The IBA held an expert panel discussion on women in the law on 26 April, chaired by BBC broadcaster Fi Glover. The panel comprised four lawyers at the very top of the profession: Margaret Cole, former managing director of the UK Financial Services Authority’s Conduct Business Unit; Baroness Helena Kennedy QC, leading barrister and human rights expert; Elizabeth Barrett, Slaughter and May partner and former head of litigation; and Katie Ghose, chief executive of the Electoral Reform Society and former director of the British Institute of Human Rights.
FG Fi Glover (interviewer)
HK Helena Kennedy QC, leading barrister and human rights expert
EB Elizabeth Barrett, partner, Slaughter and May
MC Margaret Cole, former managing director, UK Financial Services Authority
KG Katie Ghose, chief executive, Electoral Reform Society
FG A very good afternoon to you. You are all very welcome to this, the latest in the IBA webcast series, which focuses this time on women and the law.
Let me introduce our guests to you this afternoon. Helena Kennedy is a leading barrister and an expert in human rights law, civil liberties and constitutional issues. As a life peer she’s campaigned for the retention of the right to jury trial, she’s a founding member and Chair of Charter 88, and she was also Chair of the Human Genetics Commission and the British Council. And pertinent to this, in the 1970s and 80s Helena dedicated herself to campaigning against discrimination experienced by women in the law.
We also have Margaret Cole here this afternoon. Margaret is the former managing director of the Financial Services Authority Conduct Business Unit. She joined the FSA in 2005 as Director of Enforcement, and last year, and this is well worth noting, her department recorded 11 convictions for insider dealing and fines levied totalled £66 million. People quake at the mere mention of her name – hello Margaret.
We also have this afternoon with us Elizabeth Barrett, who’s a partner and former head of dispute resolution at Slaughter and May. Now Elizabeth’s practice spans a broad range of high-profile commercial litigation, investigations and contentious regulatory matters. What she doesn’t know about risk management ain’t worth knowing! She’s advised HM Treasury on a series of high profile instructions arising out of the financial crisis, including governmental interventions in Northern Rock and Bradford and Bingley; you’re very welcome.
And finally on our panel this afternoon, and feel free to ask questions of any of the ladies who are here, we have Katie Ghose, who’s chief executive of the Electoral Reform Society. She’s been there since 2010, and before that was a director of the British Institute of Human Rights. She’s also done campaigning work with Age UK and Citizens Advice, and the Electoral Reform Society has recently joined forces with the Hansard Society, the Fawcett Society, Unlock Democracy and the Centre for Women and Democracy to launch a new campaign, Counting Women In, which aims to secure equal representation for women at Westminster and across our political institutions.
So they are dynamic women here this afternoon. We have an awful lot to talk about, ladies, and I will try and pack everything into the time that we have allotted to us. But let’s start with a very big broad question. Helena, perhaps you can start us off.
Where do you think we are in terms of gender equality in the legal profession? Is it possible to, you know, dip the litmus paper in and say 'this is it for 2012'?
HK Doing well, but a long way still to go. I’ve been practicing at the Bar now for almost 40 years and it’s always been an issue at the forefront; some women just don’t notice, whereas I have always kept a beady eye on the position of women.
When I started it was eight per cent. Now in our law schools many of them have 50 per cent women, but that’s not reflected in practice at the Bar or in the solicitors' profession. Hard still for women to get to senior positions, we still only have one woman on our Supreme Court and no sign of that changing shortly, and really the percentage of women in senior positions in law firms as senior partners is still pretty poor, 5 per cent, not good enough.
FG Elizabeth, what will help?
EB Goodness me, that’s a difficult question. I think self-awareness is very important. In the legal profession I think we’re in a very positive position because we have something like 50 per cent men and women coming in on qualification, and I think that people need to start thinking about themselves as people rather than necessarily as men or as women and identify individual strengths and weaknesses.
FG Do we need more laws, do we need something better enshrined in law or just a better practice of the laws that we have already guiding our equality? I mean, it would seem ironic that the legal profession can’t be the place where laws are interpreted to the very best of the ability of the people.
EB I would be surprised if it’s a question of needing more laws, and I’d defer to Helena on this.
HK I actually think that it’s very much cultural and attitudinal and we’re still having to battle with residual ideas that there are certain areas of law that are really suited best to men, and still battling with the idea that the only way of showing that you’re, you know, an 'alpha performer', is to be putting in long hours, I mean ridiculously long hours, and this is a problem for men as well. But women do well until the point when they want to have children, and one of the pieces of work that was done recently about the Bar showed that when you saw a [falling away of women] it was usually in that age group of mid to late 30s where women were finding it very hard to do it with a family.
