Gender diversity in the legal profession: Has the glass ceiling been smashed?

Roddy Dunlop KC, Dean of the Faculty of Advocates

“I speak from the viewpoint of the Faculty of Advocates, the Scottish Bar. Faculty has been in existence since at least 1532, when it was first recognised in statute.

"That same statute instituted the Court of Session, the highest Court in Scotland. The statute spoke of setting up a college of “cunning and wise men” to preside over civil cases in Scotland.

"And, for over 400 years, it was only cunning and wise men that would hear such cases. Moreover, for almost 400 years, it was only men that would argue them.

“That changed exactly 100 years ago when, in 1923, Margaret Kidd became the first woman to be admitted to Membership of Faculty. This followed legislative change in 1919, which for the first time allowed women to become lawyers. 

 

“In an article that year, The Scotsman reported that a representative member of the Faculty of Advocates “…declared the feeling of the Faculty to be that, although they did not think women suited for the work, there was no use protesting”.

“Today, I read that with some embarrassment.

“Within three years of calling, Ms Kidd became the first woman to appear as counsel before the House of Lords. She built a successful career at the Bar. But if Ms Kidd broke the dam, what emerged was not exactly a deluge. Some 25 years later, in 1948, she would take Silk and be appointed Kings Counsel – the first woman in Britain to hold the rank and dignity, ahead even of the English trailblazers Helena Normanton and Rose Helibron who were appointed KC in England and Wales in 1949.

“For her entire period as junior counsel – 1923 to 1948 – Ms Kidd was the only woman at the Scottish Bar. The second woman – Isabel Sinclair – would call shortly after Ms Kidd took silk. Even then, pace was glacial. When Lady Dorrian, participating in this conference, called in 1981, she was only the 11^th woman to do so. When, in 1988 Leeona Dorrian, as she then was, was made an Advocate Depute – a prosecutor in the highest Scottish criminal courts, she was the first woman to hold that role.

“The next milestone was in 1996, when Lady Cosgrove was appointed as a Judge in the Court of Session – the first woman to hold such a role. Twenty years later, in 2016, Lady Dorrian became the first woman to be appointed Lord Justice Clerk – the second highest position in the Scottish judiciary, and a post that has existed since at least 1324.

“So: progress has been slow. But it has been made. Does that mean that the glass ceiling has been smashed? Plainly not.

“Scotland has never had a woman judge appointed to the Supreme Court. It has never had a woman as Lord President. In the 500 years of the Faculty of Advocates, whilst we have had two female Vice-deans, we have never had a female Dean. In the Inner House – Scotland’s civil appeal court – the three women are not just outnumbered by men: they are outnumbered by men called Colin, of whom there are four. Much still to do.

“The question posed for this part of the conference reflects the fact that the majority of law graduates these days are women. In fact, it has been nearly 30 years since women were the majority of law students. That is not reflected at the top of the profession, or indeed at the Bar as a whole. Women are underrepresented in the Judiciary in Scotland, and they are underrepresented at both the junior and the senior bar. Despite the fact that now two third of law graduates are female, women make up only one third of the membership of Faculty.

“Why is this? In order to answer this, I spoke to women who have made it to the top, two female KCs who deservedly have stellar reputations in the Scottish legal profession. Many issues were raised, all of which deserve consideration.

“Women tend to shoulder more caring responsibilities, whether for children, partners or parents. The Bar, which is of course not an employer, struggles to put in place structures that might manage this – we have no creche facilities, no funded parental leave, no job share for appointments as office bearers. The rigours of court scheduling leave little room to accommodate counsel's availability and daily commitments. At the time when men are reaching the highest echelons, many women are going through menopause and taking on caring responsibilities for older generation. Little is done to accommodate this. Much of what is perceived as success at Bar is about confidence. This can be a major issue for menopausal women. 

“We also have to accept that, even today, there are problems with structural and actual sexism, in which some antediluvian tropes – for example, that women are less accomplished in the art of cross-examination – still have some currency. All I can say to those who still hold such views is that they clearly never saw Lady Dorrian in action.

“We have real difficulties both in attracting and in retaining female talent at the Scottish Bar. There is a certain irony in this, in that life at the Bar is in many ways more flexible than the 9-5 of life in a firm. But the barriers are clear: women with familial responsibilities are often reluctant to commit to nine months of unpaid devilling. If they can get past that hurdle, the rigours of life at the Bar mean that we often lose women to different career paths, including the Bench. Speaking to senior women, one finds that there are many reasons for this, but a recurring theme is a difficulty in obtaining quality instructions at the top end.

“So: what can be done to address all of this?

“It is not just about encouraging women to the Bar but changing the culture to keep women there. We have taken many steps but need to do more. Thus far, we have introduced a new scholarship scheme to assist with finances whilst devilling. This – the Lord Hope Scholarship – is entirely funded by voluntary donations from Members of Faculty. Over 97 percent of Members contribute to this fund. It is weighted towards women and other underrepresented groups such as ethnic minorities. We have also introduced a Fair Instruction policy, designed to try and ensure that instructing solicitors asking for counsel are given options from both sexes. But this is still not enough. We need to take active steps to encourage women to become Office Bearers, and hold positions where they can inspire the younger generation. We need to increase engagement with the Bench, so that there is mutual recognition of the difficulties that can be faced by female practitioners. More recognition – such as by providing exemptions from CPD requirements – should be given to those with caring responsibilities. We should promote a culture that discourages work at weekend and nights and encourages a healthy home/work balance.

“Faculty is at its core a collegiate body. For centuries, a central ethos has been the support we give to each other. In a world where the majority of law graduates are women, we cannot continue to tolerate a situation where women are underrepresented at the Bar and in the judiciary. If we do, we are accepting a situation in which the most talented graduates are not coming to the Bar and not progressing to the Bench. That is not just bad for Faculty: it is bad for the administration of justice as a whole, and thus for the people whom that system of justice is designed to serve.”