Gender Diversity at the Bar?

ELA launches Counsel Instructions Monitoring Scheme amongst its members to help ELA to promote equitable briefing of counsel

20 January 2020

Recent press coverage:

Litigation Futures, 31 January 2020: Employment lawyers lead the way on "equitable briefing"

The Lawyer, 23 January 2020 (£): Diversity at the Bar: law firms challenged to report gender instructions

Following a pilot monitoring scheme in 2019 in which the firms represented on ELA’s Management Committee were invited to monitor their employment teams’ instructions of counsel by reference to gender, ELA is now embarking on a similar programme by inviting all its members to participate in the scheme.

The data returned during the 2019 pilot scheme tended to suggest that the gender of the instructing solicitor may have played a part in the decision-making process when briefing counsel:  in other words, it appeared that a female barrister was more likely to be instructed in a case where the instructing solicitor was female.  Given that the findings from the pilot monitoring scheme could only be tentative as the data set was so small, ELA is rolling out its monitoring scheme to all its members who regularly instruct counsel to participate voluntarily. As such, we are only collecting data from solicitors firms and in-house teams who instruct counsel.

Claire McCann of Cloisters told The Lawyer in an article published on 23 January 2020:

“Barristers at the independent bar are self-employed and, whilst we group together with colleagues in a chambers-setting, it can be difficult to mobilise and challenge the status quo, even whilst recognising that there is an inherent problem with inequitable briefing of counsel.   Without robust data, there is no evidential basis on which to challenge practices which may be limiting talented members of our profession and perpetuating a system where only 15.8% of our QCs are female; only 7.8% come from BAME backgrounds; and only around 1% have a disability.  This in turn leads to a lack of diversity in our Judiciary which still largely recruits from the Bar.

The issue of equitable briefing has been increasingly widely reported in the press and has led to the Bar Council to mandate individual chambers to monitor the allocation of their unassigned work.  Some chambers (such as Cloisters, my own chambers) have gone further and monitor all instructions.”

Marian Bloodworth, Employment Partner Kemp Little LLP and Deputy Chair of ELA told The Lawyer:

“Solicitors are also very much aware that equitable briefing has been raised as a concern and ELA was keen to explore steps that we could take to help encourage equitable briefing.  With Claire’s help as a member of the Management Committee, last year we devised and implemented a pilot scheme to monitor the instructions of employment law counsel by reference to gender, which was piloted amongst those employment law firms represented on the Committee.  The data set was necessarily very small and no clear picture emerged but some of the analysis tended to show that the gender of the instructing solicitor might be a relevant factor. In order to gather a wider data set we have therefore rolled out the scheme more widely to all ELA member firms, to encourage them to voluntarily monitor their instructions of employment law counsel by reference to gender.  We aim to analyse the data collated and report back in time for our AGM in May 2020."

Previous articles in The Lawyer on gender diversity at the Bar:

The Lawyer published an article analysing appearances in the higher courts by male and female employment law barristers, concluding (as per this headline) that: (£) “…gendered instructions at the Bar are scuppering female barristers’ ambitions for silk”; (3 July 2019)

Herbert Smith’s Head of Dispute Resolution Damian Byrne Hill, told The Lawyer that: (£) “A significant portion of the responsibility for providing opportunities for female barristers to succeed, though, of course falls to solicitors” (10 July 2019)

Karen Seward (A&O’s Global Head of Litigation) told The Lawyer (in its article on 11 July 2019) that, “Clerks must suggest diverse teams of barristers to our clients”

If you are an ELA member and would like to participate in  the Counsel Instructions Monitoring Scheme, please contact ela@elaweb.org.uk