But the other thing was to show that in terms of sacrifices that people make many, many more women who stay on and make a real profession at the Bar are childless, and they seem to have made an act of choice in putting career before having a family. So it’s cultural, we have to find ways of making that work better, and that of course cuts into other professions too.
FG Yes. The Law Society did some interesting work certainly on the pay gap, and also in that survey the pay gap is still very poor for the legal profession. In the survey they ask for anecdotal evidence about how women had found themselves victims of sexism during their careers, and I wonder whether any of you - you don’t have to tell ghastly tales here and you don’t have to name names and you can attribute it to one of your colleagues if you want to, but I mean all of you have done terribly, terribly well -have you had to fight with your fists along the way; have you experienced direct sexism?
MC I have. I think I had an early career experience that I can go back to, which was when I was that thing called an article clerk in a law firm many, many years ago in the early 1980s, and the firm was about to send article clerks, now trainees, abroad for the first time and I desperately wanted to do a stint abroad in Hong Kong.
When the firm chose which trainees were going they chose two male trainees, and then when I asked why, I was told that they’d have to share accommodation, and it was the first time that the firm had ventured into sending trainees abroad so they thought it was safer to send two boys the first time around.
And I was bitterly, bitterly hurt, upset, angry, and all of those things, and it sort of really enshrined an attitude at that time, so that was my personal experience of it. I’m sure I’ve had experiences of it subsequently but they’ve been less direct and obvious than that.
FG And as you all go further up the tree, you know what happens to the air around you, do you notice that it becomes more sexist when your other female colleagues may kind of drop away, what does that leave you feeling? More exposed, more powerful, what?
HK It’s very interesting, because I think it’s important to look at the things that have happened as a result of campaigning. We have to be realistic, change has taken place because of campaigning and it’s been a long old battle. When I started at the Bar there was no sex discrimination legislation, so Chambers were very explicit, they said we don’t take women, you know, they made it very clear. Then the law changed and said well, you know, you’re not allowed to discriminate, and then they would say 'women, we’ve got one', and so they felt that they’d sort of proved that they were not discriminating by having the odd woman here and there.
And that happens in lots of fields but it certainly happened in the law, and then they would be very picky to make sure that she was not going to be a troublesome woman, that they actually would ask questions about whether you had a boyfriend or a fiancé, you know, were you planning marriage, and you immediately saw the door opening with your being shown out… if you suggested, you know, that you just might be a woman who liked men and were likely to go down that road.
And so there was a sort of sense in which they used to talk and they would say things like well, you know, we do have a woman but she’s a spinster and she’s committing herself to the profession, and so on, and she does family law, and so it was also about there being special areas that were fine for women, but there were areas that certainly weren’t.
Now I wanted to do criminal law, I wanted a taste of blood, I liked the fight in the court and again, sometimes there were senior men who found it deeply inappropriate that women should be in criminal law and doing adversarial kind of work. So a lot of it was about attitude and you had to keep eating away at it.
What’s happened now is of course these things are much more subtle. They don’t take the obvious form, nobody’s going to say 'we don’t take women' or, you know, we’ve got enough of them or anything like that, but you still have this problem and sometimes women buy into it, that’s one of the other problems, is that they say 'we only want to appoint on merit', as though merit were some kind of totally neutral concept and the gatekeepers weren’t men. You know, for the appointment just now to the Supreme Court, when some analysis was done as to who was consulted as to the appropriate person for the appointment, 26 people were consulted, not one was a woman.
So those are the problems. Gatekeepers have to be widened, the criteria have to be set in a way that is more conducive to the lives of women, and to value the things that women are really good at, because if the guys get to decide that I’m afraid sometimes it doesn’t work in women’s favour. And sensible men see all this too and some of the best mentors I ever had were men who were enlightened men, but unfortunately there are still a few around who are not so enlightened.
KG Helena, I think what you say about the pipeline and talent is something that we see in law and in politics and probably in all the kind of work places there are, and we’ve got to get away from this argument that somehow if you’re going to have more women or men in a profession there’s going to be some sort of a merit point. I mean women and men can be equally rubbish and equally brilliant at things, we need to take the merit right out of it, and the idea that there wouldn’t be enough meritorious women out there to fill the handful of judicial posts that there are in our country is a nonsense and we’ve got to knock this one on the head.
