Written evidence from Themis: The Intersectional

Women Barristers’ Alliance

 

  1. Introduction and Summary

1.1  Themis: The Intersectional Women Barristers’ Alliance (“Themis”) is a newly-established non-profit members’ organisation, with the aim of being an active and inclusive organisation for women at, or seeking to join, the Bar in the United Kingdom. 

 

1.2  Our values are equality and diversity; intersectionality and inclusivity; community and collaboration; dynamism; and respect.  Reflecting these values, our mission is to:

 

 

1.3  Themis was officially launched on 18 September 2020 (the inaugural United Nations Equal Pay Day) and has a small number of members at this stage.  Themis is presently led by a voluntary steering group but we are in the process of expanding our membership base and hope to conduct full Executive Committee elections before the end of 2020.

 

1.4  In light of our values and mission, this submission will seek to highlight the significance of legal aid to women barristers – in particular, those from groups traditionally underrepresented at the Barand to women requiring legal aid to obtain access to justice.

 

  1. Women Barristers in the Legal Aid Sector

2.1  There is an unfortunate lack of information about who works in the legal aid sector.  We were informed during our research for this submission that the Bar Council does not ordinarily collect information on practitioners’ source of funding at present; however, there are plans to do so in the near future, and Themis welcomes thisNonetheless, the Bar Council did collect statistics with respect to legal aid practitioners during its two recent surveys on the effects on the Bar of the current COVID-19 pandemic.[1] 

 

2.2  Although the surveys were far from universally answered, the information drawn from them is nonetheless revealing. According to the April summary, “Black, Asian and Minority Ethnic (BAME) and state-educated barristers are… more likely… to be in publicly funded work. In particular, “55% of BAME barristers earn more than half their income from legal aid work, as compared to 47% of white barristers”. 

 

2.3  Meanwhile, the July summary identified “publicly funded barristers” as “the most diverse part of the Bar”, as [w]omen, state-educated, and  BAME barristers are  more likely to work in publicly funded areas of law”.  Crucially, the July summary concluded that “Diversity and social mobility are likely to decline at the Bar [in consequence of the pandemic] unless deliberate, preventative measures are implemented. BAME, women and state-educated barristers are triply hit they are more likely to (i) be in publicly funded work (ii) face greater financial pressures and (iii) be primary carers for young children”.

 

2.4  The most prominent difficulty caused by the COVID-19 pandemic that these surveys highlighted was the loss of income to practitioners.  Obviously, a reduction in legal aid fee levels or increased restrictions on the work for which legal aid is available will have the same effect. The present pandemic shows that such income reductions will place a significant proportion of the Bar – and most problematically, many of its most diverse members – at risk of having to leave the profession in order to survive financially

 

2.5  The Bar Council’s conclusions regarding the characteristics of those working in the legal aid sector are also confirmed by a 2018 report of the Young Legal Aid Lawyers entitled Social Mobility in a Time of Austerity (“YLAL Report”).[2]  The YLAL Report examined those working in the legal aid sector generally; 12.5% of respondents were barristers (many others were students, as well as being solicitors, paralegals and non-legal employees). Of the survey’s 200 respondents, 78% were female, 21.5% male and 0.5% non-binary/third gender; 63% described themselves as white British, 10% as white and not British, 7% as mixed, and the remaining 20% as a variety of ethnicities and nationalities; and 13% had a disability.  The YLAL Report notes that:

 

At the last census, 86 per cent of the population of England and Wales was White British. These results may suggest that, proportionally, representation in the legal aid sector, by ethnicity, is more diverse than within the wider population.[3]

 

2.6  Similarly, it bears noting that as at the last census date, women and girls made up 51% of the population of England and Wales, and men and boys made up 49%”.[4]  Evidently, women are also overrepresented in the legal aid sector, and there is undoubtedly overlap between ethnic and gender diversity.

