Fair instructions?

Scotland is an enlightened country. It has a female First Minister, who deliberately chose a cabinet with an equal gender balance as far back as 2014. It has a Law Society which puts on equality and diversity events, advertising a recent one entitled “Equality Means Business” as follows: “The business case for diversity is overwhelming. It is increasingly clear that a diverse workforce helps the bottom line and businesses that are open and accessible for all clients will thrive”.

The solicitors’ profession in Scotland has welcomed women to its ranks, where they number well over half of practising solicitors, and have done since at least 2015.(1)

But despite all this, Scotland is no different from many other referral bars around the world in that, when counsel are instructed, there is a problem of gender bias in favour of men. Just like in Australia, New Zealand, Ireland, South Africa(2) and England,(3) Scotland has serious equality and diversity issues to address.

This article is not written on behalf of the Faculty of Advocates, and the views in it are those of the author alone. It sets out figures from research carried out in May 2017. It then explains why this reveals a problem, and what can be done about it. Next it charts some of the important work done since the research was conducted. And finally, but most importantly, it appeals for help from people who instruct the bar to carry this work forward.

The figures

The lack of published statistics from the profession’s regulatory bodies on instructions and where they are going by gender suggests that instruction bias may be an under-recognised problem. But there is information which enables a comparison to be made between the percentage of women at the bar and the percentage of instructions they are actually getting.

Numbers at the Scots bar

At 1 May 2017, there were 440 practising members, of whom 119 were QCs and 321 junior counsel; 26 QCs and 95 juniors were women. In percentage terms, women accounted for 27.5% of the Scots bar, 21.8% of QCs and 29.6% of junior counsel; 5.9% of the Scots bar were female QCs and 21.6% of the Scots bar were junior women.

It’s worth noting that between 2004 and 2009 the overall percentage of women practising at the Scots bar went down from 23.2% to 22.7%. This had recovered to 27.5% by May 2017, and the overall trajectory is an increase in female membership since 1989. But the rate of growth is slow, and the percentage of women is much lower than in the solicitors’ profession. At the rate of change over the 10 years to May 2017, to get to gender balance of 50% would take another 70 years or so.

Where instructions go by gender

It is a reasonable assumption that where there is an absence of gender bias in instructions, instructions will be spread roughly according to percentage makeup of the bar by gender.

The spread of instructions by gender can be tested by looking at appearances recorded in judgments in the Court of Session for the four months between 4 January and 5 May 2017. The judgements set out who appeared, enabling analysis of counsel by gender.(4) Of 272 counsel instructed in decided cases in that period for whom the gender can be identified, 42 were women, which is 15.4% of counsel instructed. This is well under the 27.5% figure for female membership of the bar. In the Outer House the percentage was 14.9%, and in the Inner House 16.9%; for QCs it was 16.0% and for juniors,15.1%.

That is little more than half of what would have been expected if instructions were equitable according to gender. Both female QCs and juniors are affected by this pattern, although juniors to a greater extent.

That gender bias in instructions exists is also supported by an answer to a freedom of information request dated 27 April 2016. It showed that the Scottish ministers and Lord Advocate had, in civil cases in the Court of Session in the preceding two years, instructed QCs in 75 cases. Only nine of these (12%) were women. Women made up 21.8% of QCs at the Scots bar in May 2017. (It is understood that the Lord Advocate subsequently issued guidance about listing of counsel, to try to ensure both genders are represented more equitably, which has made a difference.)

Because criminal cases in the High Court of Justiciary are not reported in the same way as civil cases, it is not possible to perform the same exercise as for Court of Session cases. But the following evidence as to gender pay gap suggests that there is a problem there too.

The pay gap

Pay gaps on gender lines are not confined to the legal profession. There are a number of different measures for pay gaps, but to give some background context for the figures for the legal profession, the Office of National Statistics gave a headline figure of 9.1% for 2017 for the gender pay gap in the UK for full time workers;(5) the equivalent pay gap for Scotland alone was 6.2%.(6) Regulations requiring reporting of pay gaps came into force in 2017,(7) but the Law Society of Scotland had already taken a lead in this area, publishing pay gap figures for the solicitors' profession in 2015. It was, on average, 42%. The Scots bar is no exception to the general trend and has its own pay gap, in common with other referral bars.

