June 2020’s Counsel magazine carried an article by Rachel Barrett of Cloisters entitled “Is a pandemic the right time to be thinking about diversity issues at the Bar?”. Barrett cites HHJ Emma Nott’s April 2018 Counsel article which reported that 57% of women at the Bar in 2013, and 4% of men, were primary carers, together with evidence of women’s chronic and continuing under-representation in the Supreme Court, EAT and Court of Appeal. She also discusses recent initiatives of the Employment Lawyers Association and the Bar Council’s EDSM Committee to monitor gendered behaviour in relation to instructions and pay, and Allen & Overy’s review of London Bar rankings in the Legal 500, which found significant differences in the language used to describe men and women.

The Law Society Gazette reported in July 2020 that the BSB was targeting sexual harassment. The BSB’s Annual Enforcement Report for 2018-19, the latest available, indicated that it had received nine reports from barristers of sexual harassment by another barrister in 2018-19 (up from 8 in 2017-18). There were 18 complaints of discrimination (up from 16), the BSB reporting that “as in previous years, they were nearly all dismissed at the initial assessment stage due to lack of evidence”. The 2018/19 report referred to the BSB’s 2018 report, “Women at the Bar: Research exploring solutions to promote gender equality”, which found that more than 40% of women barristers had experienced discrimination, with a similar proportion reporting experience of harassment. It cited the 2018 report’s finding that “a large majority of respondents who had experienced discrimination and harassment did not report that treatment”, most frequently because of “concerns about the impact on their career; fears that reporting would not achieve anything; and attitudes at the Bar towards harassment and discrimination”.

The BSB’s 2018/19 report attributed the lack of any meaningful increase in complaints of harassment to it, by contrast with other regulators, to the reluctance of victims to report. (Such failures to report by the victims of harassment or discrimination are themselves breaches of the Code of Conduct, albeit breaches which the BSB’s Handbook currently states that its policy is not to take enforcement action in respect of.) By contrast, as the Law Society Gazette’s article points out, the SRA was investigating 117 cases concerning sexual misconduct, following a significant increase in reporting.

The 2018/19 report referred to the BSB’s pilot harassment support scheme “under which specific waivers from the rC66 Handbook duty to report serious misconduct are granted on an interim basis, to allow the Bar to provide formal confidential support services to those who may have experienced sexual harassment or bullying”. The effect of the pilot scheme is that, whereas for the most part any barrister who is made aware of alleged harassment (eg by being told of this in confidence by a colleague) is obliged to report this to the BSB, exceptions have been made in respect of approved support schemes. The pilot scheme has been in place since January 2019 but, eight months later only “six such waivers had been approved and early indications are that they are yet to see significant use”.

The 2018/19 report recognised that the low rate of reporting of harassment, including sexual harassment, was indicative of “systematic issues within the regulated community”, stating that the BSB was “committed to assisting the profession to stamp out such behaviour “ and referring in this regard to the pilot waiver scheme and to its planned incorporation of “feedback from barristers on their experience of reporting harassment to us”, as well as to a “dedicated project on addressing reporting harassment at the Bar” which was ongoing in January 2020, and to the BSB’s work “with stakeholders, such as the Bar Council, to ensure a joined up and supportive approach”.

The BSB has its work cut out. Tackling sexual harassment and other forms of abusive behaviour at the Bar poses enormous difficulties given the particular nature of the occupation. Those who experience predatory/ abusive behaviour by senior employees in firms may be persuaded that their complaints will be heard and the perpetrators removed. But a junior barrister who is subject to such behaviour by a senior barrister may know that a complaint will result in serious damage to a career which may be significantly dependent on the goodwill of the perpetrator. Even if the junior barrister believes that Chambers will respond appropriately to a complaint (a situation which cannot be assumed given the differential earning power in issue), the cost of that complaint may be ruinous to its maker.

This is not a problem unique to the UK. In June 2020 the Guardian reported a “toxic culture of sexual harassment” in Australia’s legal profession. Commenting on findings of sexual harassment recently made by an investigation into former High Court Judge Dyson Heydon, and to 2019 findings of the International Bar Association that 47% and 13% respectively of women and men working in the law in Australia had experienced workplace sexual harassment. Jane Needham SC, former president of the New South Wales Bar Association, who had spoken publicly about her own experience of sexual harassment, and who claims that most women who leave the Bar in Australia do so because of because of the “toxic workplace culture”, told the Guardian that:

“There’s an unwillingness or an unfamiliarity with workplace sexual harassment being a significant issue and a significant barrier to women practising. Women, I think, have always gone ‘I just need to make it stop’. And unfortunately that usually means changing chambers, changing firms, giving back a brief, not working with that silk again. We’re the ones making accommodations and the feeling I have at the moment is everyone is completely jack of it.” It is worth asking to what extent this is true in England and Wales in which, according to the BSB’s 2016 Women at the Bar report, the exodus of women barristers began shortly after tenancy and had the effect that, whereas 48% of new tenants were women, only 31% of barristers at 15 years’ call were.