 

2.7  This submission does not propose to examine the reasons why women and BAME barristers are more likely to practise in publicly-funded areas. For present purposes, what matters is the fact that they are, and so will consequently be disproportionately affected by any reduction in legal aid funding.  There have been significant and necessary gains in diversity at the Bar in recent times; those gains must not be lost if the Bar is to retain relevance to the society it serves.

 

  1. Women Accessing Legal Aid

3.1  While statistics on those providing legal aid services is not easy to come by, data on those accessing them is systematically collected and then reported on a quarterly basis via the Ministry of Justice.[5]  The latest quarterly report, for April to June 2020, sets out client diversity proportions over time from the 2015-16 financial year to the 2019/20 financial year.  In terms of civil legal aid, the relative gender proportions have remained largely stable over the period, with approximately 60% of recipients for civil representation being female and the remainder male.[6] With respect to ethnicity, around 60-62% were white, 13-15% BAME, and the remainder “UnknownPersons with disability represented 12-13% of those obtaining civil legal aid representation.

 

3.2  On the other hand, in the criminal sphere, men consistently represented approximately 84-86% of lower and higher crime grants, with 16-18% of recipients categorised as BAME and 57-63% white.  Even were the “Unknown” remainder all white, this would still constitute disproportionate representation of non-white persons among those in the criminal justice system requiring legal aid.[7]   At the higher crime level, 25-28% of legal aid recipients had a disability.

 

3.3  It is clear that the primary need for access to legal aid for women is in the civil, rather than criminal, sector.  It may be thought that civil matters are in some ways less pressing than criminal matters.  However, that is not the case: civil matters run the gamut of family proceedings (including issues of custody, monetary settlements which might otherwise leave stay-at-home parents in financial peril, and care proceedings), employment law, immigration, small business matters, judicial review and human rights claims, and many others beside. 

 

3.4  It is of course fundamental that the individual be protected from any unjustified exercise of the State’s coercive power in criminal proceedings, but that does not make litigation between individuals, or indeed between the individual and the State, any less significant in terms of the personal impactThis point should not be taken as an argument for reductions in criminal legal aid to bolster civil funding; that would be a likely death sentence for the criminal legal aid sector, with all that that means for defendants’ fair trial rights.  Rather, we submit that all aspects of the legal aid system ought to be funded to a degree that enables access to all who need it, regardless of the areas of law their cases entail.

 

  1. Recruitment and Retention among Legal Aid Professionals

4.1  In this respect, we would also refer to the YLAL Report (above), Finding Three of which was that “Stress, lack of support and juggling legal aid work with other responsibilities are affecting retention in the profession”. Self-evidently, if one must work longer hours to earn a living income, the time available to meet external responsibilities and engage in other activities is of course reduced, with the concomitant impacts on wellbeing. 

 

4.2  The legal profession as a whole is now much more aware of the need to protect and support practitioners’ mental health.  However, the amount of work to be done on a legal aid fee (by way of example, £50 for a first appearance, £75 for a half-day trial, and £150 for a full-day trial in the magistrates’ court – inclusive of all time spent in conference, preparing, in court hearings and writing attendance notes) places enormous pressure on junior practitioners in particular.  The risk of burn-out is therefore high.

 

4.3  The increases in university tuition fees in recent years, the commercial rates charged for mandatory practice courses, in combination with highly publicised cuts to public funding, would seem likely to make a career at the Bar in a legal aid-dependent field extremely unattractive to those entering the profession. Again, the Bar Council’s surveys during the pandemic are revealing as to fragile nature of a legally-aided practice.  In July, it was reported that:

 

“-               49% of those doing mainly publicly funded work are already suffering financial hardship and a further 41% expect to.

-          29%of publicly funded barristers are uncertain whether they’ll renew their practising certificate next year and 36% of immigration practitioners are uncertain.

-          Only 20%think they will still be practising from their current chambers in a year.

 

4.4  This is a dire prognosis for the publicly-funded Bar.  Of course, these impacts will likely be more greatly felt by those from less-advantaged backgrounds. 