FG Well this is the same argument, isn’t it, for getting 30 per cent of boardrooms female, you know, the notion that suddenly everyone’s going oh my god, but there wouldn’t be 30 per cent of women who are good at…
HK And women buy into this, because you hear them saying 'I wouldn’t like to be appointed as a token women', as if somehow from the guys around them, there aren’t plenty of mediocre men getting roles. Of course they’re not going to appoint mediocre women to these things, there are plenty of brilliantly talented women out there, in fact, you might up the quality of some of these boards or some of these law firms or chambers or the judiciary if you actually did just open your eyes and looked for excellence in unusual places and not the same old places.
FG Before we go on to talk about the judiciary, there is an interesting change and a real kind of cause for hope in the new application procedure for QCs because hasn’t that resulted in far more women getting through because you now apply in a much more kind of form-filling way, don’t you, it’s not about a board of people deciding?
Now what does that tell all of you about the methods in your own industry of choosing who gets to the top? I’m trying to avoid saying women are better at filling in forms because I think that’s a patronising way to go.
HK No, no, no, no, but there is something about that that I find unattractive, which is that yes, it used to be that it discriminated against women when it was the old tap on the shoulder or the men talking up men, because what we all know, and it’s part of the human condition, is that people tend to choose people who are like themselves. It’s just we probably gravitate towards people who are in some ways like ourselves, or where you see somebody coming through and they remind you of you and how it was for you and, you know, I think that that’s natural and you have to find ways of countering it and reminding men that they mustn’t do it.
I remember speaking once to a politician and she said the reason there were no women in the media cabinet was because the men would talk up younger men and the women didn’t get talked up, and so there was a problem with the old process; the new process, which is form-filling, also creates banality because it doesn’t tell you really interesting things about people.
I really always want to see people, I want to get a sense of whether they’re bringing something extra to the role, and I hate it all being too form-filling because I think that then is not a driver for the sort of change that I want to see.
MC This point about appointing your own image is one of the things I think I’ve seen most starkly; I probably feel I’m jumping the gun on where you’ll come to later. But I’ve been in the corporate environment for a period of time and I’ve seen a lot about appointments to boards in financial services companies and there really is a critical point here because there is a lot still there about the old boy network and people appointing non-executives amongst their friends, and that does tend to be because most of the execs and the non-execs remain men, that does tend to be men, and there clearly is a tendency to just go for somebody from the same background and, you know, you believe in yourself so you believe in them.
So there has to be a conscious effort to go for different people, and this issue around diversity and how you get people running companies in financial services and elsewhere of a diverse nature to get the best results, is this absolutely critical point I think for the future of our corporate environment. Perhaps we’ll come back to that a bit later.
HK Too right, yes.
EB Are we focusing on a different skillset, should that be the focus, or actually are we focusing initially on gender and then looking at skillset?
MC Well, no, I think we have to focus on the skillset and where we want to look for that I think, as Helena said, is across a wider range of people and types of people and types of backgrounds, and what happens if you have a very male environment where you just sort of know they’ve all come from very similar background they will feel happier and more content, and I’m not saying it’s even conscious.
I think this is where subconscious bias comes in, to have people around them who remind them of themselves, and therefore we have to find ways, not necessarily through new laws but, you know, it may come and it may come through quotas, who knows, of intervening there and driving different styles of choices so that you get people from different backgrounds so that you don’t get group think, an expression I don’t really like, but anyway, you know what it means, because that sends things in the wrong direction.
And absolutely, I’m completely against tokenism, it’s very bad for women to be token women and it’s very bad for women to be the only one in an environment, so we’ve got to work out ways to drive, you know, sort of a quantum leap here in bringing women into these decision-making situations.
FG But don’t you realistically have to accept that you almost do have a generation of token women, of people who just have to put it on their own shoulders, I’m going to do this, I’m going to walk into this different place and I’m going to make a lot of noise about it because then the younger generation will be able to see those people? I mean in a sense that’s what all of you must accept that you’re doing involuntarily.
HK Role model.
MC It’s a nicer expression, isn’t it?
HK Role model is better than token women.
FG Well, it is, but one person’s role model is going to be somebody else’s token woman, I mean it depends on where you are…
HK I’d like to hear Elizabeth because I think Elizabeth and I come from this in a different way and I’d really be interested to hear.
