The Bar Standards Board (BSB) is considering the impact of the HM Courts and Tribunal Service’s (HMCTS) proposals for longer sitting hours on the diversity of the profession, the only legal regulator so far to take a step, however tentative, into an issue that has generated bitter opposition from the profession.
The chairman of the Bar Council also said this week that “it is time to admit that this is a bad idea, and to think again”.
HMCTS is planning to pilot ‘flexible’ court sittings in the autumn, introducing a ‘shift’ system with courts starting at 8am and finishing at 8.30pm. There have been loud objections to the impact they would have in particular on female lawyers with caring responsibilities,
A BSB spokesman told Legal Futures: “We are considering the regulatory implications of the HMCTS proposals and will be especially interested to know the results of the evaluation of the pilots in due course.”
Legal Futures understands that the BSB is looking at the issue from three perspectives: first, in light of the regulatory objective in the Legal Services Act 2007 that requires it to encourage “an independent, strong, diverse and effective legal profession” – with an emphasis on the ‘diverse’.
Second, the BSB’s own 2016-19 strategic plan, that makes “improving diversity, and enhancing equality in practice and culture at the Bar” one of its priorities for the period.
Third, it is watching whether HMCTS is complying with its own duties under the Equality Act 2010.
Though there is nothing concrete that the BSB could do if any of these issues came to pass, this would not necessarily stop the regulator from speaking out – it has previously done the same over its concerns about the impact of legal aid cuts on the Bar.
Bar Council chairman Andrew Langdon QC said the plan for courts to operate on a shift system, so-called flexible operating hours, was on a “collision course” with “the determination of the legal profession and many within the judiciary to do whatever it takes to retain talented women at the Bar so that the senior Bar and the judiciary at all levels exhibit a stronger representation of women”.
He said: “HMCTS’s proposals involve introducing a pattern of court sitting hours that are seriously disruptive to those that have caring responsibilities for children, the elderly and others in need of care.
“We might agree that it should not be so, but it self-evidently is currently the position that primary carers are overwhelmingly women…
“We are making progress, but it is very slow. When surveyed, women at the Bar consistently explain that unpredictability of court sitting hours is a major disincentive to continue in practice once care commitments arise.”
To try to tackle the problems created by unpredictable sitting hours, the Bar has recently issued a protocol, which it has invited both the judiciary and HMCTS to adopt, that suggests consistent sitting hours save in exceptional circumstances.”
Mr Langdon argued that HMCTS was motivated by the lack of adequate funding of the courts and pressure to close more.
“The plans are ill-thought through – not just for the impact on diversity but on all other court users. Trials will take longer because they are to be spread over shorter shifts. Previous similar experiments have proved to be expensive failures.
“Even if shift sitting were to save money by enabling courts to close, the price in terms of retaining or even entrenching the domination of men in senior legal and judicial positions, ought to be unacceptable to us all.”
Meanwhile, writing for the Law Society – which also opposes the plans – Amy Clowrey, an executive committee member of its Junior Lawyers Division (JLD), said they were likely to hit those at the junior end of the spectrum as well.
“The JLD is concerned that firms will align their working hours with those of the court, meaning that firms may be open to the public from 8am-8.30pm.
“As ever, administrative duties generally fall on the junior lawyers and as such the JLD is concerned that extended court hours will result in junior lawyers being pressured to work longer hours for little, if no, remuneration or days in lieu.
“In addition to this, in the civil courts the proposals indicate that court work involving litigants in person, applications and bulk work will be done out of the usual court hours, those hours being 8-10.30am and after 4pm. This work is likely to fall on junior lawyers.
“Similarly, in the criminal courts there are proposals that magistrates bail work will be heard from 2-6pm in the Crown Court. The hours of the magistrates’ court will also be extended, with the first hearing at 9.30am and the court closing at 8.30pm.
“Junior lawyers specialising in criminal defence work will be particularly affected as many are on the duty rota scheme and therefore already represent those accused at the police station out of hours.
“As all advocates know, work does not start and finish in line with court hours. This will mean that advocates will need to attend court both before and after hearings (as is current practice) to meet with clients, opponents and to file documents.
“This raises further concerns about the workload for advocates and junior lawyers, who will likely be drafted in to prepare documents for court.”