IWD 2022: Who gets led and who gets to lead?

The Annual Bar and Young Bar Conference 2021 was marketed under the banner of ‘Recovery, Growth and Transformation’. Transformation can promote recovery and growth… so, queue the session on ‘Improving diversity through fairer distribution of work’.

The session, which took place on 20 November 2021, was chaired by David Lammy MP, the Shadow Justice Secretary who gave up his time to guide masterfully this important debate which remains crucially relevant to the Bar in 2022; particularly to Black female practitioners.

The supporting cast was no less formidable and comprised Barbara Mills QC, family law silk and Co-Chair of the Bar Council’s Race Working Group, Grace Ononiwu, Director of Legal Services at the Crown Prosecution Service (CPS), Chinwe Odimba-Chapman, Global Partner for Talent at Clifford Chance and HHJ Emma Nott, Reading Crown Court.

David began by acknowledging what is on all Black practitioners’ minds: how depressing it was that – 26 years after he was called to the Bar – the problems identified in the Bar Council’s Snapshot Report Race at the Bar are still with us. As practitioners of 30 years, Barbara and Grace echoed his comments. To quote, ‘there is a weariness’.

David correctly identified that many of the problems stem from ‘gatekeeping’ (defined by the Cambridge English Dictionary as the ‘activity of trying to control who gets particular resources, power, or opportunities, and who does not’). Barbara kicked off the discussion in relation to the experience of Black and Brown practitioners at the Bar. She clarified that fair distribution of work encompasses a number of areas, not just unallocated work, but also allocation of returns within chambers, and most importantly, who leads and gets led. Also identified by the Race Working Group was the role that various stakeholders – solicitors, professional clients and leaders within chambers – play in the allocation of work, ie who is invited to lead, and be led.

Barbara pointed to analysis of the figures in relation to the Criminal Bar which demonstrates that the Black female practitioner can earn as much as £19,000 less than her male counterpart. This suggests what many theorists have been espousing for a while, that at the ‘bottom of the heap’ is the Black woman. The Black female is often said to be the victim of intersectionality; that is, where race and sex intersect. This, Barbara noted, corresponds directly with ‘who stays and who goes’ at the Bar.

Chinwe’s perspective was from a large law firm. She spoke of how her firm overcame barriers to collecting data from its Black and Brown employees, who were often reluctant to engage with the process for fear of reprisals, by creating safe spaces using focus groups.

David sought clarification on the use of the word ‘tokenism’. He rightly identified that ‘tokenism’ is another word for the ‘merit’ argument. This raised a very important issue: ensuring that Black and Brown people are not put up positions for which they are not fully qualified or trained, and therefore ‘set up to fail’.

Barbara said it was time to change the narrative. Black and Brown practitioners are not looking for favours or tokenism, she argued, they seek fairness, making the playing field the same for everyone, not just some. By way of an example, Barbara asked why it is ‘tokenism’ when a Black female barrister is appointed to the Bench. This strips that hard working colleague of everything for which she has worked. No other group faces this level of criticism on appointment.

She strongly encouraged barristers to read the Bar Council’s Race at the Bar Report, which contains 23 recommendations for chambers and members of the Bar. The Bar Council has toolkits to encourage chambers to meet their objectives.

Grace, meanwhile, spoke extremely positively of the work being done by the CPS to produce a diverse workforce. This includes transforming the recruitment process so that recruiters did not employ friends whom they knew and had dinner with. Grace is keen that this change within the CPS will impact on the Bar because the CPS will be engaging with chambers in a different way. It now wants chambers’ data on who gets allocated CPS work, who gets led and who gets to lead.

Her entire raison d’être, she said, was to move from intention and wonderful words, to action. This was what the audience was waiting to hear. Jo Sidhu QC, Chair of the Criminal Bar Association, rose to his feet. He echoed the weariness of those Black and Brown practitioners who have been ‘in the trenches’ on these issues for the past 30 years and more. No one is interested in more opinions, reports, roundtables, talk, talk, and more talk. His was a call to action. Grace, who is all action, made an interesting point: there is a need to encourage Black and Brown practitioners to undertake prosecution work. This is not a natural choice for them and the reasons are not hard to understand. Just visit the Old Bailey on any given day, and the majority being tried for murder and other serious charges are young Black men.

Barbara welcomed the recent move away from the acronym BAME. By way of example, an analysis of the 2020 silk appointment figures demonstrates that using BAME, the picture looks very different (14 of 116). However, when the BAME figures are actually broken down into how many silks are Black African or Afro-Caribbean, then the figure looks so dire that it is not collected. However, it is easy enough to deduce. Barbara went on to say that using data to improve outcomes requires us to see what is happening to specific groups in particular practice areas, so that efforts to bring about change can be effectively made.