EB I think we probably do. In order for people to be respected they need to be valued. If we use your expression of a token woman, is the token woman going to… naturally going to encourage respect? I fear not, and that’s one of the reasons why I’m concerned about the idea of departing from meritocracy, and I’ve listened to the interesting observations about the reference to meritocracy being a cop out, and in certain circumstances I’m sure it is; I do therefore wonder whether quotas is the right thing. The best argument I’ve heard so far for quotas is actually Margaret’s point, which is that whether people realise it or not they do have a tendency to choose themselves.
HK I want to come back on the business about quotas and the reasons for that. 'Token women' is a bit like all these things, like the word feminist, you know, with enough work done on them they can turn into really denigrating notions.
The token woman, let’s just go back to the Sex Discrimination Act when those sets of Chambers that had said we don’t take women then suddenly felt required to stop doing that. When they then had to look for a woman do you think that they decided to go for somebody who wasn’t very good? Of course they didn’t. They chose then the best possible woman they could possibly get who was going to be as good as the guys, so in fact when you get the one woman she starts work and she’s usually pretty exceptional, and that continues to go on, it’s only when you get serious numbers that you start getting serious mediocrity.
I mean when you look around, you know, with men in any walks of life there are those that are brilliant, and alpha males and great performers, there also are a great number who are just regular folk doing a decent, good enough job, and we’ll only have got there when women are allowed to be in that position. The reality is now that the senior women, whether they’re at the Bar or wherever, who came in as the one originally, then when there are just two of them, then when there are just three of them, are usually pretty fantastic women, and that’s what’s extraordinary about it.
So when you look at the appointment to the Supreme Court now, we have a fabulous woman on the Supreme Court, Brenda Hale, she’s absolutely wonderful. You then look down at the Court of Appeal, which would be, if you like, the terrain from which one might appoint to the Supreme Court. There are a number of women in there who are also fabulous women; why aren’t they being moved forward?
And I think, you see, the point is that there is a feeling that this is the guys deciding, you know, whether they think people are absolutely sheer genius or not, and I really resent it. And I think as women we should be much more forefront about saying listen, it’s time that we moved on, you’ve got one woman in the Supreme Court, there ought to be at least another, and the next time there’s an appointment it should be a woman, decide which one of them you think is the best one.
FG And there are some fantastic candidates, yes.
FG One question specifically for you, Elizabeth, which has come from one of our viewers this afternoon, do fill in the box under the screen if you’d like to take part. The dearth of women in senior positions in law firms is always topical; rather than asking the usual philosophical questions – sorry about that – I’d like to ask a practical one.
Is litigation as a practice area better for career progression than transactional work, for working mothers? And this comes from someone who describes themselves as a female private equity associate in a smaller city-based firm.
EB In my experience, the hours are long whether you are a transactional lawyer or whether you’re a litigator, so I don’t think litigation, certainly the way that it’s practised in my firm, is a soft option or involves shorter hours.
FG What about the status of part-time workers? I mean for all of you if you find yourselves in a situation where you’ve had children and you want to spend a lot of time with those children, or you have other responsibilities outside work, do you think that we will ever be in a position where we genuinely regard someone who works part-time as being as committed to their post, as valuable to the company, as valuable to the wider world, all of those things?
HK Well, I think it’s about changing the environment, and I’ve been very fortunate because when I started at the Bar, as a group of young barristers we set up our own chambers and it was half men and half women, and I’ve continued throughout my professional life to be in sets of chambers where I wasn’t joining some 'establishment' place that already had its set ways - we were creating the new environment.
And so I work alongside men who are as committed to these ideas as I think most of the women in my chambers, and there is a high percentage of women and a very high percentage of QCs now I’m very proud to say, and the men are supportive and there is no expectation that people should be there burning the midnight oil or any of that kind of thing. That is not the way of measuring things. The men value it too because they also want to have a family life as well.
Now, that’s not to say that I didn’t have to at times make choices, which were that I would not accept the big case that would mean that I’d be in Birmingham or in Manchester for months on end, because I wanted to spend time with my children, but in the end as long as those choices are ones that you’re comfortable with... It may have meant it took a little bit longer in some ways, but in the end I think it’s about creating an environment that’s supportive of that idea that everybody should be allowed to have a life that includes your family life as well as your professional life.
FG And it’s interesting as well, isn’t it, that in every single other country where better equality has been achieved, they have better paternity rights, it’s not just maternity rights, and for every conversation we have about maternity rights we should be having the same conversation about paternity, shouldn’t we?
