Women in Law

The judiciary was once a male-only bastion. Times have thankfully changed and with that, the female presence in the Scottish (and indeed U.K. judiciary) has markedly increased. Obelisk consultant Nicola Evans explores the history and progress of women in the judiciary.

In times gone by, access to the legal profession was governed by three factors: Gender, social class and wealth.

In Scotland, 1901, Miss Margaret Howie Strang Hall petitioned the court asking to be admitted as a member of the then-termed Incorporated Society of Law Agents. The courts refused, referring to the Romans refusal of allowing women to act at prosecutors. It was not until 20 years later that Miss Madge Easton Anderson became the first woman solicitor in Scotland and a further two years until Miss Margaret Kidd became the first woman advocate. Incredibly, Miss Kidd remained the only female advocate until 1948.

Judge Selection Process | Overdue Overhauls

Both England and Scotland have, relatively recently, had a considerable overhaul of the selection process for judges. Judicial selection is now much more transparent. In Scotland, the Judicial Appointments Board was introduced in 2002 and as its website states it was designed ‘to bring transparency to the selection process and to build a system in which the public, the profession and the politicians can have trust and confidence.’
In England, the Constitutional Reform Act 2005 established the Judicial Appointments Commission, which is now responsible for appointing judges. The 2005 Act specifically states that appointments must be made solely on merit.

However, the U.K. still has one of the lowest proportions of female judges on its benches, according to a report by the Council of Europe. If we take a closer look, we see the Scottish legal system continues to struggle with equality in terms of appointments. As of 2016, there were only 125 women working as advocates (who represent clients in the higher courts) out of 462 people who are members of the Faculty of Advocates.

Of Scotland’s 113 QCs, only 21 are female. Further, of the 31 judges in post only nine are female. Europe-wide, systems with the lowest percentage of women among professional judges were Azerbaijan (11%), Armenia (23%), Northern Ireland (23%), Scotland (23%), England & Wales (30%) and Ireland (33%), with an overall average of 51% in Europe.

Female Judiciary Role Models

There are several inspirational women of note in the judiciary. In England, Lady Hale was appointed Deputy President of The Supreme Court in June 2013. In January 2004, Lady Hale became the United Kingdom’s first woman Lord of Appeal in Ordinary after a varied career as an academic lawyer, law reformer, and judge. In October 2009 she became the first (and remains the only) woman Justice of The Supreme Court. As such, Lady Hale is the most senior female judge in the United Kingdom.

Lady Dorrian QC was appointed to Scotland’s second highest judicial post as Lord Justice Clerk in 2016. This appointment made Scottish judicial history as no woman has served at this level prior to this. Lady Dorrian, a graduate of the University of Aberdeen, was admitted to Faculty of Advocates in 1981 and served as Advocate Depute – the first woman to hold the position – between 1988 and 1991, and became a QC in 1994.

Lady Hale is a regular speaker about issues such as feminism, equality and human rights – and has notably been happy to be open about the ‘imposter syndrome’ that she has experienced. This characteristic affects more women than men and is the feeling that despite academic and professional success the person will be found out to be a fraud. Many studies have looked at this and found it to be a natural symptom of gaining expertise.

Success for Women in the Judiciary

Lady Dorrian has referred to only a modest amount of sexism in own her career – and that was largely in the sense that it was simply less familiar to have women appearing in court and conducting cases. She does not attribute her success to having a particularly pioneering attitude, but simply to working hard and taking opportunities that seemed sensible.

It is interesting to note that both Lady Hale and Lady Dorrian almost seem to downplay their respective success in the profession: a characteristic that people who ascend very hierarchical institutions often exhibit. Sheryl Sandberg’s bestselling book Lean In: Women, Work and the Will to Lead looks at this tendency and unsurprisingly, many of the case studies are female.

Family-Friendliness | the Bar vs Private Practice

Although not necessarily an easy option, the Bar has been considered a more ‘family friendly’ career option than private practice. Roisin Higgins QC, commented in the Scotsman newspaper that far from being a hostile environment to female advocates, there is the suggestion that for women hoping to combine a legal career with family, advocacy might offer the most family friendly path.

