Do female solicitors from Black, Asian and Minority Ethnic backgrounds face a gender and race pay gap?

Written by Ashwinder Gill - a Senior Solicitor at ABV Solicitor’s specialising in Fraud and Complex Crime, and member of the WICL Race Equality Committee

The Law Society’s PC Holder’s Survey 2019 shows “a large gender pay gap exists among PC Holders”. The gender pay gap is an all too familiar and depressing theme. It has been over 100 years since the Sex Disqualification (Removal) Act 1919, which enabled women to become lawyers for the first time – how can we have come so far and yet not far enough?

From 2017, it became mandatory for employers with 250 or more employees to report their gender pay gap data. This is a welcome legal requirement, as transparency and accountability are key factors to achieving progress. However, the 250-employee threshold for reporting is too high and does not capture a large number of firms. There is of course nothing stopping firms from voluntarily publishing this data, but many still choose not to do so.

Last year the Black Lives Matter movement gathered global momentum following the heart-breaking killing of George Floyd. It was painful to be confronted, yet again, by the reality of the world we still live in. However, important conversations were re-ignited about the examples of racism, discrimination and inequality that are still embedded into the fabric of our society. The topics of white privilege, white fragility and unconscious bias were being readily discussed in the mainstream media, along with the realisation that the fight for race equality is a collective cause and everyone (no matter their race) can play their part.

In 2020 the Law Society commissioned a report “Race for Inclusion: the experiences of Black, Asian & Minority Ethnic Solicitors”. The findings of the report indicated that the average salary for full-time white solicitors is “25% higher when compared to the salary of Black, Asian and Minority Ethnic solicitors”. Furthermore, “Black African and Caribbean solicitors have the lowest levels of remuneration overall”. It is disheartening to see that in almost every age group and working level “white solicitors still receive a higher salary than Black, Asian and Minority Ethnic solicitors”. The ethnicity pay gap is therefore a very real and current issue, directly effecting our profession.

There is no legal requirement for firms to report their ethnicity pay data. The government ran a consultation for ethnicity pay reporting between 11th October 2018 – 11th January 2019, with the outcome yet to be published. It remains to be seen whether any mandatory requirements will follow. It appears as though, in the political arena, the ethnic pay gap agenda is not progressing in the same way that the gender pay gap agenda is.

The Race for Inclusion report highlighted a number of difficulties solicitors from Black, Asian and Minority Ethnic backgrounds face in their careers – there are too many to consider in one blog. However, a clear theme in the report was the negative impact on career progression and retention, notably “a greater proportion of white males remain in the same firm and sector, whereas Black, Asian and Minority Ethnic females are the group who are most likely to have moved firm or sector, with around half having done so within the six years from 2015 to 2020.” This ties in with the recurring theme in the report of not ‘fitting in’ to the culture, which was particularly evident higher up the career ladder.

Another central issue is the effect of micro-aggressions, exclusion and the experience of othering which “can be as hurtful and demoralising, especially if frequently encountered”. The report makes a strong case for the importance of shifting this culture, to allow for fairer workplace environments. Simply put, words and actions matter. Open discussions on these problems are key to improving understanding, which in turn will improve the experiences of Black, Asian and Minority ethnic solicitors. Diversity and inclusion must go hand in hand.

There is much to be done and much that can be done. We all know how 2020 played out, but surely 2021 has to be the year for hope, progress and change?

I believe there is a need to explore the intersection of race and gender and its impact on equal pay. Specific research into its bearing on solicitors who fall into both categories would shed light on the issue, improve understanding and help achieve progress. An intersectional approach to pay reporting would surely be more meaningful.

Inclusion Allies - the role of allies is crucial and I do not think change will come without allies. There is a need for change in everyday cultures and behaviours. A greater awareness of the dangers of falling into stereotypes and unconscious bias will serve to create a fairer society. The Law Society has published guidance on being an inclusion ally (3 minute read) and I would urge everyone to read it. 

Visibility – inspire those already in the profession, as well as those entering the profession. The need for role models has never been more important. Make a submission to the “WICL Race Equality Committee: Women of Colour in Criminal Law – The WICL Directory”. The directory aims to shine a spotlight on incredible female criminal practitioners at all stages, from ethnically diverse backgrounds, inspire those coming into the profession, showcase role models for those moving to the next career stage, and create a digital network. So what are you waiting for? Make your submission here (it won’t take long I promise!)

Mentoring – the power of mentoring should never be underestimated and is relevant at all stages of your career. WICL have a wonderful and empowering mentoring programme, for more information take a look here. 

There is clearly an appetite and need for change. This topic is multi-faceted and cannot be addressed in its entirety in one blog, but it’s a start and that is something that we can all do – start the conversation, keep the momentum going and play our part in effecting change.

