Lessons learnt: If you want positive change, act positively

A strong work ethic and tenacity are essential to achieve at the Bar, but naïvety helps too. Starting first-six in 1996 I knew that the profession was still very much ‘old school tie’ but believed that it was, at heart, a meritocracy. As I arrived at Chambers on my first day, one of the tenants asked me, ‘Eton or Harrow?’ When I looked blankly back at him, he laughed and said, ‘We used to allocate pupils their room depending on whether they were Eton or Harrow educated, but tempora mutantur and all that.’ He knew that I was comprehensive school-educated, the first in my family to go to university and had no connections. However, I did have self-reliance and the hubris of youth – Cicero had been a ‘homo novus’ after all, and he did alright… First-six was an education in the rules of the club, second-six was practice in abiding them. Early on, I was admonished by a judge for not tying my hair back neatly enough under my wig, and was warned by senior colleagues to swap my trouser-suits for skirts to avoid irritating other judges.

The pursuit of equality is a marathon, not a sprint. In the early 2000s the Bar Standards Board (BSB) and Bar Council published various focus reports comprising anecdotal evidence of inequality and suggesting a stark difference between the career prospects of male and female barristers. The profession shrugged off these reports and was opaque about the briefing and earnings of individual barristers of comparable call. Women who complained of pigeon-holing or exclusion were dismissed as troublemakers, as unable to balance family and professional life, and as second-raters looking for an excuse for a less than stellar practice. Having built a decent practice through playing the game with an unequal hand, I wanted better for the next generation.

Positive change requires positive action. In 2016 I joined the Bar Council Equality, Diversity and Social Mobility Committee and began researching the gender pay gap within the profession. Anecdotal evidence has its place, but empirical evidence from impartial data allows the drawing of objective inferences. My first report focused on the Criminal Bar. It was completed as I was appointed to the Bench and published shortly afterwards. For the first time the Bar was confronted with the cold hard facts about legal aid and Crown Prosecution Service (CPS) receipts per gender. My second report a year later showed that little had changed, save that the CPS had digested the first report as a call to action and conducted its own audit and internal inquiry. I completed a third report after two senior female civil barristers asked me to look at the allocation of publicly funded civil instructions. Tellingly, neither would agree to be acknowledged, fearing they would lose work if seen to have contributed. This final report evidenced significant inequity in allocation of work and receipts within the publicly funded civil Bar, and continuing remarkable imbalance at the Criminal Bar. The Bar Council has now picked up the mantle: through analysing gross earnings of the self-employed Bar declared via annual Authorisation to Practice declarations, it is assessing and publishing annually the disparity in pay between the sexes overall and by practice area. It’s good too to see the growth of professional associations dedicated to helping redress this imbalance, such as Women In Criminal Law, Her Bar, and Women In The Law UK.

Women at the Bar often have to navigate unprofessional behaviour from male colleagues and from those who instruct them. Today’s generation seems better able to call out poor behaviour, although they haven’t been helped by my generation. I suspect that few of us who began practice before the turn of the century avoided sexual harassment or sexist abuse. We either ignored it, treated it as ‘banter’, or dealt with it privately – fearing that complaint might result in effective expulsion from or sidelining within a profession into which we felt lucky to have been admitted at all. Now there are far stronger and more transparent reporting procedures in individual chambers and via the Bar Council and BSB, hopefully reflecting a culture change and a Bar that welcomes – and is a safe place – for all.

Diversity is oxygen to a healthy democracy. And to a healthy Bar. Sitting on various diversity panels over the years I have heard many inspiring stories from high-achieving ethnically and socio-economically diverse barristers, including individuals brought up through the care system, women who were teenage single mothers, individuals who have no A-Levels because education was not valued by their parents, individuals with an autistic spectrum condition, etc. These barristers know what it is to struggle to be heard, and know how to give a voice to the marginalised, the disadvantaged and those who feel alienated from the system. My Inn, Gray’s, has a fantastic scholarship programme for exceptional students and pupils who cannot otherwise afford the training – an investment in the future which can only strengthen the profession. Similarly recognising that for many young people the barrier to a career at the Bar is access rather than interest, Lady Justice Andrews, Gray’s Inn Vice-Treasurer, last month facilitated the launch of ‘Advocating Girls: Women and the Justice System’, a networking coalition between Gray’s members and girls from six state and public schools across Berkshire and London.

Public service is a privilege. Like judges, all barristers accepting publicly funded work are public servants. The Nolan Principles of Public Life – selflessness, integrity, objectivity, accountability, openness, honesty and leadership – are principles to die on a hill for. It may not be possible to live up to them all, all of the time, but we must try.

Lady Hale’s appointment as a Law Lord [in 2004] was overdue, necessary and transformative. She brought clarity and practicality, regarding interpretation of the law not as an intellectual exercise for esoteric debate, but as imperative to serve and to protect current and future generations of a diverse constituency. Her dissenting judgments also make excellent reading.

There seems to be a vogue among young barristers marketing themselves as ‘frequently instructed in work beyond my call’. This ambition is understandable but unwise. An inexperienced first-class mind remains inexperienced – and no match for a manipulative or difficult defendant in a fast-moving and emotionally charged arena. Those who walk confidently before they start to run ultimately run faster.

Trust and respect your clerks. I owe everything to mine – John Francis and Tim McBennett are clerking legends and gentlemen; they helped me build my career and asked nothing of me beyond hard work, integrity and professionalism. My old head of Chambers recently opined that barristers are mere jockeys – the brief is the horse and the clerk is the trainer. The best trainers pick the right jockey for the right horse and the right meet. Never forget that you’re the jockey, not the trainer.

The Criminal Bar is remarkably resilient. Each generation mourns the loss of the good old days – ‘there will be no more characters like…’ is a regular lament. It was said as Marshall Hall’s star faded, it was said when George Carmen retired, and again upon the death of Jeremy Hutchinson. Yet the ‘death of advocacy’ was proclaimed 2,000 years ago after Cicero was killed on the orders of Mark Anthony. When I look back over nearly three decades in the Crown Courts, the Criminal Bar was then, and is now, as characterful as ever, and, hearteningly, many of the young women who appear in front of me promise the wit, intellect and skill of Anns Goddard, Curnow, Ebsworth and Rafferty.* Advocacy, and what we regard as great advocacy, doesn’t die; it evolves. Tempora mutantur and all that. 

*Like Lady Hale, all Gray’s alumnae.