Fair instructions?

Scotland is an enlightened country. It has a female First Minister, who chose a cabinet with an equal gender balance. Its Law Society puts on equality and diversity events. The solicitors’ profession has welcomed women, who number over half of practising solicitors.

This article draws on research carried out in May 2017 which reveals the problem, and discusses what can be done about it. Next it charts some important work since this research came to light. Finally, it appeals for help from people who instruct the bar to carry this work forward. This article is not written on behalf of the Faculty of Advocates, and the views in it are those of the author alone.

The figures

A lack of published statistics from the regulatory bodies suggests that instruction bias may be an under-recognised problem. But there is information which enables a comparison between the percentage of women at the bar and the instructions they are actually getting.

At 1 May 2017, there were 440 practising members of Faculty, of whom 119 were QCs and 321 junior counsel; 26 QCs (21.8%) and 95 juniors (29.6%) were women, or 27.5% overall. It’s worth noting that between 2004 and 2009 the last figure went down from 23.2% to 22.7%. This has since recovered, and the overall trajectory since 1989 is rising. But growth is slow compared with the solicitors’ profession, and at the rate of change over the decade to May 2017 it would take another 70 years to get to 50% women.

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

The spread of instructions by gender can be tested by looking at appearances recorded in Court of Session judgments for the four months between 4 January and 5 May 2017. Of 272 counsel so recorded whose gender can be identified, 42 were women, or 15.4% of counsel instructed, well under the 27.5% female membership of the bar. In the Outer House the percentage was 14.9%, 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, although juniors to a greater extent.

That gender bias exists is 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 (12%) were women. (It is understood that the Lord Advocate subsequently issued guidance about listing of counsel, to try to ensure a more equitable balance, which has made a difference.)

The pay gap

Criminal cases in the High Court are not reported in the same way, but the following evidence as to gender pay gap suggests there is a problem there too.

There are a number of different measures for pay gaps, but the Office of National Statistics gave a headline figure of 9.1% for 2017 for the UK gender pay gap for full time workers. The figure for Scotland alone was 6.2%. Regulations requiring reporting of pay gaps came into force in 2017, but figures published by the Law Society of Scotland in 2015 showed an average pay gap of 42% within the solicitors’ profession. Like other referral bars, the Scots bar is no exception in having a gender pay gap.

The table below shows the gender gap in average fee income for advocates of different levels of seniority for the year to April 2017. Although a gap may arise because women are paid less for the same work, another possible cause 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. But there is a significant gap at all levels, the minimum being 21% and the maximum 48%.

This research is based on a limited sample, but is consistent with the picture elsewhere in the world. It shows that male counsel are disproportionately instructed and remunerated in Scotland. It is true that an equitable briefing pattern would reflect the fact there are currently many more male counsel. Women may also choose to do less work at the bar for family or other reasons. However, there is no room for a failure to instruct because of a perception that there are no women in a particular practice area: the judgments analysed show women working in a wide range of areas. There is also no room for a bias towards male counsel just because of their gender. The divergences in instructions, and pay, are too big to be accounted for by cases where gender preference is justified.

Why is this a problem?

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”.

Economic reasons. Again from the World Economic Forum: “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.” There may also be commercial pressure on solicitors’ firms to address diversity where clients require this, for example in tenders for legal services.

Legal reasons. The Equality Act 2010 outlaws discrimination. Sections 19 (indirect discrimination) and 48(6) (no subjecting to detriment on instructions), and part 3 on services and public functions, are of relevance to the instruction of counsel. Public bodies listed in sched 19, and others such as solicitors carrying out public sector work, are subject to the even stronger public sector equality duty in s 149, to have due regard to the need to eliminate discrimination and advance equality of opportunity. It is hoped that those responsible are reviewing whether their policy on instructing counsel is consistent with s 149.

Professional standards reasons. It is one of the Society’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, and are being taken on as solicitors in Scotland in greater numbers than men. 

Indirect consequences. Failure to instruct women advocates perpetuates gender imbalance at the bar, and is likely to have an adverse effect on 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. But 94 women have left the bar over the last 20 years, only 12 due to retirement (68 became non-practising; 14 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 for two senators in 2017, only one applicant was a woman. Fewer instructions means fewer cases to show the experience required by the Judicial Appointments Board. This also applies to applications for silk: only two out of 14 successful applicants in 2017 were female.

Why does instruction bias happen?

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

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

A second cause is 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.”

Examples of unconscious bias could be:

• A subconscious belief that female counsel are less able than male counsel. This type of subconscious belief is well documented in other contexts. 
• A perception that aggression is desirable in litigation, and women are less aggressive. Those who have experienced female litigators might challenge the latter generalisation. But in any event there is evidence that aggression does not get the best results in litigation.
•  “Queen bee” syndrome. This is where the first generation of women don’t help the next (“If I did it despite discrimination, so should you”). With the solicitors’ profession in Scotland now predominantly female, there is growing recognition that both genders need to recognise and challenge unconscious bias.

What can be done?

Recent writing suggests various steps to reverse unconscious bias: 

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

This might be simplified for present purposes as an “AAR” approach: become Aware, Alter behaviour, and Reinforce or repeat. The approach suggests that to tackle the issue of instruction bias, there is first a need to raise awareness of the problem amongst all involved in instructing counsel, including solicitors, clients, advocates’ clerks, and counsel. Next there is a need for measures to alter established behaviour. For example, in New Zealand there is a simple policy requiring people actively to identify female counsel and genuinely consider engaging them, with regular monitoring and reviews. In Australia and South Africa, 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. Once policies are in place, there must be monitoring and reporting, to reinforce.

In the Faculty of Advocates, over the last year a number of steps have been taken to address the problem, both internally and externally. Following a public commitment by the Dean in May 2017, its Equality & Diversity Committee has issued a guide on unconscious bias and positive action, based on similar English guides. A fair instructions policy has also been adopted. This has “teeth” owing to a computer system, which will monitor where unallocated instructions go; and each stable must now have an equality and diversity officer who reports statistics to the Dean every six months. There is a training programme for clerks.

Other measures include a photographic project by Victoria Young, advocate, so that images of a few female counsel (including that of the author) are interspersed with the overwhelmingly male art in Faculty. Another is a voluntary levy on members to support additional scholarships for people coming to Faculty. This may help to redress the “double whammy” for women former solicitors, of loss of employed maternity rights, and the costs of devilling. A pilot mini-devilling scheme allows work experience at the bar to lawyers of all genders.

Please help

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

There have been a number of meetings between advocates and external bodies who instruct the bar. It has been enormously encouraging meeting people who are so willing to assist: the Law Society of Scotland’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 publications, now including this Journal.

Various requests are being made to people who instruct the bar. First, please review your practices. Are you instructing equitably? And if you are instructing a disproportionate number of male counsel, is there a fair justification for this? Please consider putting in place policies which require people to confront and address the issue of gender bias in instructions, 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 to equitable briefing. (There is a precedent in Scottish Government procurement of legal services from solicitors.) The Faculty has an “external facing” policy on its website, which can be deployed to make this straightforward.

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

To echo the words of the Dean 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.