Women Barristers: Is it Worth a Woman going to the Bar?

Frances Burton
Chambers of Leolin Price, London, UK; Bristol Institute of Legal Practice, University of the West of England, Bristol, UK
Chair, Association of Women Barristers, England and Wales
francesburton@dial.pipex.com
frances.burton@uwe.ac.uk

During four days planned by the local legal profession of a country renowned as having a notoriously macho culture in relation to the ‘sheilas’, the Commonwealth Lawyers Conference in Melbourne, Australia, included only one session on women lawyers, their aspirations and concerns. (One Australian contributor blamed women for not proposing themselves and thus forfeiting their right to complain, and both men and women for their lack of interest in women’s advancement, reducing it to a routine agenda item!)

Sadly, this reflects the current approach to women barristers in the United Kingdom, although they are, albeit often struggling, no longer either absent or officially discriminated against and some have done tremendously well, especially a few highly successful women at the Commercial Bar. But the Bar Council’s much vaunted ‘mainstreaming’ policy has not touched the anecdotal evidence of senior women leaving the Bar and such positive statistics as exist relate only to students’ progression from the Bar Vocational Course (BVC) into pupillage, where women (in a virtually 50:50 gender split at BVC enrolment) now score slightly better than men. The Bar Council is currently planning comparable tenancy statistics.

The conference session was led by Cherie Booth QC, a Vice-President of the Association of Women Barristers, high profile member of Matrix Chambers, Recorder and leading employment lawyer. She summarised the current UK Bar and Bench statistics (ie the diminishing percentage of women to men at the Bar as seniority progresses, plus the mere 6 per cent of women judges in the High Court and above, despite higher percentages on the circuit bench – about one third - and amongst the lower judiciary where it is nearly 50 per cent). She went on to paint a graphic picture of her ‘class of ’76’: 12 women were Called with her but apparently only 1 was still in practice; of the 69 men, 19 remained at the Bar, and 5 were QCs. Successive editions of Glanville Williams’ Learning the Law had advised women not to become lawyers in the first place, or to choose the solicitors’ side of the profession. She said it was hardly surprising that women were still disproportionately represented at the Bar and on the Bench and progress too slow in effecting real change. If she had realised the statistics at the time, she probably would have done something else.

It seems the Victoria Bar Research (Equality of Opportunity for Women at the Victoria Bar) in 1998 told a similar story, revealing attitudes such as that
‘important cases required a good fighter’ ie not a woman, and that women were ‘not good advocates’ as they were ‘too reasonable’ (!) but it appeared that the landmark appointment of a woman judge to the Bench there has improved things. So what is the contemporary UK law student to think?

By far the most radical of the speakers at Melbourne were, refreshingly, men. The Hon Justice Michael Black, AC (Chief Justice of the Federal Court of Australia) said that male combativeness is not always appropriate anyway, and feared women accepted the ‘trickle up’ theory too easily. The Hon Justice Michael Kirby (High Court of Australia) thought the small numbers were political, because men were not doing enough to effect change. He favoured a definite feminisation of the Bar to sweep away tokenism and symbolism and to replace both with actuals, making both Bench and Bar less ‘blokey’, as substance was everything and percentages needed to be achieved: for example, it was no coincidence that HIV was being tackled in Uganda where positive initiatives were being taken to advance more women, without, apparently, any perceived decline in standards (although he did not address the fact that there was such a decline when positive discrimination had been introduced in the Australian state of Queensland).

On the other hand, Chief Justice Sian Elias, GNZM (Chief Justice, New Zealand) thought it acceptable if change only eventually happened via commitment from women’s networks which could influence law reform, and educate the wider population so as to tackle traditional cultural issues, eg marriage laws. The Hon Justice Dato Siti Norma bteYakob (Federal Court of Malaysia) echoed this: Malaysian women have equal opportunities with men, as we do, but their statistics are similar to ours with no likelihood of early improvement, though there are now women in the Muslim and Sharia courts (which, though she mentioned this only as if in passing, Chief Justice Kirby thought ‘the most tremendous symbolic step’ which should be presented much more positively as a catalyst for change, encouraging a sisterhood approach in other Muslim and non-Muslim countries).

However, Chief Justice Elias did articulate two definable practical problems obstructing women’s advancement which resonate with our UK experience: (1) how to progress women in the profession (and keep them there in the first place), and (2) how to improve the process of judicial appointment. She thought the real issue was the profession’s acceptance of successful women generally, ie a ‘power’ as well as a practical problem.

The Hon Dora Byamukama MP (Parliament of the Republic of Uganda) said the simple solution was affirmative action to redress the balance of history, a 1995 policy in Uganda, which had worked: the Vice-President of Uganda was a woman and women judges in Uganda presided over commissions of inquiry as they were seen as incorruptible. She thought if women were really influential one third women would be a sufficient percentage to make a difference in the male dominated environment. The Hon Justice Black of Australia agreed with her and pointed out that the suffragettes had had to change the world as well as get the vote: thus the problem she mentioned was a recognisable syndrome.