The Ongoing Discriminatory Danger in Magistrates’ Courts caused by Underinvestment

- Women in Criminal Law Policy Team, Magistrates’ Court Working Group

The long queues outside, and crowded spaces inside, Magistrates’ Courts are far from ‘Covid-secure’. While Cloud Video Platform ‘CVP’ is regularly used in the Crown Court and has been, on the whole, effective in allowing the Crown courts to continue with hearings whilst simultaneously drastically reducing footfall, fully remote hearings remain the exception rather than the norm in the Magistrates’ Court.

Remote CVP hearings are a vital piece of the puzzle in helping the wheels of justice to move again and to ensure that all members of the profession can continue to practise safely and efficiently.

Despite the Lord Chief Justice on 5th January 2021 stating that “facilitating remote attendance of all or some of those involved in hearings is the default position”, the starting point in the Magistrates’ Court remains that advocates attend in person. An application must be made to appear remotely, and it is very hit-and-miss whether that application will be granted. This is particularly the case for the duty solicitor, where Courts usually refuse remote attendance. Further, any application to appear remotely is unlikely to be considered until the morning of the Court hearing. This can be off-putting, leading many advocates to take to road of least resistance, attending Court in person.

Since then, on 17 March 2021, a message from the Lord Chief Justice indicated that, whilst “remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas” that “over the next few weeks and months…it will be possible and desirable to increase attendance in person where it is safe and in the interests of justice.” This all but confirms that there will be a push to bring back in-person attendance as the default position, including in the Magistrates’ Court.

There are many circumstances, often where the defendant is present, where in-person attendance will be preferable for all involved. The use of CVP during lockdown has not been without problems. However, it has shown that many hearings can be dealt with quickly and effectively over CVP. As one person who contacted us on social media said: “why should a mention take a full day including travel time?” With the resources of Legal Aid solicitors and the junior bar more stretched than ever post-Covid, why should we abandon an approach that prevents advocates sitting around at Court all day, at risk of contracting Covid, for derisory fees? That time can be put to much better use at the (home) office managing ever-increasing caseloads and administrative burdens.

We must not ignore the inevitable discriminatory impact of this on female advocates; caring responsibilities fall disproportionately on women, and juggling those responsibilities has presented particular challenges during the pandemic with reduced availability of childcare and uncertainty around the opening of nurseries and schools.

Is the current position in fact ensuring access to justice? Almost certainly not. CVP is rarely used to facilitate defendants’ attendance either. Whilst it used to be the norm for defendants held in police custody to appear by CVP from the police station, most police forces have now stopped providing this facility due to disputes over funding. This has caused chaos. We are aware of multiple cases where vulnerable clients have been kept in police custody for three days before the Courts have been able to accommodate their attendance. From a lawyers’ perspective, the advocate has also had to attend Court on each of those days, where they have spent the whole day waiting. This is, of course, increasing the footfall in the Court building.

Alternatively, defendants have been diverted to different Courts at the very last minute, with advocates being informed of this change at late notice, if at all, meaning that they spend several hours waiting at the wrong Court.

These issues are not limited to Courts, the CVP system affects prisons too. The limited number of CVP slots with prisons have to be shared between the Crown Courts, Magistrates’ Courts and legal conferences. It can take many months to secure a video link to a prison, which severely hampers the preparation of cases and limits defendants’ access to legal advice.

We have had a report from one member that the lengthy wait for a video link conference with a client in prison led to a request for a face-to-face visit, which would place that lawyer at personal risk. However, it came to light that face-to-face visits were offered only for one hour starting at 9am, which she could not attend due to childcare arrangements. The firm are now having to consider transferring the case to a different firm as the lack of available CVP slots or flexible face-to-face visits mean that they cannot provide an adequate service to their client.

We have reached a position where lawyers are having to make a real choice between protecting their own health and providing representation to their clients. Further, at an already very testing time, the lack of CVP is indirectly placing an additional strain on firms. How much more can we take? The profession is on the edge and, unless the system is given the funding it requires, and lawyers are trusted to know when it is appropriate for them to appear remotely, many more firms and individuals will fall as collateral COVID damage.

There is of course a simple solution but it requires investing in the justice system and prioritising the safety of prisoners and their legal representatives, something that has been severely lacking to date.

Women at the Criminal Bar: Fair Access to Work and Fees

- The WICL Policy Team

The problem

Since the inception of Women in Criminal Law (WICL) in 2018, we have heard repeatedly from our barrister members, particularly at the junior end, that they feel that they are hitting a ceiling after a few years in practice. We all know that retention of more senior women criminal practitioners is a problem, and the quality of work they do is one of the causes. One WICL member (8 years’ call) told us that she is increasingly moving her practice away from criminal work. Whilst she loves criminal law, she feels that her briefs have not evolved with her, and she is tired of watching more complex and profitable work being handed to her male colleagues in chambers as she walks the familiar path of sex cases and lower level general crime.