KG And I think there’s this problem that for some women in the law and in other jobs there’s a kind of cliff edge, so you know, you have a child, or maybe you have to take some time out to look after an older relative, and I actually think that’s going to be far more of an issue in years to come than children and far less predictable as well, there’s a cliff edge and there isn’t the ability to have a different kind of working life for ten years, and then with all that experience go right back in at the absolute top performing end, long hours kind of culture, and I think we lose so many people because of that.
MC Look, I mean my experience for the last seven years has been in a public sector organisation and I can say as far as the Financial Services Authority is concerned it really recognised that it needed to do more to have flexible working and different styles of working and, interestingly enough, different people, it’s very cross-discipline at the FSA, it’s not just lawyers, even in enforcement, heavily legal, but you know, accountants and forensic people and the police force and other regulators.
We have a lot of people working part-time and we really have tried to make a really significant effort to value them. But I suppose the imperatives are different because we aren’t earning money, this isn’t an organisation that’s delivering a commercial outcome so you could say we could afford to do it in a different way, and maybe it’s that commercial imperative in law firms in particular where I see it as being really quite difficult to change that because if it’s all about how you basically extract your rent from your staff, you know, what are your incentives to change it?
EB And if I can just add a couple of observations of my own on that, I don’t think that we look upon it as a matter of commerciality, but lawyers are a service industry and we are here to look after the needs and the demands of our clients, and they have become I think much more extreme over the last 10, 15 years.
MC I’d certainly agree with that.
EB The other issue is that increasingly, I think people choose not just the firm but the individual, and it is very difficult therefore for people in the firm to look after clients’ interests - when I say people I mean men and I mean women - and not be available on a pretty full-time basis.
FG One of the things that I enjoyed reading enormously in researching this webcast was Baroness Hale’s views on what women bring to the judiciary, and I absolutely love the point that she made that at the moment you have lots of male eccentricities rubbing up against each other and what we need in the future is lots of women’s eccentricities. It’s a really important point, isn’t it, that we must be careful of always talking about women as this great kind of homogenous lump that all thinks the same way and will bring the same thing to the party. You know, we have to be kind of cleverer and more expansive than that, don’t we, to make sure that what we are trying to create is not just a level playing field but a very interesting playing field. Do you ever feel that we do talk slightly too much about women?
MC We’re doing it now!
HK Absolutely, because of course there are as many different kinds of women as there are men and that’s why it’s important for women to be in there in all their diversity in the law because the law is having to grapple with a complex society which is no longer homogenous, where women’s expectations have changed. And out there, there is a public that want to see the law really in many ways understanding their lives and the judiciary has to be able to do that, so that’s one of the reasons why it’s not good enough for it to be a line up of guys in suits, it really has to include some women as well, and different kinds of women, and the women shouldn’t all be from the same class background either, you know, we want diversity in the women too.
FG Lots of questions so far, and this one comes from Bijal Shah, who says on the subject of gatekeepers, how do the panel feel about women who’ve made it to the top and then pull up the drawbridge for other women pursuing the same progression? And there’s that lovely Madeleine Albright quote, isn’t there, that hell has a special place for women who don't help other women. But have you found that a lot, is that what some women need to do? Elizabeth, you’re shaking your head.
EB I don’t think I’ve seen that, and I would very much hope that I didn’t. I don’t know what other people’s experiences are though.
MC I’ve certainly promoted many women in my most recent career and previously. Going back to another point, there is that Harvard research, isn’t there, it’s not just about mentoring women in the old fashioned sense, it’s about promoting people, that’s what men are so good at, isn’t it, your point earlier about bringing on the men; that’s what women have to do for each other, and I think actually make a conscious effort. Again, I don’t believe in being very neutral about this, I make a conscious effort to bring on the women.
HK This is where I think that Margaret and I are speaking the same language. I think that you have to have it at the front of your mind, and I heard one of the senior women judges recently, pleasurably to my surprise, saying that, you know, if you have two candidates in front of you in an area like senior law firms, two candidates, you know, a man and a woman who are really both terrific candidates, then you should be tipping the balance in favour of getting the woman in in order to start changing the numbers.
But on that whole business of, you know, women, yes, there are queen bees who like being queen bees, there are women who like wearing the badge of being the exceptional woman, and certainly I at the Bar had plenty of experience of senior women who, you know, would tell you off because, you know, they felt that you weren’t doing it as the chaps did it and that that was what was excepted of us, and yes, and they were not always supportive of younger women and were often hypercritical of younger women, and I think it’s really regrettable for women not to lend a hand to the next generation.
FG This one comes from Preetha Gopalan who’s working at Freshfields. Do any of the panellists adjust their manner or approach when dealing with men in the workplace?