 

4.5  It is also to be noted that “[m]any women who are pregnant or are on parental leave or have just returned to work from it, expressed very serious concern about their ability to remain in the profession, due to the downturn in their work and income”.  Thus, if legal aid work or fees are further reduced, a decline in the number of women at the Bar, and particularly those in the earlier stages of their careers, is to be envisaged.  This would be a vast step backwards for the profession and for society as a whole, which should not be countenanced.

 

  1. Effects of COVID-19 on Legal Aid Services and Clients

5.1  We would refer here also to the Bar Council’s surveys and their summary results published in April and July 2020, cited in section 2 above.  They are pellucid as to the impact of COVID-19 on the Bar generally, legal aid practitioners in particular, and most specifically those who are face greatest vulnerability.

 

  1. Future Challenges and Reforms, and Lessons to be Learned from Elsewhere

6.1  Themis’ key concerns for the future of legal aid, as the foregoing may suggest, are ensuring that funding remains available to all who need it, and that legal aid work is both available to and capable of financially supporting all barristers, in particular women and those from backgrounds typically underrepresented at the Bar.

 

6.2  In terms of supporting access to justice, we would not endorse proposals to extend support, financial or otherwise, for self-representation by litigants in person.[8] It is plainly right that those who choose to represent themselves should be supported to ensure that proceedings are fair.  However, such a choice must be a genuine one, not simply the consequence of an inability to access appropriate professional representation.  Moreover, where one party is legally represented and the other is not, it is often difficult to redress imbalances while still maintaining the adversarial processThe same is true where there is a difficult personal relationship between the litigants.  The purpose of the adversarial process is not to pitch antagonistic legal battles, but to properly test each party’s case and the evidence, in order that the just and correct outcome be reached.  The proper role of lawyers is to provide sound and independent assistance to that end, to the courts as well as their clients.

 

6.3  We would, however, recommend the support of advisory services.  In Australia, for example, community legal centres provide free and often specialist legal advice to vulnerable and/or disadvantaged individuals. Access to high-quality legal advice outside court at an early stage can divert individuals away from unnecessary pursuit of litigation, including by redirecting them to appropriate social services, or steer them toward the most appropriate source of legal representation. Some community legal centres also offer legal representation themselves. Specialist centres have the added benefit of developing an understanding of the needs of their particular client group (for example, senior citizens, children and young people, women, or Indigenous people).

 

6.4  Community legal centres are particularly likely to be of assistance to women, who represent the greater proportion of those seeking civil legal aid where these services are most likely to be appropriate and necessary. The existing LawWorks network that operates in some parts of the UK is an invaluable start, but it cannot presently meet the needs of all who seek assistance.

 

6.5  Understandably, maintaining or expanding access to legal aid in straitened economic circumstances requires thought as to how these funds will be obtained.  In Queensland, Australia, an initiative used to fund community legal centres and legal aid was the Legal Practitioner Interest on Trust Accounts Fund (LPITAF).  Pursuant to a statutory scheme, the LPITAF received payments of interest accrued on trust accounts kept by solicitors and other prescribed accounts, which could then be paid out, inter alia, to the state’s legal aid agency or pursuant to a Ministerial grant for the purpose of “facilitating access to the legal system, legal information and education and legal services for members of the community, particularly economically or socially disadvantaged members of the community.[9]  The mechanism remains in place, albeit that it now provides a smaller proportion of overall monies allocated and operates through the government’s consolidated fund rather than a distinct fund.  Arguably this represents a socially useful means of re-allocating the accrued benefits of holding client monies, although Themis has not examined how this would work within the UK’s regulatory environment.

 

6.6  It is also worth noting that the United Nations Development Programme and the United Nations Office on Drugs and Crime in 2016 published their Global Study on Legal Aid: Global Report.[10]  This report “present[s] a global picture of the situation of legal aid”, as well as highlight[ing] specific challenges and priority areas in various aspects of legal aid delivery” and identifying “innovative approaches and lessons learned on delivering legal aid services”.[11]  It may therefore be a useful aid to developing new, sustainable, and equitable ways of sourcing and providing access to legal aid funding.