Chinwe made an interesting point from which, perhaps, the Bar could learn. Data collection across her organisation, which is large and transnational, is not uniform. In some countries, where data collection is lawful without the need for individual self-declaration, that is the preferred method. Indeed, the point was made by Jo Sidhu QC from the floor that there is no good reason why the Bar Standards Board should not mandate the collection of ethnicity (broken down) and gender figures from chambers. However, collection of data in relation to other protected characteristics would have to be considered carefully.

David discussed the challenges he faced using the acronym BAME when compiling the Lammy Review in the context of judicial diversity. One per cent of the current judiciary is Black. The use of BAME obscures the problem. For example, the BAME used by the Judicial Appointments Commission includes Jewish minorities which can skew the results in terms of number of actual Black judges. David that he could not point to a single Black senior Crown Court judge and that this is a serious problem for the judicial system.

Grace called for engagement by practitioners within the CPS in self-declaring their ethnicity. She stressed that data is key to underpinning action. She pointed to CPS Advocate Panels and launch of a digital application which will record all instructions, returns and reasons for returns to enable monitoring of the briefing process which will ultimately lead to fairer distribution of work. Grace spoke of the launch of the Treasury Counsel pathway, with a view to promoting more diverse panellists. Grace was keen to stress that this is not about guaranteeing people a job or giving a handout; it is about demystifying the process and encouraging Treasury Counsel from a wider pool of advocates than is currently the case.

Grace made the point that she has instructed all Chief Prosecutors to have a conversation with chambers about what they are doing to support the CPS in this important work. This is embedded into the performance appraisals of chief prosecutors.

Chinwe also discussed how Clifford Chance’s diverse slate policy was launched with the need to look at diversity of instructions across the board – not just to counsel, but mediators and arbitrators as well. Interestingly, this, she said, was driven from the top down, and gathered pace following renewed commitment from the top.

While admitting that another ‘opinion piece’ would not be particularly helpful, Emma took the audience through published data, including her own. She has herself set about collecting and analysing data in relation to the position at the Criminal Bar from the CPS and Legal Aid Agency. Emma flagged data published by Public Law in 2017. Since its inception in the summer of 2015 there have been 470 cases involving about 1,300 individual advocates. The research demonstrated that the female junior Bar was significantly underrepresented in what are complex, high profile and significant cases. Unfortunately, there was no data in relation to the Black female barrister.

It came as no surprise that the data showed that women were not being instructed in the more high profile, complex or lucrative cases argued before the Supreme Court.

On a date chosen at random at Southwark Crown Court, of 42 advocates appearing in the most serious financial crime and complex cases, only 13% were female advocates.

Equally, an analysis of fees paid by the CPS revealed that women were taking away a much smaller share of the pie in proportion to the numbers instructed, suggesting inequity in earnings of female advocates in comparison with their male counterparts.

Emma posed a very insightful rhetorical question to the audience. If the problem is not recognised, how do we address it? She argued that collection and analysis of data informs monitoring and promotes solutions.

Interestingly, the Civil Litigation Tracker of The Lawyer debunked the myth that female advocates were better instructed and renumerated in employment law. What the tracker revealed was that female advocates were only better instructed in pro bono employment cases.

Data from the Government Legal Department (GLD) also demonstrated that female advocates were more likely to instructed by the GLD at the lower rate of pay.

What is shocking is that female advocates under 15 years’ call and the younger members of the female Bar are earning less than their male counterparts. This does not bode well for recruitment, retention and the future of the Bar. 

Pictured L to R: David Lammy MP, Shadow Justice Secretary chaired the session and was joined by panellists Grace Ononiwu, Director of Legal Services at the Crown Prosecution Service, Barbara Mills QC, Co-Chair of the Bar Council’s Race Working Group, Chinwe Odimba-Chapman, Global Partner for Talent at Clifford Chance and HHJ Emma Nott, Reading Crown Court.

Race at the Bar: a Snapshot Report contains 23 recommendations for chambers and members of the Bar.

The Bar Standards Board’s report updating its analysis of data on barristers’ income by gender and ethnicity was published in February 2022. It found that female barristers continue to earn less than male barristers, and barristers from ethnic minority backgrounds continue to earn less than White barristers.

The Bar Council has produced toolkits to encourage chambers to meet their objectives in this area: the Monitoring Work Distribution Toolkit Part 1: Sex  and Monitoring Work Distribution Toolkit Part 2: Race.

HHJ Nott’s four-part series, ‘Gender at the Bar and fair access to work’, is available here.