar for less than 12 months.
And it goes on. The Bar Council runs an online tool called ‘Talk to Spot’ which allows confidential and anonymous reporting of inappropriate behaviours. The app receives between 10 and 15 reports from barristers every month, including a number of really serious complaints.**
So how do we buck the trend and start to (at least) reduce bullying, harassment and discrimination at the Bar?
Regulation has a part to play. For far too long, our disciplinary institutions failed to recognise the gravity of the problem. In 2021, a series of decisions by Bar Disciplinary Tribunals drew criticism for the leniency of sanctions imposed for sexual harassment and misconduct. A male barrister faced only a reprimand and a fine for grabbing a 22-year-old female pupil and smacking her on the bottom. Another male barrister received a short suspension and a fine for sexually assaulting two women. A third male barrister made national news for being one of the first people convicted for ‘upskirting’ – he was suspended from practice for just six months.***
In response, the Bar Tribunals and Adjudication Service launched a consultation on sanctions for misconduct which resulted in updated guidance in 2022. Under the new rules, Disciplinary Tribunals are given the authority to impose increased penalties for cases of sexual harassment (BTAS Sanctions Guide Version 6). The ‘starting point’ for ‘minor’ sexual harassment is now suspension of up to 24 months (instead of a reprimand and a fine) and the upper limit for ‘significant’ cases is disbarment.
The BTAS has explicitly said that these sanctions are to be imposed for deterrent effect, which is a welcome development, and certainly provides a more effective disincentive against sexual misconduct than the previous sanctions guidance. However, there is broader range of problematic behaviours that still need to be addressed.
The heads of all the legal services regulators, including the Director General of the BSB, recently produced a joint statement, Tackling Counter-Inclusive Misconduct Through Disciplinary Processes which, importantly, recognises that bullying and harassment are barriers to a successful legal career. However, the statement also makes the significant concession that ‘regulation is not the whole answer, or even most of the answer.’
While that may be true, there is still more the BSB could do to address bullying at the Bar. For example, one of the Bar Council’s key objectives in its strategy to tackle bullying and harassment is to persuade the BSB to make explicit reference to ‘bullying’ in the Code of Conduct since, remarkably, that word is nowhere to be found in the current edition.
Our failure, as a profession, to deal with the problem of bullying should be a source of collective shame. We can no longer ignore, excuse or tolerate inappropriate behaviours. We can no longer tell ourselves and our more junior colleagues that things are getting better. We cannot expect our regulator or our disciplinary tribunals to fix this for us. We must try to fix this for ourselves.
The Northern Circuit, where I practise and serve on the Equality, Diversity and Social Mobility Committee, has adopted a proactive approach to equality, diversity and inclusion in recent years. The Circuit Executive has published a comprehensive Race Working Report on promoting racial equality and produced a five-step action plan with the aim of embedding equality and diversity in the ‘culture, mind-set and functions’ of the barristers, chambers and institutions of the Northern Circuit.
An important development in the Northern Circuit’s effort to address bullying and harassment at the Bar has been the addition of ‘inappropriate behaviours’ training to Circuit’s continuing education programme. Specifically, Circuit’s compulsory training sessions for prospective pupil supervisors and new pupils now include talks addressing bullying and harassment. The training for pupils is designed to alert our newest barristers to problems they may face and identify the opportunities for advice and support on Circuit and beyond. The training for supervisors encourages an open discussion with pupils about the problem of bullying at the Bar and aims to provide supervisors with a toolkit for supporting their pupils.
Feedback from both cohorts has demonstrated the importance of introducing the topic of bullying to the training syllabus. Because of our reluctance as a profession to speak frankly about our problem with bullying, many pupils are already worried about raising concerns about inappropriate behaviours for fear of being seen as a ‘troublemaker’. Many pupil supervisors are unsure about what advice to give or what help is available. Dealing with inappropriate behaviour issues head-on is the first step in eliminating the tolerance (and perceived tolerance) of bullying at the Bar.
Bullying is a sufficiently large problem for the Lord Chief Justice to have introduced compulsory training for all salaried judges.
In November 2022, Lord Burnett told the House of Commons Justice Committee that the Judiciary would receive training in avoiding inappropriate behaviours. The LCJ followed that up in January this year with the Statement of Expected Behaviour setting out nine expectations centred around dignity and respect. Further, it encourages action to be taken by witnesses to judicial ‘bullying, harassment or discrimination or other behaviour that falls short of these expectations’.
In March 2023, the Lord Chief Justice told an event organised by the Inns of Court Alliance for Women, Tackling Judicial Bullying, that the published expectations were a ‘powerful statement to the Judiciary and the world that this is a problem we take with the utmost seriousness’.
If the Judiciary is able to reflect on its failings in this area and prescribe an education programme for its membership in order to eradicate bullying, then the Bar should be able to do the same.
The problem, of course, is that as a profession of (largely) self-employed individuals, we are not required to undertake much in the way of ‘compulsory’ training. Perhaps that will change and the BSB will follow the lead of the LCJ in mandating inappropriate behaviours training.
Until then, we at the Bar must take responsibility for educating ourselves. We must use what opportunities there are for compulsory training to shine a light on the problem of bullying (as the Northern Circuit has done for their pupils and pupil supervisors). Our institutions – Circuits, Inns, specialist Bar associations and even individual sets of chambers – should find ways to get bullying on the agenda; to educate their members and require them to engage in preventative strategies.
We must take it on ourselves to dismantle the real and perceived tolerance of bullying at the Bar. We, together, can define our own behaviour expectations, shape an inclusive culture and curb the shameful upwards trend of bullying, harassment and discrimination.
Talk to Spot, the online tool for the Bar to confidentially and anonymously report inappropriate behaviour and concerns, can be accessed here.
To find out more about the Bar Council’s action on bullying and harassment, see its dedicated web pages here.
References
*Bullying, discrimination and harassment at the Bar, a qualitative study by YouGov for the Bar Standards Board, October 2020.
** ‘Barristers’ hotline for bullying and harassment’, Jonathan Ames, The Times (paywall), 1 December 2022:
*** ‘Meaningful sanctions and priority action’, Francesca O’Neill, Counsel June 2021
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