 

6.7  It is also worth noting the Global Report’s comments that “[s]pecialized services, such as those for children and women, can help ensure that services provided are tailored to the specific needs of target groups, while “legal aid is particularly critical in ensuring equal access to justice for women”.[12] The CEDAW Committee’s General Recommendation 33 on Women’s Access to Justice further underscores this point.  Policymakers should take into account that it may be particularly important for women seeking legal aid to have that advice and assistance provided by other women, especially if there may be issues of gender-based violence.  This may make it necessary to provide greater support to women-only services across the country.  Further, where socio-cultural factors may affect communication, it is important that clients feel their lawyers can understand their point of view.  This is another reason to ensure that the developing diversity within the legal profession is maintained and built upon, not eroded.

 

  1. Conclusions

7.1  In considering the future of legal aid, Themis would moreover urge policy-makers to ensure that funding across all sectors is adequate to meet the needs of every individual that genuinely requires it.  By adequate, we do not mean sufficient scraping by; we mean enough to permit cases to be run in an efficient, diligent and proper manner, for clients to therefore have access to real justice, and for barristers to feel that society places worth on the work that they do for its most vulnerable members.  Nor do we support placing greater means or merits restrictions on availability of funding – to do so simply creates a false economy.  What is required is commitment to the ideal form of the once-lauded British justice system, and innovation to ensure funding sources are sustainable.

 

7.2  A justice system can only function – and truly offer justice – where it is seen as worth the investment and resourced accordingly.  The resources within such a system include the individuals working in it, who deserve to be able to access the career that they have chosen regardless of their personal characteristics and to earn a living income while doing so.  To be clear: the law and the civil and criminal justice systems underpin the whole of society in all its aspects.  A functioning justice system is not a luxury – it is absolutely criticalWe urge policy-makers to consider the impact of any further cuts on recent gains in the Bar’s diversity and the consequent detriment to broader society if those gains are once more lost.

 

7.3  Poignantly, 2019 was the 100th year of women in law in the United Kingdom. This was a landmark; but it ought not to be the pinnacle, if we truly value justice for all.

 

 

November 2020

 

 

             

 

 


[1] The two surveys sent to all barristers in England and Wales were conducted in April and July 2020.  The first was completed by 25% of recipients; it is not clear how many responded to the second.  The summary findings of each are respectively available here and here.

[2] Available at http://www.younglegalaidlawyers.org/sites/default/files/Soc%20Mob%20Report%20-%20edited.pdf

[3] YLAL Report at 22; internal citations omitted.

[4] See https://www.ethnicity-facts-figures.service.gov.uk/uk-population-by-ethnicity/demographics/male-and-female-populations/latest.  Although the last census was in 2011, it is presumed that there has not been any significant shift in the relative numbers of females to males.  The question posed in the census appears to have offered only the binary answer of male or female to the question of the respondent’s sex: see https://www.ons.gov.uk/file?uri=/census/2011census/2011censusdata/2011censususerguide/variablesandclassifications/vcipart3standardvariablesv1604january2018003.pdf at 27-28.

[5] See https://www.gov.uk/government/collections/legal-aid-statistics.

[6] In the first two years reported, the female figure was 58% and 59% respectively, with 1% “Unknown”.

[7] For further discussion of overrepresentation of BAME people in the criminal justice system, see the final report of the Lammy Review: https://www.gov.uk/government/publications/lammy-review-final-report.

[8] As proposed at https://www.gov.uk/government/news/more-support-for-those-representing-themselves-in-court.

[9] See Legal Profession Act 2007 (Qld), ss.288-289.

[10] See https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/Global_Study_on_Legal_Aid_-_FINAL.pdf.

[11] Ibid, III.

[12] Ibid, 3, 7.