The table below shows the gender gap in average fee income for the Faculty of Advocates for counsel of different levels of seniority for the year to April 2017. Although the gap in fee income may arise because women are paid less for the same work, another possible cause, which fits in with the statistics regarding instructions, is that female advocates have fewer instructions from which to earn.

The most unequally paid groups are female QCs taking silk after 2010, who receive about half what their male counterparts do; and junior counsel called before 2008, who receive about three quarters of what their male counterparts do. But there is a significant pay gap at all levels, the minimum being 21% and the maximum being 48%.(8)

This research about instruction bias and pay gap is based on a limited sample, but is consistent with the picture elsewhere in the world. What it shows is that male counsel are disproportionately instructed and remunerated in Scotland. This is not to say that it is wrong to instruct male counsel; an equitable briefing pattern would reflect the fact there are currently many more male counsel than female counsel. Women may also choose to do less work at the bar than some of their male counterparts for family or other reasons, resulting in them earning less. However, there is no room for a failure to instruct because of a perception that there are no women in a particular practice area, since the judgments analysed show women working across a wide range of practice areas.(9)

There is also no room for a bias towards male counsel just because of their gender. The uneven spread of instructions, and the pay gaps identified above, are too big to be accounted for by cases where there is justification to choose male counsel over female counsel.

Why is this a problem?

1. Ethical reasons

As the World Economic Forum put it, “Women are one-half of the world’s population and evidently deserve equal access to health, education, economic participation and earning potential, and political decision-making power” (p 26 of link).

2. Economic reasons

Again from the World Economic Forum document: “Notable recent estimates suggest that economic gender parity could add an additional US$240 billion to the GDP of the United Kingdom, US$1,201 billion to that of the United States, US$526 billion to Japan’s, and US$285 billion to the GDP of Germany. Another recent estimate suggests that China could see a US$2.5 trillion GDP increase by 2020, and North America and Oceania could gain an additional US$3.1 trillion over the same period if they closed their gender gaps”. There may also be commercial pressure on solicitors’ firms to address diversity where clients require this as a criterion for appointment, for example in tenders for legal services.

3. Legal reasons

The Equality Act 2010 outlaws discrimination. Many of its provisions are of general application. Section 19 (indirect discrimination) and s 48(6) (a person must not, when instructing an advocate, discriminate against that advocate by subjecting them to a detriment), and part 3 on services and public functions, are of relevance to the instruction of counsel. Public bodies listed in sched 19 to the Act, and other organisations exercising public functions (such as solicitors carrying out public sector work), are subject to the even stronger public sector equality duty in s 149. This requires these organisations in the exercise of their functions to have due regard to the need to eliminate discrimination and advance equality of opportunity. This explicitly includes removing disadvantages, and encouraging participation in activities where participation by persons with protected characteristics (such as sex) is disproportionately low. Given the Scots bar has a disproportionately low participation of women in instructions, the public sector equality duty perhaps suggests those covered by it should be encouraging women’s participation in work given to the bar. Where work involves public functions, or is for public bodies, it is hoped that those responsible are reviewing whether their policy on the instruction of counsel is consistent with s 149.

4. Professional standards reasons

It is one of the Law Society of Scotland’s standards for Scottish solicitors that they must act in their client’s best interests. It is in the best interests of clients to instruct the best representation when the client needs to go to court. Women have been outperforming men in exams for some time (examples here, here and here), and are being taken on as solicitors in Scotland in greater numbers than men. There is no basis for automatically assuming that a client’s interests are better served by male counsel.

5. Indirect consequences

Failure to instruct women advocates perpetuates gender imbalance at the bar, and is likely to have an adverse effect on the gender balance in the judiciary. For the bar to remain a centre of excellence, it requires to attract and retain talented lawyers of both genders. More women than men are being accepted for places to study law; two thirds of the most recent intake of law students are female. But the percentage of women at the bar remains 27.5%; the percentage of women at the bar has not grown uniformly over the 15 years to 2017 and actually shrank between 2004 and 2009; and 94 women have left the bar over the last 20 years, only 12 due to retirement: 68 have gone non-practising, and 14 have resigned. It is reasonable to assume that inequitable distribution of instructions and the pay gap have played their part in this. In the recruitment round after which two new Senators of the College of Justice were appointed in 2017, only one applicant in the whole process was a woman (JABS board minutes for 18 November 2016). Fewer instructions means fewer cases to show the experience required by the Judicial Appointments Board and Commission. This also applies to applications for silk. Only two out of the 14 successful applicants in the 2017 QC appointments were female counsel.

