100 years in Law – Women in Silk

15 March 2019

As our Deputy Head of Chambers Nina Grahame QC took Silk this week, exactly 100 years have passed since The 1919 Sex Disqualification (Removal) Act which enabled women to pursue careers previously considered unsuitable for females. Although it was not until 1922 that two women were finally called to the Bar of England and Wales, a handful of women before them had made varying attempts to study and practise law. In 1913, a group of four women (Gwyneth Bebb, Karin Costelloe, Maud Ingram and Lucy Frances Nettlefold) applied to the Law Society in order to sit their preliminary examinations required to enable them to become solicitors. They were refused on the basis of their sex and so embarked upon a legal challenge to the Law Society’s decision. They lost at first instance and again at the Court of Appeal, but by then they had garnered some public support which they utilised in their campaign for change. The First World War and the Women’s Suffrage Movement resulted in increasing awareness of women’s rights generally, finally cemented by the 1919 Act which stated, “a person shall not be disqualified by sex or marriage from…entering or assuming or carrying on any civil profession or vocation, or admission to any incorporated society.”

The four women went on to become the first women to pass the Law Society Finals in 1922, the same year that Dr Ivy Williams was the first woman to be called to the Bar of England and Wales. Dr Williams never practised as a barrister and instead became the first woman to teach law at an English university. Helena Normanton was the first woman to be admitted to the Middle Temple as a student to the Bar. Her first application to do so had been unsuccessful, but she reapplied within 48 hours of the 1919 Act being passed. She was called to the Bar in November 1922 and became the first woman to practise at the Bar. Throughout her life, Helena Normanton was a campaigner for women’s rights and forged a successful career that included being the first woman to lead the Prosecution in a murder trial. As a result, she was the focus of much media attention which sadly led to charges of advertising, which she stringently denied. She requested that the Bar Council hold a full inquiry into the allegations of advertising, whilst also highlighting how some male barristers went about self-promotion.

Helena Normanton, together with Rose Heilbron, went on to become the first woman to take Silk as King’s Counsel. For almost all of us who embark upon careers at the Bar, taking Silk is what we aspire to, whether that is our only objective or whether that forms part of a career pathway that ultimately leads to judicial appointment. Taking Silk is rightly seen as acknowledgment of being a leader in one’s field, a mark of excellence, hard work and dedication. Yet female QCs remain wholly outnumbered. Despite the passage of 100 years and the work of the pioneers mentioned above, along with many others, it remains the case that the echelons of the independent Bar are not representative of gender within the general population. In 2016, it was observed that if the Bar Standards Board (BSB) Diversity Report figures were projected, it would take a further 50 years for full equality and representation to be achieved. One can only speculate as to how those early pioneers would react to such figures.

The BSB Diversity Report 2018 shows that the profession is still a long way from retaining the broadly representative numbers at entry level. The proportion of women at the Bar (pupils, practising Queen’s Counsel and non-QC barristers) had increased by 0.5% from December 2016 to December 2017. As of December 2017, women constituted 37.0% of the practising Bar. The latest figures available showed that there were a greater proportion of female pupils in comparison to male pupils (51.7% vs 48.3%). The percentage of women at the Bar across all levels of seniority increased from December 2016 to December 2017. The greatest increase has been for QCs (13.7% to 14.8%; a difference of 1.1pp), however, the overall proportion of female QCs is low at just 14.8%. There has been and there continues to be much debate regarding retention of women as they move through the profession. There can be little doubt that many exceptionally able women choose either to leave independent practice altogether or to reduce their practices in order to accommodate family life and caring responsibilities, thus reducing their chances of ever attaining Silk. Employed practice or academia can be an attractive proposition in terms of regularity of hours, work demands and regularity of income.

The Association Of Women Barristers was founded in 1991 in order to monitor and represent the interests of women at the English Bar. The Association has acknowledged that while men and women are now attaining parity in respect of pupillage and tenancy,  “the retention rate after 5 years, or, worse, after 10, is an entirely different story.” As time marches on, it appears that increasing numbers of women leave the independent Bar. Some of the problems that the Association has identified include: “return to Chambers after maternity leave or other career break which remains a significant hurdle to clear for many; the concentration of women barristers in crime and family law which means they are disproportionately vulnerable to public funding cuts; statistics on judicial appointments which show a steadily rising percentage of women’s participation but which is largely confined to the lower judiciary; the representation of women in the annual silks list from which the higher judiciary come, which has (it is true) increased since silk appointments were resumed, nevertheless mask the fact that there is still only one woman in the Supreme Court (our former President, Baroness Hale of Richmond) and that there is still only a small select group of women Lords Justice in the Court of Appeal.”

Wellbeing is now widely recognised as an issue for all at the independent Bar. It is arguable that it is particularly pertinent for women at the Bar, whose caring responsibilities are disproportionately high as compared to male colleagues. This is reflective of the general population, but at the independent Bar, there is little flexibility with late service of evidence and skeleton arguments requiring urgent responses, often after hours and following long days in court leaving little time for family life, be that with children or with elderly parents. Additionally, for those who work in publicly funded areas such as Family Law or Criminal Law, the well documented swingeing cuts to Legal Aid have resulted in loss of income to all. This in turn has resulted in the true cost of childcare, costing individuals a larger percentage of net income. Days out of court aren’t remunerated, meaning that time off for caring responsibilities for elderly parents, sick partners or the like results in further loss of income, this in circumstances where publicly funded fees have substantially reduced. A profession that requires intellectual skill, that demands significant chunks of personal time and which often fails to pay the bills does not make for positive wellbeing. Little wonder then that many women barristers opt for employed practice with regular and flexible working hours, holiday and sick pay plus a pension. Or to the Bench, for the same reasons.

While these are equally valuable roles, the net result is depletion of the pool of experienced, able women who ought to be applying for Silk. Furthermore, it depletes the pool of those from which are drawn the majority of the high judicial offices. Until working hours, wellbeing and pay are properly addressed, it will be a slow struggle to achieve a truly representative senior Independent Bar. But there is cause for cautious optimism. The concerns of female practitioners are being aired and they are being listened to. Recently, the Lord Chief Justice acknowledged that where incidents of sexism in the form of judicial bullying have occurred, this needs to be addressed. It appears that attitudes are changing. In his speech to this year’s Silks, the Justice Secretary acknowledged the importance of diversity at the independent Bar. Whilst unlikely to solve all the difficulties in retention, a more positive working environment is likely to encourage women to remain within this wonderful profession. Women such as Nina Grahame QC and the other 29 women who make up 28% of the Silks appointed this year make a significant contribution to a positive working environment. They do so through their support and guidance to all members of the Bar, both male and female. Long may that continue.