In the year that Lady Hale was appointed as our first female President of the Supreme Court, the Ministry of Justice (‘MOJ’) simultaneously tried to introduce one of the most regressive and discriminatory policies of recent years, the Flexible Operating Hours (‘FOH’) pilot. The juxtaposition could not have been more stark. We have waited centuries to see a woman, and one the greatest lawyers of our generation, reach the very top of the legal profession. As soon as she does, the MOJ try to close the gate behind her.
Garden Court Crime Team joined with many professional representatives, including the Bar Council, Criminal Bar Association, Criminal Law Solicitors Association and London Criminal Courts Solicitors Association to oppose FOH. www.gardencourtchambers.co.uk/open-letter-to-lord-justice-…/
The pilot was postponed for ‘review’ on 21st September. HMCTS say that it will resume in spring of next year, much improved and having taken account of the ‘constructive criticism’. Personally I hope it will be consigned to the dustbin.
FLEXIBLE OPERATING HOURS – WHERE DID IT ALL GO WRONG?
The question is not one of recrimination, but of what went wrong. Why was the Government so out of step with the efforts made by the professions to support and propel our women into the premier league?
Advancing women’s careers, within all facets of the criminal justice system, is accepted by all of the main political parties as a public good. To that extent, feminist politics has succeeded in influencing the political discourse for women criminal justice workers. Setting aside, for the sake of the brevity of this article, the sexism which then blights many of those careers, what we lack in the political sphere is the integration of feminist principle into the policy making that affects the criminal courts, as a workplace.
The entreaties of various Conservative Lord Chancellors in recent years, for the professions and judiciary to ‘do more’ to move women into senior positions rings hollow, when the policies that influence the pool from which our talent is drawn are sexist ones. FOH was, and if HMCTS persevere with it, will remain, a prime example of the determination of this Government to do the opposite of what it preaches.
FEMINIST PRINCIPLES AND POLICY MAKING
The criminal court, analysed as a workplace, is complex. The fairness of trials, treatment of complainants and efficient use of resources must, and do, take centre stage. But if it our commitment to gender equality is to amount to more than fine words, that commitment must be at the heart of policy too. FOH fell at that hurdle.
What was interesting about the FOH debacle, is that it demonstrated just how far the criminal bar has come. Male barrister spoke with ease about the unwelcome ‘gender impact’ of the proposals. In robing rooms up and down the country, the criminal bar got it, and acted as one. Extended sitting hours, for extended is what ‘flexible’ turned out to mean, are simply incompatible with retaining women (who remain the primary carers of small children) at the criminal bar, for long enough to see sufficient of us in number through to senior positions.
This is not because we are work shy; unable, like our medical brethren for example, to ‘put in the hours.’ A point well made by a male colleague at another set, married to a female hospital consultant, and parenting two young children. He explained to me that he too could do round the clock shifts at unsocial hours and still organise childcare that complemented his job, if, like his wife, his shifts were set months in advance, with defined start and end times, at a known location.
As a criminal practitioner, nothing is set in stone. Trials run over, go short, we move courts, sometimes on a daily basis. We do not clock in, then clock out. Our work starts when it starts, and ends when it ends. Our job has many benefits, highs, and satisfactions; but defined working hours are not one of them. Sitting hours are the only stability in our working day and even those are not always certain; early starts and late finishes are nothing new. But extended hours, from early morning, into early evening, is another matter altogether. Sitting hours are not our working hours. And our working hours are, like many jobs, both excessive and unsocial.
THE WORK WE DO
The issue stems from the immutable nature of the work that we do. Trials are not, and never will be, predictable, they do not always start and end ‘on time’. Missing holidays, social and family engagements; working across weekends and evenings; early hours of the night spent sitting quietly at a desk, mastering the next brief; this is the silent workload of the average criminal barrister. It is into this abyss of work that the FOH proposals encroach. It is perhaps a shame that the men of the criminal bar do not yet feel sufficiently empowered in sufficient numbers to simply lay down their wigs and say enough is enough: our present working conditions are not fit for human consumption; albeit good for those that do, and we welcome them as honorary sisters to the cause. But for women just returning to practice, and carrying the bulk of the caring responsibility, extended sitting hours in addition to the present workload amounted, in all intents and purposes, to a bar to the criminal bar.