We have heard this from our individual members, and the data confirms the position. We know that women join the criminal bar in greater numbers than men, but that there are fewer women the higher you go.

HHJ Emma Nott recently published a brilliant series for Counsel on “gender at the bar and fair access to work”. She examines the data in detail and the picture is not pretty. In 2019, across 29 areas of law, men out-earned women in 27. In criminal law, women earned 39% less than their male counterparts.

Frustratingly, despite the heroic efforts of many within the profession to effect change, the position is not improving. HHJ Nott examines the number of women in both the top 500 and top 100 fee earners (of publicly funded advocates in criminal defence). Whilst the number of women in the top 500 has risen from 53 in 2011-12 to 63 in 2016-2017, this is down from a high of 90 in 2014-15. The number of women in the top 100 has held steady. At FOUR. No, that’s not a typo. Put simply, we are going in the wrong direction.

HHJ Nott’s figures are borne out by WICL’s own data. WICL conducted an equal pay survey last year, and are grateful to chambers who were prepared to participate. Our method excluded anyone who had any significant time off (due to illness, maternity leave etc.) but the picture was clear: over 10 years call men’s earnings consistently outstripped women’s.

Through working with WICL, the CPS have also discovered that despite their championing of women in their own organisation, their briefing is significantly skewed towards men.

The challenges

Collecting data on this issue is problematic, because there is no requirement for chambers, solicitors or prosecuting authorities to collect or publish this data. HHJ Nott looked at the Legal Aid Agency’s data on fees paid to advocates for publicly funded criminal defence work, however, we do not have data on private work (although we cannot help but think the numbers there would be even worse). As a result, those with briefing power are not accountable for their decisions. Further, following work with WICL Policy team and the Bar Council, the CPS are creating a new, more sensitive tool to collect this data and working to improve self-declaration rates on a number of protected characteristics in relation to CPS work.

The challenges faced by female practitioners are compounded by the Covid-19 pandemic. Several studies have shown that women have shouldered a disproportionate burden when it comes to childcare, home schooling and other caring responsibilities. Sometimes it is asked why this is still seen as a women’s issue. We agree, it shouldn’t be. Most children have a mother and a father. These are wider societal issues, and they need addressing. However, the fact remains that, right now, women’s careers are disproportionately impacted. We are delighted to have been instrumental in ensuring that the Extended Operating Hours policy was not rolled out, however, it is clear that women’s ability to work capacity is extremely limited in lockdown.

The solutions

Accountability for those with briefing power: We are thrilled that the CPS, who already lead the way on equality, have been working with WICL to address the gender inequality in briefing practices (see Part 4 of HHJ Notts’ series) and a plan has been set in motion. WICL’s work with the CPS has demonstrated that it is possible to improve diversity in briefing. We are confident that in time, this will significantly improve the gender pay gap in the CPS’s briefing figures.

WICL has also worked with the Bar Council Equal Pay Committee on producing to the Monitoring Work Distribution Toolkit Part 1: Sex which was published on 18.12.2020. As it rolls out, it too should improve the fair allocation of work in Chambers.

Whilst the legal requirement on larger organisations to publish data on gender pay gaps captures bodies such as the CPS and the SFO, it misses virtually all defence solicitors and does not encompass payments made to the self-employed bar. We believe the Law Society, the CLSA, the LCCSA and the CBA organisations should look to have a plan to improve equality in briefing and insist that chambers also has a written policy. As public money is being spent, we would also encourage the MOJ to require defence firms and prosecuting agencies to analyse their briefing data. We would encourage all of our solicitor and clerking members to champion the cause of gender equality in briefing within their organisations, and for chambers to commit to collecting and sharing data, across publicly and privately funded work, on fees.

Increasing female representation amongst criminal clerks: There are some brilliant women working in the clerking rooms of criminal sets, including several of our committee members. However, there is no doubt that clerking remains a man’s world. Clerks hold significant power in terms of the type of work in which tenants, particularly junior tenants, are briefed. Criminal sets should actively seek to recruit women to their clerking teams and properly analyse how clerks distribute work and promote their barristers.

Challenging gender stereotypes: Ill-informed preconceptions about the types of work that women and men are suited to persist in the criminal law. Women are perceived to be better at handling “emotional cases” and “difficult clients”, whilst men are thought to be more capable of addressing the perceived complexities of white collar and fraud work and of dealing with corporate clients. Written down, that sounds ridiculous, but these pre-conceptions inform briefing practices, and we must change them. Only by increasingly accountability, and challenging those with briefing power to do better, will we begin to dismantle these stereotypes.