Remaining Challenges for Women in the Judiciary

Lady Dorrian has pointed out the real ‘challenges’ facing the future of the profession in relation to its composition, access to it and progression within it. In a recent conference, ‘Equality means Business’ in Edinburgh in May 2017, Lady Dorrian highlighted that the legal profession as a whole should be representative of the society which it serves. Without this diversity, the profession runs the risk of not being able to offer access to justice for a wide range of practice areas (often the poorly funded areas) or for a wide client base. To be respected, the legal profession has to reflect the society it represents.

Accordingly the benefits of putting equality and diversity as the focus of the profession, she points out, isn’t just about doing the right thing but is enshrined in legislation, putting duties of equality on the shoulders of employers and public authorities.

The profession should take heed and retain talent by constantly seeking to ensure it is nurtured in the correct way.

Nicola Evans has a background in commercial law having worked  in-house for an international company and also having lectured in law. Nicola works as a Consultant for Obelisk Support, specialising in commercial law and providing remote, flexible services.

Making Work, WorkWomen in Law

We often talk of the challenges and obstacles that stand in the way of diversity and equal opportunities in the legal profession, so it is worthwhile to approach from a different perspective once in awhile, to look at the achievements and positive trends to inform and inspire future progress within the industry. Encouraging more diversity in recruitment is just one aspect of this progress – alternative business structures and a culture rethink is required to retain diverse legal talent. Here at Obelisk we work to lead by example and change the culture of the legal services industry to create a flexible working model accessible to all.

In June, there were some encouraging trends coming out of the UK Law Society’s annual statistic report, showing that the number of BAME and women solicitors is on the rise. Solicitors coming from Black, Asian, and minority ethnic (BAME) backgrounds now make up 16% of the profession, and 57% of these are women, in contrast to 48% of white solicitors who are women. Overall for 2015-16, 62% of admissions were female, up from 53% 15 years ago.

What firms are doing to address a lack of diversity

Any private practice or other public company who is actively working to tackle the complex issue of diversity is to be celebrated. Working to minimise recruitment bias, tapping latent and underused talent and incentivising company diversity are just some of the key areas of focus for diversity programmes and innovations. Some specific, high profile examples that have been particular talking points in the legal profession include HP’s diversity mandate that withholds a percentage of fees from firms who do not meet their set diversity requirements, previously discussed here in the Attic.

Another example is Nixon Peabody, which has adapted its approach to recruitment – ensuring that 20% of candidates called are diverse (the definition of a diverse workforce for Nixon Peabody CEO and managing partner Andrew Glincher includes all – BAME, women, LGBTQ) and first candidate called for leadership position is diverse if equally qualified for the position. The firm has earned a 100% ranking from the Human Rights Campaign in its Corporate Equality Index for ten consecutive years.

Talent retention

Of course, it’s not just about attracting talent to create a more diverse workforce, but also to maintain a culture that retains such talent. In fact, it can be detrimental to the success of a diversity programme if the focus is too much on recruitment and hiring. Firms need to look at the whole picture and focus on changing the mindset in recruitment, investing in people who want to build their careers and develop with a company long term.

Work that works for everyone

The profession needs to acknowledge individual difference and recognise that people’s needs will change over time. They need to work closely with those talented individuals and use their experience to inform company decisions, recruitment and training in future. Rather than expecting individuals to come in and adapt to an existing culture they should have a role in shaping it for the better. There are signs that this concept of a total change in culture and working patterns is becoming more popular, with the Law Society survey reporting that 475 alternative business structures (ABSs) were in operation: 116 more than a year earlier making up 5% of all firms.

Adapt or be gone

When it comes to diversity measures conversations often turn to criticism of so-called positive discrimination. It’s important to be clear that levelling a playing field and creating a working culture that allows everyone to progress in their career no matter what their background or personal situations. Nobody loses out if more people are more meaningfully able to compete and challenge one another – we all do better when the game is fair, and more of society is reflected in institutions that represent them. As Law Society president Roberts Bourns puts it: “Firms with good diversity, inclusion and social mobility policies have a competitive advantage… Not only do solicitors themselves come from an ever widening pool – reflecting the diverse society of which we are part and which we serve – but new business models are flourishing, allowing us to provide an ever more tailored service to our clients.”

The progress we’ve seen shows there are many steps in the right direction. But the rise is diversity in the industry globally is slow, and it is important to remember that law remains the least diverse profession in many countries, including the US. It is vital to see more leaders actively tackling the issue, and championing alternative ways of working to retain talent and create a more open and accessible industry.