EB I adjust my manner and approach all the time. I mean in real life you’re not just sort of one person all the time, are you, you adjust to your circumstances. If you’re a good manager and a good professional I think you do have to do that.
FG I can’t imagine any of you though being suddenly diminutive or overly…
EB No, not that form of adjustment.
FG ...flirtatious, or anything ghastly like that. This comes from Angela Petrucia, who says from your perspective are there countries which are better than others in terms of equality in the legal profession, who do you think does best, and do you ever fancy going there?
HK Well, one of the things that we have to be mindful of is that comparisons often don’t work, and one of the reasons why is because, for example, if you look at the rest of Europe they have a very different legal system where, for example, there’s a professional judiciary and people can become judges at 27. You know, they come out of law school and instead of becoming a lawyer they become a judge, and they start at a low level but they work up through it.
And so because of that and because the judiciary in some places is much more bureaucratic, much more of a civil servant type role, then the percentages of women are much, much higher than in Britain and in other common law countries where usually judges come from the cohorts of lawyers, and so it’s senior lawyers who then in turn become [judges], and if you have a problem becoming a senior lawyer then you’re not going to be getting on to the judiciary.
So to make the comparisons you really have to dig a bit deeper and mine it out. Do you agree with me that it’s sometimes problematic to make easy comparisons? I’m not sure that I look around and see it being terrific for… I think Canada’s pretty fabulous for women actually, I would say Canada. I think, you know, if I were to practice somewhere else it would be maybe Canada or New Zealand.
FG Okay. Any other bids? No, you’re all happy here. What we should also be wary of in this country is of doing ourselves down, isn’t it? I mean it might be easy to make a comparison to, you know, countries like Canada and see ourselves as being worse off, but actually in terms of most women in the world we are exceptionally fortunate…
HK Too right.
FG And our future looks very rosy. Can we talk in a wider context about what it is that the legal profession in this country might be able to do to better help the plight of women in other countries? Margaret, perhaps I could come to you. I mean just with your experience, you know, 20 years in work, do you think that we have become more and more insular? The City of London attracts all this money at the moment, it might attract some of the highest financiers in the world; what is it that we’re giving out, what could we do better do you think?
MC Well, I do think that we have a lot of opportunities in this country, you know, to give things like training and experience to lawyers from all around the world and again, I think in the public sector environment we have specific initiatives about bringing in and training people from other countries.
Certainly in the FSA we saw ourselves as a centre of excellence, that terminology, and wanting to give something out to other regulators around the world to share our experiences, so I think we have something of a duty to do that. Of course I suppose having just come through a huge financial crisis, you know, and not the only part of the world that has, there is this issue about whether the Anglo-Saxon model is the thing we want to export any more, but I think…
FG Do you think it is?
MC I think that question perhaps goes beyond the brief for today, but I still think that our model of regulation in this country is still very highly regarded and seen as, you know, something for other parts of the world to aspire to, especially perhaps not so much the developed world but less developed countries, and we take in here many people from overseas and train them and help them develop their own regulatory systems as well.
FG We’ll talk a little bit more about the FSA with you in a couple of moment, but if we stick with this question for the moment. Katie, what is it that we could better be doing? Do you think we must be exerting more pressure on other courts and higher courts around the world and other bodies to actually make sure that we’re really thinking about the plight of women a bit more than we are at the moment?
KG Well, I think it’s a jigsaw puzzle, isn’t it? I think when you’re looking at the legal profession, then you have to look at governments and parliaments and political parties and how they kind of reflect off each other and what we can learn, so if there are some good examples, some countries will be doing well with boardrooms or companies, or whatever, but they’ll be doing less well in their parliaments and there’s not necessarily a correlation between the two.
Some of the Scandinavian countries are probably doing pretty well in terms of gender equality and politics and the law and so on, but in others there may be less of a relationship, and Rwanda’s doing very, very well on women in parliament but probably less well in terms of other ways in which women are equally represented. So I do think we have to look at the whole picture, both at people who are making the legislation and then the people who are kind of picking up the pieces of it.
FG Are you keen to export our democracy all over the world?
KG I think we have to be humble about our democracy. You know, there are some great bits of it, and then there are some bits... I mean we don’t have an elected House of Lords which a lot of countries would think was a huge problem, others would disagree. But I think we need to have some humility if we’re to be influential across the world.
The days of Empire and preaching at other people are long gone, and I think we need to have some humility in saying we think we do [a certain thing] well, but we don’t do [something else] as well as we could.