Why does instruction bias happen?

To tackle the problem of instruction bias, it is necessary to consider possible causes.

One is deliberate bias. Surprisingly, factfinding meetings in the last year revealed that some clients were still being advised by instructing agents that male counsel should be chosen over female counsel, because courts were likely to prefer males. It would be interesting to see the evidence for this contention, since direct discrimination on grounds of sex is unlawful, whether by clients, instructing agents or courts.

A second cause is unconscious bias. Both genders are subject to unconscious bias. As the ex-President of the UK Supreme Court, Lord Neuberger, has said: “The big problem, as it is everywhere, is with unconscious bias. I dare say that we all suffer from a degree of unconscious bias, and it can occur in all sorts of manifestations. It is almost by definition an unknown unknown, and therefore extraordinarily difficult to get rid of, or even to allow for. But we must, as I have said, do our best in that connection as in every other.”(11)

Examples of unconscious bias could be:

• A subconscious belief that female counsel are less able than male counsel. Unconscious bias towards men in positions of authority, as counsel often are, has been documented in other contexts. A study found that, in a gender mixed sample of 500 participants, fully 96% thought that the typical doctor is a man. The Economist recently reported Harvard research that both genders of doctor have a tendency to refer patients to male surgeons rather than female surgeons. Clients are more likely to recommend male solicitors for awards than female solicitors, even where the females are rated equally competent or better by the clients. All of these examples are notable for the absence of any evidence to support the veracity of the belief.
• A perception that aggression is desirable in litigation, and women are less aggressive than men. Those who have experienced female litigators might challenge the latter generalisation. But even if it is true that women are on average less aggressive, there is evidence that aggression does not get the best results in litigation.
• "Queen Bee" syndrome. This is where the first generation of women to get through don’t help the next (“If I did it despite discrimination, so should you”). In Scotland the solicitors’ profession is now predominantly female; but instructions to counsel are still disproportionately going to men. There is growing recognition that both genders need to recognise and challenge unconscious bias.

What can be done?

To reverse unconscious bias, a recent article on “debiasing”(12) suggests various steps:

1. People need to become aware of unconscious bias and how it might be operating.
2. They need to have insight, and an ability to interrogate their own thinking.
3. They need to be committed to enhancing or altering their thinking processes to debias.
4. Debiasing measures need to be used regularly so they become part of routine practice.

This might be simplified as an “AAR” approach to debiasing: become Aware, Alter behaviour, and Reinforce or repeat. First, there is a need to raise awareness amongst those involved in instructing counsel that there is an issue of discrimination in instructions. Those involved include solicitors, clients, advocates’ clerks, and counsel; all need to be aware. Next there is a need to put in measures to alter established behaviour. Ideas about possible measures to alter behaviour can be obtained by looking at other referral bars, which been introducing training, policies, monitoring and reporting. For example, in New Zealand there is a simple policy requiring people actively to identify female counsel and genuinely consider engaging them; regularly to monitor and review the engagement of female counsel; and periodically to report on the nature and rate of engagement of female counsel. In Australia and South Africa,(13) policies exist involving setting targets for the percentage of instructions which should go to women or other disadvantaged groups. In England there is a subconscious bias policy, and also guidance on discriminatory instructions.(14) Finally, once policies on equitable briefing are in place, there is a need to reinforce by using the policies each time counsel is instructed, together with monitoring and reporting.

In the Faculty of Advocates, over the last year a number of steps have been taken to address the problem, both internally and externally. The Dean wrote in the Scotsman on 22 May 2017 that, like other bars elsewhere, the Faculty would commit to a clear, transparent, equitable briefing policy, as would each individual stable. The Faculty’s Equality & Diversity Committee has since issued a guide on unconscious bias and positive action, based on similar guides from the English bar. Then, to alter behaviour, a fair instructions policy has been adopted by the Faculty. This has “teeth” owing to a computer system that monitors where unallocated instructions go; and each stable must now have an equality and diversity officer who reports on statistics to the Dean every six months. The Faculty’s chief executive is leading the Faculty’s response, including a training programme for clerks.

