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Monday Message – 28.09.15

CBA Chairman’s Message: 
Mark Fenhalls QC 

Lord Sumption is a brilliant lawyer, whose achievements outshine almost all of us, but his remarks suggest he does not understand the publicly funded Bar, nor the challenges facing women in our profession.
The profession has made huge steps towards becoming a diverse and vibrant profession in the 23 years I have been in practice.  But it is all in danger of going up in smoke.  Society will be damaged if our profession once more becomes the preserve of the wealthy classes.  The colossal debts now carried by students mean that the numbers seeking criminal pupillages are much diminished and the future health and diversity of our profession and the judiciary are threatened.  We are rapidly approaching a stage where the only people who are able to come are from affluent families. 
This is not progressive; this restricts social mobility and is not the meritocracy that the vast majority of us cherish and which the Bar at its best is meant to represent. 
Beyond the challenges for all aspirants joining the profession, the numbers suggest that we have an acute problem in retaining women at the Bar.  I am not sure that anyone monitors the drop-out rates of women from the Bar or has reliable data.  But I do know that my chambers has lost a disproportionate number of talented women over the last decade or so, usually to employment.  I suspect we are not alone.
Last summer I read a book entitled “Constellation of Genius, 1922: Modernism Year One” by Kevin Jackson.  It is the only book I have ever bought after listening to a Radio 4 discussion programme, while on a long drive up to King’s Lynn Crown Court.  It takes the form of a diary of the year and is full of utterly fascinating history.  The Conservatives crushed the Liberals in the General Election, Britain lost its naval supremacy, the USSR was formed, The Waste Land and Ulysses were published, radio broadcasting began and the BBC was created…  But most pertinently for my purposes the entry for May 10 reads as follows: 
“London:  Dr Ivy Williams became the first British woman to be called to the Bar”.   
The centenary is not far off.  In 2022 my daughter will be 18.  If she ever asked my advice (and happily there seems little risk of that, let alone that she would listen), right now it is hard to envisage including the publicly funded Bar in a list of sensible career choices.  If any other fathers and grandfathers out there feel the same way as me, it is time for us to try to help do something about this. 
The problem is of course not just with the supply of new talent.  It is also with what the Bar and Society is doing to enable mothers to return to our profession.  We should try and work out not only why so many women left but also why they did not come back. 
I am sure that there are many, many people out there who have far better ideas than me.  But may I offer the following personal thoughts as to what we should aim to have in place for “2022” to celebrate Dr Williams’ centenary. It may seem a long way off, but it is closer than you think and the work involved might require our political parties to make some meaningful manifesto commitments for the next election. 

  1. Tax deductibility of child care 

We need this to cover antisocial hours and, for example, care of sick children.  It is hardly sensible to halt a trial because a barrister in it has a child suffering a common place childhood illness that prevents that child going to school or nursery.  Why is it that a man can deduct the costs of business administration, while a woman cannot deduct the cost of their being looked after while she goes to work from her taxable profit?  The easy answer that one is about business and the other about private choices is trivial and ignores the reality.  If Society wants highly trained, experienced and talented self-employed women to return to work then surely we can work this out? 

  1. Student Loans

Student debt falls in to two categories.  That owned by the Student Loans Company and commercial debt owed to banks.  Anecdotal experience of the young barristers with substantial commercial debts is that they spend all their spare cash paying high (because unsecured) interest rates and have little or no prospect of repaying capital for these loans, let alone those owned by the SLC.
I think the Bar has to find a way of buying out these commercial debts and of purchasing the loans from the SLC at a suitable discount.  I would start with those who have been offered tenancy and are doing publicly funded work and face those difficult early years.  The Government would get a suitable injection of much needed cash now instead of nothing or very, very little for many years to come.  Of course if these are debts owed by women who do not see it as financially viable to return to practice after having children, the prospects of the Treasury ever getting a return are fancifully low.  I am no economist or accountant, nor do I know what vested interests in government departments or in banks think of ideas like this, but surely it is better to write off such loans now and give talented people from all parts of our society the incentive to do, and to return to, publicly funded work?
And what should our profession be doing while we wait for politicians and Government to catch up? 
The Bar needs to reflect on its culture and ask what more it can do.  Businesses all over the world are looking at the employees who have left and asking themselves if a talented and bright person who knows how that business operates could be retrained and brought back.  The risks after all must be lower and the potential rewards much higher, than recruiting from the less well known.
We should all be asking ourselves what more we can do to offer ease of access to high quality professional development.  Can the Bar persuade the big publishers to offer free subscriptions to those who cannot afford them at present but are trying to return to practice?  These women are not current subscribers, but they certainly will be if they can be brought back in to practice.
Perhaps we should all be looking to make the first £xx,000 of fees earned on return to work free of chambers rent or expenses?  What damage would this actually do to anyone’s bottom line and might it not make the difference between someone managing to fund child care, travel expenses, IT commitments and therefore returning to practice or not?
Some imminent changes in Court procedure may help a little – fixed times for preliminary hearings and increased use of telephone hearings are an example.  But there has to be more that is worth discussing:  help with networking, internships/ pupillages for returners, alternative paths to judicial careers…
Every one of us should be asking ourselves “how can I/ we do something about this?” and then actually do something about it.
Mark Fenhalls QC
The Criminal Bar Association
E: [email protected]

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