FG Yes. Elizabeth, any thoughts on this wider world question?
EB No, not really, because I think that what we do is to start by helping those who are closest to us in our immediate environment, and to the extent that that then provides a good example and a positive example for a broader circle of people, that’s probably what most people can do.
FG Helena, you may have some thoughts.
HK Yes, I do. I had the great privilege of chairing the British Council for six years way back and it gave me a great experience of travelling, and Katie’s right about it not being our role to be telling people how to conduct and create their legal systems, but there’s a mutuality in this that you can learn from each other, and through good judicial discourse you actually end up promoting the things that I care about.
I mean for example, human rights. It is a language, everybody has their own legal systems, but what you still need are to have some templates against which we measure those legal systems to make sure that they are protecting fundamental rights, and it’s important for women, whether they’re professionals or whether they’re women in society generally, but the protection of human rights is fundamental and that’s where you have a common grammar of law.
And for me, it’s where the law becomes poetry, I mean it’s where you really can talk about high aspirations and about the purpose of law being to regulate our relationships within society and our relationships with the state, and sometimes there is no greater criminal than the state, and we have to give people tools and talk about the power of law, whether you’ve got a democracy or not the power of law to actually help change lives, and that we have a role to be the ambassadors for that wherever we get the opportunity.
FG Any questions this afternoon, there’s a form that you can fill in just under the webcast that you’re watching, and we would all love to hear from you. I think you have about 21 minutes left to get your question in so, you know, don’t wait until five-to-three and then just think 'I just didn’t get that in in time'.
Margaret, tell us a little bit about the FSA, the criticisms have been that its bark has been worse than its bite. Now you’ve moved positions is there anything that you’d like to comment on with that? Do you feel that it has served the City and the country well?
MC I do actually think it has served the City and the country well, and I’d say again that most other regulators around the world look at the FSA and admire what it has done. I mean look, I made a quip about the model of Anglo-Saxon regulation.
The financial crisis was a worldwide phenomenon. You couldn’t really correlate what style of regulation, or structure of regulation there was in any particular country, whether it was an integrated regulator like the FSA or a twin peaks regulator like Australia or Canada, you couldn’t definitely say one style of regulation worked and another one didn’t.
You know, the changes that are coming into place now with a different form of twin peaks for the UK allows a concentration on prudential regulation or consumer protection regulation in a different form, and I think that’s a great opportunity to focus on different issues there. In particular, I was on the consumer protection side and the financial crime and enforcement side. I think there’s a lot that can be done there better for the future, the FSA has admitted their mistakes of the past and it’s important now it builds on that learning experience and gets on with the new model of regulation in this country.
FG And so from a consumer’s perspective, I mean what are the changes that we will see that will answer those previous criticisms?
MC Well, a more dedicated consumer-centric financial conduct authority, which I would hope - and obviously I’ve moved on from there so I’m leaving this to other people now to take on the development - will be more proactive in its interventions, that will look more widely at what is going on in the consumer arena, will listen more to, you know, putting consumers’ views at the centre of what it does. But I mean it’s that point proactive, we’ll step in earlier.
With that comes risk, by the way, because obviously earlier interventions involve less of an evidence base, and that’s quite controversial, but we do have a moment in history now where we can change the style of consumer regulation in this country.
And a big part of that too is that tougher enforcement environment and I think, you know, that is something that I’d be very keen on developing, bringing in the criminal law in the insider dealings sphere which wasn’t a place the FSA had been before. That’s all part of that tougher approach, but you know, there are controversies around this, not everybody in the City thinks that’s the right way to approach things.
FG Insider dealing is a very interesting one, isn’t it, because as I’m sure you know, an awful lot of people think that is something that just happens all the time, there is a lack of awareness of the criminality of doing that within the City, and certainly within some of the newer funds that have come up.
Is that your experience? Are we right to just think that’s kind of what they do, they don’t care?
MC No, we’re absolutely not right to think that. Five years ago now we led the charge to do it in a different way and there is a type of market abuse which is a civil event but there is a type of market abuse which is a criminal event.
The FSA didn’t prosecute that before 2007 and that’s why we’ve deliberately gone in that direction. I think you will see, or people will see from the latest developments, from the criminal trials, from the other things that we’re doing, that that’s been taken enormously seriously. It has made people aware in the financial services sector that they really can be prosecuted for this and they really can go to prison.
And that’s a journey, that’s a journey that’s going to go on forever, it’s not just a moment of time in history, not just a bit of strategy, it’s a lifelong strategy for a financial regulator.