Save for those who, understandably, find live in 24 hour childcare to be the only practical solution (and let’s face it, our most junior juniors are not on incomes that stretch to ‘live in nannies’ or ‘au pairs’), most women barristers (and men) with children, now rely on the same childcare provision as the ‘outside world’; nurseries, childminders, an army of unpaid family care, breakfast clubs, after school clubs and day nannies. And that child care comes primarily within ordinary working hours, of 8am – 6pm.
It is perhaps an oddity of a job which, on any sensible analysis, should fit within an approximation of those hours, that from a pupil barristers first day on her feet, we teach her that evening and night time work is, and will remain, the norm for the duration of her working life. That said, and perhaps because we are hardened to working late and starting early, court sitting hours do lend themselves to a ‘flexible working life.’ Factoring in commuting time across our various circuits, an ordinary sitting day of 10-4.30pm, with conference time before and after, allows most parents to get children to their childcare establishment, and home again in the evening, without completely abandoning parenting duties between Monday morning and Friday evening (save for the early mornings and late evenings spent attending further client conferences and chambers meetings). This ‘flexible operating system’ has worked, for increasing numbers of women, for many decades. Bedtime routine with baby and then burning the midnight oil is a familiar routine for any parent practising at the criminal bar. Women were routinely left with a stark choice in the not too distant past, the bar or children; not both. That we now do both is progress indeed. The Bar Council get this, and under Andrew Langdon’s superb leadership introduced the ‘Bar Council Protocol for Sitting Hours’ earlier this year, encouraging all courts and tribunals to sit only within ‘ordinary sitting hours’. www.barcouncil.org.uk/…/…/sitting_hours_protocol_-_final.pdf
WHAT CAN FEMINISM DO FOR YOU?
It is consequently a feminist issue, when our self employed status, which on paper lends itself well to combining work and life commitments, in practise too often fails to deliver. Why?
Women join the criminal bar in equal numbers to men, and leave in equal numbers to men in the early years due to the work and financial pressures, which are brutal. But for those that come through that baptism of fire, there is a sea change after pregnancy, when we regularly and routinely sacrifice some of our brightest and best women, but less so men, because the cost of trying to continue on in practice with young children becomes too great. In years gone by the profession would have smiled sympathetically and waved good bye, with platitudes about the criminal bar ‘not being for everyone’ (women). But times have changed. The bar is not leaving women behind. Women are leaving us behind. These women don’t go back to the kitchen. They go into other highly paid areas of work, with working conditions that make for an easier life. We haemorrhage talent to other sectors, which then have the benefit of highly skilled lawyers that we, the criminal bar, paid to train. Commercially, it makes no sense. Similarly, we cannot afford to become any more divorced from the community that we represent. Society will not continue to tolerate predominantly male clubs, subsidised, through legal aid, by the taxpayer. The same points carry equal force in relation to race and on many other fronts. The criminal bar remains too white, too upper class and too male. To do justice, we have to do better.
The starting point for policy reform, from a feminist perspective, isn’t rocket science. Two major concerns influence the decision making of a young women wondering whether or not to persevere at the criminal bar in the early years: money, and working conditions.
MONEY, MONEY, MONEY
We pay our most junior juniors too little. The payment scheme is weighted heavily in favour of those at the top. When the response to the AGFS consultation is announced, due imminently, we can but hope that the many representations made about this, including by my own crime team, Garden Court, have born fruit.
The fees paid to barristers working in the magistrates, and in the early years of practice in the crown court, are unsustainable. It has resulted in a recruitment issue. It damages morale. But more than that, it is a gendered issue. The present fees scheme is a sexist one, based on a male model of the working life that long ago fell away. We are no longer a tribe of men working without career breaks, supported by unpaid domestic workers (wives). Women need to reach a financially sustainable level of income, at an relatively early stage in their career, to be able to afford to have children and continue on at the criminal bar. Our self employed status does not come with the cushion of paid maternity or paternity leave, flexible working on return, or even the certainty of a brief to come back to. We have to increase income at an earlier stage in the career cycle, if we want to retain women beyond pregnancy in equal numbers to men.
