An empirical study of the gender of counsel before the UK’s highest court

Previously published by UK Constitutional Law Blog (15 March 2021).

During the live television coverage of the Supreme Court hearings in Miller (No 1), some commentators (and no doubt many members of the public) noted that almost all lawyers in the courtroom were male. That image of the UK’s “Supreme Court bar” (to borrow a US term), though not entirely accurate, highlighted an ongoing problem with gender representation. In a new study (available here), I analysed the trends of gender and seniority in counsel appearances before the House of Lords and the Supreme Court from 1970 to 2020 based on a unique dataset I created covering 5,041 lawyers and 2,714 judgments. I found that there are some very optimistic signs regarding appearances of the most junior counsel. However, gender balance among the more senior counsel is not as good and has not been clearly improving over the most recent years, which matters because counsel with more experience before the highest court dominate litigation in that court. The unprecedented representation of women among the most junior counsel in the Supreme Court gives nevertheless a reason to believe that the situation will improve also among the more senior counsel.

Gender representation in the highest court is an issue public lawyers should care about, arguably even an issue of constitutional significance, for several reasons. First, appearing before the highest court is almost a rite of passage for future senior judiciary. 72% of the current Court of Appeal judges appeared before the UK’s highest court at least once and 41% of the Court’s judges did so three times or more (data from December 2020). Second, much of Supreme Court litigation is devoted to public law issues. Finally, being briefed (engaged) to appear before the highest court is a very visible and significant mark of professional recognition for an advocate and it matters, also for social legitimacy of the law, who is given that professional recognition.

Different trends for senior and junior counsel

In the 1970s, almost no women counsel appeared before the House of Lords. In 2017, women made up 27% of appearances before the Supreme Court (25% in 2020). For reference, women constitute around 36% of self-employed practising barristers.

Counsel often appear before the highest court in teams, led by “seniors” who are followed by “juniors”. In my dataset, I identified counsel as leaders of case teams when they were listed first and I classified all other members of a case team as juniors. The seniors are often Queen’s Counsel (QCs).  Figure below shows that even though women are now appearing as a leader at a higher proportion than in the 1980s it is unclear whether there has been any progress in this respect since the late 2000s.

Promising signs regarding junior women counsel

The story is different for women not acting as case-team leaders (i.e. for “juniors”). Here we have a clear rising trend and a proportion that is getting close to the proportion of women in the self-employed bar.

The category of juniors as I implemented it (every counsel other than the first listed for a given party in a court judgment) is very broad and it may include QCs and very experienced non-QCs. To see whether the truly junior female counsel are being given opportunities to act before the Supreme Court we should look at appearances relative to the year a person joined the bar.

This leads to a striking observation: in 2010s, women constituted 47.3% of barristers who had their first appearance before the Supreme Court before their fifth year of being barristers (post call). This is a higher ratio than the ratio of women among self-employed barristers under five years post call.

The figure below should be read in the following way: the cell in the bottom left corner (“2010s” and “0-4”) shows the percentage of women barristers called to the bar in the 2010s who had their first appearance before the Supreme Court by the end of their fourth year at the bar – a percentage of all barristers called in the 2010s who had their first appearance before fifth year post call. In this case the percentage is 47.3 because there were 52 women and 58 men in that situation.

The absolute numbers of male barristers who had their first appearance before fifth year post call have been quite steady over the whole timespan covered by my dataset (ie since the 1970s).  It is just the numbers for women which have been rising.

It could then be that the Supreme Court bar is moving faster towards gender parity than the self-employed bar in general. And this is even more striking given that almost no women could be seen in the highest court as late as the 1970s and early 1980s. Given the ratio of women Supreme Court first-timers among barristers under five and under ten years of call over the last decade, it may be reasonable to expect that the junior part of the Supreme Court bar will be moving towards gender parity at a relatively quick pace.

‘Homophily’: who leads women juniors

In 2017, Steven Vaughan and Chris Hanretty noticed that teams of lawyers before the Supreme Court are characterised by ‘homophily’, i.e. teams are relatively less likely to be mixed-gender. I found that this phenomenon has been clearly declining.

The figure below presents trends over time for three proportions:

• male-only teams of lawyers to all teams led by men (blue),
• female-only teams to all teams led by female counsel (orange),
• same-sex teams (male-only and female-only) to all teams (red).

Almost all case teams were same-sex (i.e. all-male) in the 1970s, but this ratio has fallen quite drastically to 0.55 in 2019 and 0.48 in 2020. The blue and red lines in the figure below are so close (and overlap until around 1980) because the vast majority of all case teams are male-led. There is a lower proportion of women leaders who have female-only teams than that of male leaders who have male-only teams.

An alternative way to look at the issue of gender in case teams is to ask what proportions of senior counsel of each gender have juniors of either gender (not just same-sex teams as in the figure above)? The next figure illustrates this by presenting the ratio of the number of case teams including at least one female junior to the number of case teams that included no women, by gender of the lead counsel, for every five‑year interval from 1975 to 2019.

There is a clear rising trend for male leaders: there is a much higher proportion of male-led teams including women today than at any time in the past. However, we are not yet even at a point where men lead as many teams that include women as teams that don’t include women (that would mean the ratio of 1). It is harder to interpret the data on women leaders. First, the absolute numbers of case teams led by women are low, as low as four between 1980 and 1984. The absolute numbers of women-led case teams seem more meaningful since around 2005 and it is clear that in that period women led a higher than men proportion of teams with at least one female junior. Interestingly, this proportion seems to have fallen for 2015-19. I don’t have a good answer why.

Just because women leaders have a higher proportion of case teams including women juniors, it does not follow that women leaders are chiefly responsible for “bringing” junior women counsel to the highest court. The absolute numbers of female juniors led by female leaders are small compared to the numbers of female juniors led by male leaders, as illustrated in the next figure.

Differences by area of law

As one might expect based on anecdotal information, there are differences in gender rates by area of law. The following figure illustrates the varying proportions of appearances by women counsel for five-year periods from 1991 to 2020.

Looking only at juniors: family law, tax law and criminal law have now the highest rates of appearances by women (with family law close to, or even above, 50% over the last decade).

The dataset and further questions

The most laborious part of this research project has been assembling the data set of 5,041 lawyers and 2,714 judgments from 1970 to 2020. The texts of judgments (even in commercial databases like WestLaw UK) contain only bare names of counsel. To obtain data on gender and years of call of barristers I wrote custom software in the Python programming language which allowed me to link names to information from the following sources.

• the Barristers’ Register from the Bar Standards Board,
• the register of the Scottish Faculty of Advocates,
• the website of the Bar of Northern Ireland,
• the digital archives of The Times (where I collected the lists of those called to the bar from 27 January 1923 to 14 March 2020),
• the UK Who’s Who & Who Was Who,
• Wikipedia entries on English judges and barristers.

There are further research questions I aim to address based on the dataset I assembled. For example: is there a relationship between seniority of leaders of case teams and the proportion of women on their teams? I also welcome all suggestions for other questions that could be answered based on the data.

For more detailed analysis and description of the methodology, please consult the full paper available here.

Mikołaj Barczentewicz (@MBarczentewicz), Senior Lecturer in Law, University of Surrey.

This post introduces results of an empirical study available in full on courts.barczentewicz.com.