Other measures to further equality and diversity at the Scots bar are also underway. One is a photographic project by Victoria Young, so that images of a few female counsel are interspersed with the overwhelmingly male art on the walls of the Faculty and court buildings. Another is a voluntary levy on Faculty members to support additional scholarships for people coming to Faculty. This may help redress the “double whammy” for women coming to the bar from being solicitors, of loss of employed maternity rights, and the costs of devilling. A pilot “mini-devilling” scheme is also underway, so that lawyers of all genders can try out life at the bar as work experience.

Please help

But the view of the writer is that the most important steps that can be taken are external to the Faculty of Advocates. This is because the vast majority of instructions coming to the bar go to named counsel. In these, it is instructing agents and their clients who are instructing men disproportionately. And that is why this article finishes with an appeal for help.

There have now been a number of meetings between advocates and external bodies who instruct the bar. It has been enormously encouraging meeting with people who are so willing to assist: the Law Society’s Equality & Diversity Committee, public bodies, and others. There have been events and talks to raise awareness, at the 21st Century Bar conference, for International Women’s Day, and elsewhere. And also publications: in the Scotsman, in Scottish Legal News, and now in this Journal.

Various requests have been made in these meetings and talks to people who instruct the bar. First, please review your practices. Is there gender equality by numbers at the bar in your instructions, or, if not, is there a fair justification for this? Otherwise, please consider putting in place policies on instruction of the bar which require people to confront and address the issue of instruction bias by gender, and to monitor and report on it.

Secondly, when procuring legal services from solicitors, who then instruct the bar, please include in the tender requirements a commitment by the successful tenderer to equitable briefing. (There is a precedent for this in Scottish Government procurement of legal services from solicitors.) The Faculty has an “external facing” policy available on its website, which can be deployed to make this straightforward.

Thirdly, it is hoped that the Law Society of Scotland’s practice guidelines on instruction of counsel might in the future reflect a commitment to equitable briefing.

To echo the words of the Dean of Faculty in the Scotsman in May 2017, there is no single magical solution to the problem of inequitable briefing, but acknowledging and dealing with this difficult issue is better than brushing it under the carpet. Help from solicitors would be transformational in extending the work already being done to tackle this pressing equality issue.

References

(1) www.theguardian.com/uk-news/2015/dec/23/more-female-solicitors-than-men-scotland-law
(2) See also Michelle Norton SC, “Where are the Women?”, The Advocate, April 2017.
(3) See also the Bar Council Equality and Diversity Guides, Discriminatory Instructions: Guidance for Chambers.
(4) It was possible to do this for all counsel instructed other than five junior counsel out of 275, where the court gave only a surname and there are counsel of both genders with that surname, and it was not clear from the judgment which one had been instructed. Even on the unlikely assumption (given the rest of the statistics) that all five are female, that would give a figure of 17% for women of the 277 instructions in the sample, compared with a figure of 27.5% of women at the practising bar.
(5) Defined as difference in median gross hourly earnings (excluding overtime) for full time employees: see www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/articles/understandingthegenderpaygapintheuk/2018-01-17
(6) Scottish Legal News, 8 March 2018. This is based on ONS data for 2016.
(7) Equality Act 2010 (Gender Pay Gap Information) Regulations 2017; Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017.
(8) These pay gap figures are based on total fee income, rather than income per hour worked (these statistics are not available), so are not directly comparable with the figures from the Office for National Statistics.
(9) As well as criminal cases, the sample from the Court of Session showed women working in insolvency, breach of contract, public procurement, prison law, judicial review, family law, reparation, statutory appeals, social security, property, immigration, professional and clinical negligence, human rights, disclosure of information.
(10) Eg in tenders for central or local government work. Cf www.taylorroot.com/articles/blog/blp_latest_law_firm_to_set_female_partnership_target/
(11) D Neuberger, “Fairness in the courts: the best we can do”, address to the Criminal Justice Alliance, 2015, 18 (www.supremecourt.uk/docs/speech-150410.pdf).
(12) Dr Simon Ward, “Heuristics and cognitive biases, Part 2”, in SSCS Judicial Information Bulletin Issue 80, p 22, not publicly available. The suggestions he made were based on a survey by him of medical literature about cognitive bias.
(13) See also Michelle Norton SC, “Where are the Women?”, The Advocate, April 2017.
(14) Bar Council Equality and Diversity Guides, Discriminatory Instructions: Guidance for Chambers.