Gordon Jackson: Looking for a legally level playing field

Next weekend I'm going to a reunion to celebrate, if that's the right word, 50 years since going to Dundee to study law. There were four women in the class. Some years later I joined the Faculty. Four women there as well. The law clearly was the preserve of white men with the odd token female and no-one from a minority ethnic background.

Gordon Jackson, QC, is Dean of the Faculty of Advocates.

Now it’s very different. More than half the law graduates are women and barriers of class and colour have disappeared. Problem solved?

Unfortunately not. While there are many more women now at the Bar and more diversity generally, there are still far fewer women than men despite the fact that for many years the majority of law graduates have been female. This year, of seven new advocates, six are men.

There are fewer women at the Bar now than ten years ago, suggesting more women than men leave practice. Perhaps most concerning is the fact that there is a very significant disparity in average earnings between male and female advocates at all levels of seniority.

Of the seven new advocates this year, six are men, and fewer women are at the Bar than ten years ago

Some of the reasons for all this will be no-one’s fault or responsibility, but the feeling remains that, as a body, we should be doing more to improve the situation. To that end the Faculty’s Equality and Diversity Committee has been tackling these issues for some time and made a number of proposals to help create, as far as possible, a more level playing field.

In particular, there was a need to acknowledge and recognise as a matter of principle that members might want to work more flexibly or at a reduced level or take a career break so they can manage childcare, family or other responsibilities while continuing their practice.

It is, after all, in Faculty’s own long-term interest to retain all its members, including those who work flexibly or at a reduced level and in whose practices much time and money has been invested.

Of course, fine sentiments will need translated into detailed policies dealing with a host of practical issues, both general and financial, but the general purpose is clear. The perception should be dispelled that a career as an advocate is only open to a few and that those (often women but not always) who need more flexible working arrangements must go elsewhere.

Of the seven new advocates this year, six are men, and fewer women are at the Bar than ten years ago

Other perceived problems can be tackled at the same time. For example, there is a perception that when counsel are being instructed, there is at times an unfair bias, albeit unconscious, and that more often than not favours white males. Does that exist? If so, how common is it?

It is hard to say, as many factors affect who is instructed in any case and the bottom line must always be that clients and solicitors are free to instruct as they please. I believe, however, that to some extent it does exist and the least we can do is put policies and practices in place to guard against that danger and ensure that, at our own end, such unfairness does not happen.

There is no single magical solution but acknowledging and dealing with this difficult and at times controversial issue is better than brushing it under the carpet.

That’s why I intend to make sure that, like other Bars elsewhere, the Faculty will have a clear, transparent equitable briefing policy and so, too, will each individual stable. That will include having a nominated clerk responsible for monitoring and assessing the situation within their own stable. That at the very least will make everyone alive to this issue.

But Counsel are by definition most often chosen and instructed by others, including solicitors and other professional bodies. Some have a clear policy on this issue, others do not. All I can do is urge those who instruct counsel to be aware of this danger and deal with it appropriately.

There is much more that can and will be done: a mentoring scheme providing real advice and assistance when needed, as it often is; and clear directions to deal with any bullying or harassment. All of this is not just more policies for the sake of it. We believe we are a centre of excellence. We want to attract the brightest and the best.

If there are barriers, real or imagined, that discourage some from a career at the Bar, we will not ignore them but do all we can to remove them.
l Gordon Jackson, QC, is Dean of the Faculty of Advocates.