Women barely feature among the top 100 criminal defence barristers when judged by earnings, new figures have shown, and the Bar has been warned that the government could use EU rules on equality in procurement to force change.
It all comes as the Bar Standards Board (BSB) has laid out its plan to improve the position of women in the profession, a significant focus of which is the fair allocation of work.
According to statistics obtained from the Legal Aid Agency by Her Honour Judge Emma Nott, over each of the past five years, the highest number of women in the list of the 100 criminal defence barristers earning to most from legal aid was a mere seven.
In the last year for which figures were available, 2016-17, it was just four.
Broadened out to the top 500 earners, the highest number of women was 90 (18%) in 2014-15; it was 63 (13%) in 2016-17.
Figures supplied by the Crown Prosecution Service to the judge – who collected them on behalf of the Bar Council’s equality, diversity and social mobility committee – showed that women barristers were more likely to be instructed for the prosecution: in 2016-17, there were 99 women in the top 500 earners and 17 in the top 100.
“While clearly still unrepresentative, the prosecution figures would suggest that the CPS does better in terms of gender equality than defence solicitors when instructing advocates,” HHJ Nott said.
Writing in the Bar’s Counsel magazine – which also drew on research published last year about the prevalence of all-male teams appearing in the Supreme Court – HHJ Nott urged chambers to “step up effectively to meet their equality obligations”.
She said: “Whatever potential difficulties may lie ahead regarding progression to and through the judiciary, there is a more immediate difficulty for the Bar.
“The obvious point is that it cannot continue to thrive if it is not reflective of the society within which it operates.”
Noting that some of the “more successful lines of attack” in the Bar’s dispute over legal aid and court reform have been under the Equality Act 2010 – she said they were “likely to be less effective if the Secretary of State is able in response to hold the equality and diversity of the Bar up to scrutiny and find it wanting”.
HHJ Nott continued: “Further, the Ministry of Justice, as a procurer of legal services through its arms-length bodies, will be careful not to find itself in breach of its obligations under European law to ensure that its female providers have equal access to (and equal payment in respect of) instructions…
“These directives, taken together with the Treaty on the Functioning of the EU and Charter of Fundamental Rights of the EU, would appear to place an active obligation upon the Secretary of State for Justice as a procurer of legal services to ensure equal treatment and equal opportunity among his providers.
“If the Bar continues to fail effectively to act, he might in due course consider whether and how he should implement article 5 of Directive 2010/41/EU, which allows positive action to ensure full equality in practice between men and women.”
Last week, the BSB published a 10-point action plan to work towards eliminating the discrimination, harassment and other unfair treatment of female barristers.
Since the draft version reported by Legal Futures in January, it has dropped specific mention of creating the role of ‘work allocation officers’.
However, among the actions will be reviewing the role of equality and diversity officers within chambers to explore how it can be enhanced.
Others actions included working with others, including the Bar Council, the Institute of Barristers’ Clerks and the Legal Practice Management Association, “to address cultural issues at the Bar which may be contributing to various types of unfair treatment for women, and to consider future training needs”.
The BSB will also review how its approach to supervision and enforcement can take account of equality and diversity best practice, and it will look to measure the overall effectiveness of the equality rules in the BSB Handbook.
It also plans to explore best diversity practice in work allocation with regard to QCs selecting juniors.
The BSB’s director of strategy and policy, Ewen MacLeod, said: “These proposals seek to focus on the unfair treatment of women barristers and to improve the retention and progress of women at the Bar…
“It is clear that the profession needs to continue to work together to address these issues, ensure more widespread compliance with our equality rules, learn from the examples of good practice that exist at the Bar, and to focus on delivering practical and workable solutions.”