WARNED LISTS AND GOING DIGITAL – A GENDER ANALYSIS
Of all of the difficulties of our working lives, it is warned lists that are most obviously a gendered issue. The warned list system results in a total absence of certainty about working hours and income. It is wholly incompatible with a managed return to practice. Women post childbirth need at least some approximation of certainty about when, and if, they are likely to be in court. Paying for childcare out of a self generated income makes no financial sense if it is a gamble whether or not money paid out to a nursery or childminder, will ever be recouped. Warned lists are bad for complainants, defendants and, contrary to much of what is said, not required for the smooth running of the criminal courts (which managed perfectly well before they were introduced, as do a number of courts now which operate without them). But relevant to the point I am making, about the need to entrench feminist principles into the policies which structure our working lives, if we are serious about supporting our female practitioners into senior positions, the more certainty we can bring to the working lives of the most junior members of the criminal bar, the easier it will be for women to make a successful return to practice post childbirth. Warned lists are a feminist issue. Combine warned lists with FOH, and we may as well hang a sign across the doors of Crown Courts up and down the country; ‘young women with children, no longer welcome here.’
Anyone who has spent any time in the criminal courts in recent years observing lists, as opposed to trials, cannot fail to be astonished at the amount of time we lose due to inefficiencies born out of underfunding elsewhere in the system. And that loss of time is loss of income for our most junior members. Hours wasted at court do not incur a greater fee. Ask any Crown Court judge: prison vans that don’t arrive on time (or don’t arrive at all), video links that break, a continued reluctance to deal administratively with matters that on any sensible analysis do not require two barristers and a judge sitting in court (case management, offering no evidence, fixing dates), a CPS which is understaffed and under resourced, the same for defence solicitors, generating delays, delays and more delays. The criminal justice system is less like a well oiled wheel, and more like a wooden one. Cut after cut in public funding has come at a cost. The move to digital working, video links, telephone hearings, is very welcome and will make inroads into our often spectacularly inefficient use of time when not in trials, but it cannot replace the need for investment. And where is the feminist perspective? Has it occurred to the MOJ to think about how we might use these welcome modernisations to better entrench our commitment to retaining female talent post childbirth and developing it? Or to really reflect on how the erosion of the system as a whole, due to endemic underfunding, comes at a gendered cost to our most junior members? No, is the short answer.
LIGHT AT THE END OF THE TUNNEL
We can but hope that the enlightened thinking coming from the Opposition, most recently the Bach Report on transforming legal aid provision – Bach Commission, Final Report see www.fabians.org.uk and the Lammy Review on race within the criminal justice system Lammy Review, Final Report www.gov.uk/government/publications/lammy-review-final-report, will shortly extend to incorporate gender, and a wholesale review of the position of women within the criminal justice system. From defendants to the judiciary, gender influences outcomes because feminism is not yet embedded in the policy that dictates how our courts our run. This critique is not a novel one. In a sequence of ground breaking reports, between 2004 and 2007, the Fawcett Society’s Commission on Women in the Criminal Justice System, chaired by Vera Baird QC, came to the same conclusion and much progress was made. https://www.fawcettsociety.org.uk/2004-women-and-the-crimin…
But the battle was not won, far from it. It is incumbent on all of us to take up the mantel.
The true efficiency saving in the criminal courts would be to increase not decrease the numbers of working mothers within the judiciary, at the bar and at partnership level in our sister profession. If there is one thing a working mother excels at, it is efficient use of time. I should know, I am one. Lose these women and in the long run, the loser is the Criminal Justice System itself. That so many of us now thrive, not just survive, is not an argument against reform. To paraphrase Lady Hale, and unlike the MOJ, we refuse to close the gate behind us. The greater we are in number, the easier the road ahead.*
*I have referred throughout to childbirth for brevity, but the points made extend to and should be understood to include adoption, miscarriage, still birth, fertility treatment and all caring responsibilities (not just of the very young and whether in gay, heterosexual or single parent families) all of which, statistically, continue to impact women’s careers in a different way to that of men. Statistics aside, many of the points made regarding the impact of motherhood on career progression extend to modern fatherhood. Working conditions that benefit women, benefit everyone.