BSB: "Diversity and Regulation at the Bar" by Mark Neale

Women's Issues
October 2021

Ninety-nine years on from Dr Ivy Williams’ call to the Bar in May 1922, formal equality for women in the profession has yet to translate into practical equality.  Women are under-represented among QCs[1] . Women barristers earn, on average, less than their male counterparts even taking into account seniority, specialism and geography. Women from minority backgrounds earn less still[2].  And many women pupils and barristers experience bullying or harassment – far more than report such treatment to the Regulator.

So why has close on a century of formal equality failed to produce equality of opportunity or outcome for women barristers? And what is the role and responsibility of the Regulator – the Bar Standards Board – in putting this right?

Well, it should be obvious – or at least I hope it should – that prescribing equality through regulation is not on its own the answer.  If regulators could command equal treatment and equal outcomes through their regulations in this or any other profession, we would have achieved equality a long time ago.

Nor, I can tell you, is continuing inequality down to a failure on the part of the regulator to persuade the profession of the importance of the issue. Even in my short tenure as Director General of the Bar Standards Board, it is obvious to me that the profession’s leaders are just as committed to achieving equality for women barristers as are we, the regulator.  So this is not a case of a regulator up against an unheeding professional hierarchy.

No, what in my view perpetuates inequality is an accumulation of long-standing and unexamined practices and customs which work against the progress of women.  In other words, this is a cultural challenge which will require the Bar Standards Board and the profession to work together to bring about change.

Our contribution, as the regulator, is fourfold.

First, regulation itself, though not sufficient, does have an important part to play.  The Code of Conduct we prescribe, and the associated sanctions for breaching the Code, send out important signals about what behaviour is simply not acceptable.

So there was widespread public concern that the current sanctions guidance took too lenient a view of sexual harassment and bullying and did not, in a series of cases, match appropriate punishment to the seriousness of the misconduct.  For exactly that reason, the Bar Standards Board worked with the Bar Tribunal and Adjudication Service (BTAS) to set in hand a review of the Sanctions Guidance last year.  That review is now in its final stage of consultation and, among other things, has proposed that the lower end of sanctions for any proven offences of sexual misconduct should be 12 months suspension from practise.  

Such a change to our disciplinary regime will send out a very clear signal that the Bar will not tolerate sexual misconduct. We shall not hesitate to use regulation where it can have a similarly powerful signalling or practical impact.

Second, the Regulator must ensure that issues of discrimination and inequality are researched and publicised[3].

I began this piece by setting out telling evidence that women pupils and barristers fare less well than their male counterparts.  All this evidence is drawn from analysis and research published by the Bar Standards Board in the course of the last year.  I encourage you to follow the links and read the reports themselves. They underline the scale of the challenge.

Of course, we are not along in drawing attention to these issues.  The Bar Council also regularly publishes analysis of barristers’ working lives. And the report of Voices of Women at the Chancery Bar [4] provides one of the most powerful insights I have read into both the practices and attitudes that hold women back, as well as to good practice in promoting diversity.   But the Regulator has both a unique vantage point and a unique authority: we should use both to highlight inequality.

Third, the Bar Standards Board must then challenge the profession to debate the evidence and to change in response to it.

For example, we have followed up our research on bullying and harassment at the Bar by facilitating a series of roundtable discussions aimed at understanding how chambers and employers can create an environment and put in place procedures which ensure that bullying and harassment are taken seriously, are reported and are addressed.  We shall shortly bring forward proposals based on these roundtables.

Fourth ,and finally, the regulator must collaborate with the profession to bring about the culture change that can alone guarantee inclusion and equal treatment for women.  To do that, we must identify and implement the practical measures which will promote diversity generally and equality for women barristers in particular. I think, for example, of fair approaches to recruitment to pupillage and of effective approaches to monitoring the distribution of work.

This is why the consultation[5] we launched this month on our strategy for the next three years highlights as a priority promoting best practice in chambers’ oversight of standards and diversity.  Because there is good practice out there.  

The picture is by no means uniformly bleak.  We want to work with the profession to define and generalise that good practice and so to break down the cultural barriers and out-moded ways of doing things which currently stand in the way of women at the Bar.

And that brings me to Her Bar itself. As a regulator we should actively look for allies working to the same ends as ourselves.  Her Bar with its menu of practical support for women students, pupils and barristers is just such an ally.  We look forward to working with you to publicise the issues and to promote the solutions.










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