HK And it may be one of the positive things that will come out of this terrible period because the numbers of prosecutions, or successful prosecutions in financial crime and white collar crime is really low, and it does set up a sense in the general public that, you know, law is used against ordinary folk but there are…
FG Yes. If you rioted you’d be banged up within 24 hours.
HK Yes. If you’re fiddling your social security you’ll get done, but it you’re actually fiddling it at a much grander scale then it’s too big to be reckoned with. And that undermines confidence in law and it’s very, very important that we get it right and it’s wonderful…
MC That’s absolutely important.
HK And Margaret’s played a wonderful role in that.
MC But it’s not something that you can change overnight. As I say, it’s a journey and it will take time to do, not least because of course the criminal justice system and the civil justice system takes time to play these things through. People have rights obviously, defendants have rights, and they must avail themselves of those rights, but we’ve been incredibly dogged about bringing our cases through. The FSA has three criminal trials this year in Southwark Crown Court; the only cases that are taking place during the Olympics are the FSA’s cases.
And we have to be prepared to lose those cases and we have to be prepared to see the articles that the press write about how we’ve had a setback. That's why I say this is a strategy for all time because it is not right that serious professionals in the City should escape justice whilst the man in the street, you know, for a fairly minor event can feel the full force of the criminal law, and I’ve talked about criminals in suits and, you know, I take this incredibly seriously and we’ve put an awful lot of resource and effort into this area.
FG And it’s not a victimless crime, is it?
MC It is absolutely not a victimless crime, in affects all of us, everybody, your pension funds, your unit trusts, everything is impacted by the fact that some people have a one-way bet, and we’ve got to carry on with this strategy forever.
FG Katie Ghose, from the Electoral Reform Society, can we come to you for your starter for ten. What do you think of the reform plans to replace the House of Lords with an elected assembly? You mentioned it just a couple of moments ago but we need to talk about that a little bit more.
KG Yes. I mean simply, we think in the 21st century we should be able to elect all of our politicians rather than just some of them, so we think it’s enormously out of date. We don’t really accept any of the arguments against that; people say no, we’re going to lose the wisdom, the expertise. There is absolutely no reason why you can’t have people be elected and also bring with them expertise, we expect that of our members of parliament and, you know, expertise is also something you build up over time and politicians should be expected to bring in rich expertise from elsewhere as well.
So we’ve kind of pored over the detail but we really want to bring the debate back to a very simple question. It’s the 21st century, we’ve got a democracy, we live in a democracy, is it not right, particularly in a year when we’ll be given new rights to vote in elected mayors and police commissioners for the first time, doesn’t it seem a strange anachronism that at the same time we wouldn’t be allowed to elect legislators or people who scrutinise legislation?
FG What do you think of kind of the timeline that we’re in and the speed with which you might achieve some of your goals, fast, slow, medium, pause?
KG Well, I think anyone who’s engaged in democratic reform has to accept that some of these things take a very long time because people who have power like to hang on to it, and I think, you know, it is a real dog’s breakfast and there are huge amounts of disagreement over this now and we’ve seen a lot of people who just don’t want to see reform and democracy brought in in this way, sort of joining forces and campaigning against it.
So I think there are lots of problems ahead but we will just be doing everything that we can also to tackle some of the really legitimate points people have made. People have said hang on, what if there’s a gridlock, you know, what if you had one of your Houses saying we don’t want to go to war and the other one saying we do want to go to war?
That’s a completely legitimate important question and we think you can find ways to deal with it, as other places in the world do. Other countries have two chambers and deal with that, so we think this is all very achievable but we want to play a really constructive role in it. But we will come back to this central point that we do think we should be able to elect our politicians.
FG Would you put yourself forward? Would you want to be in it?
KG Goodness, what a question. I love doing the job I’m doing, so I’m very happy with that.
FG I think I’ll take that as a yes! Would you stand to be elected, would you put yourself forward?
HK I suspect I’m there already. I’m one of those rare people in the House of Lords who actually is a reformer. I actually do think that the House of Lords should be reformed and I’ve written about it over many years, before I went in and since, and my position hasn’t changed.
But I do think that there are a number of things. I mean first of all, the reform is about a whole set of things. For example, I actually think you have to set down what the powers of the different chambers would be, and so you start moving towards something that has to constitutionally involve writing down the respective powers, and not just leave it as some loose and woolly thing.
I think you also have to reduce the size of the Chamber. At the moment there are some 700-and-whatever peers in the House of Lords. I mean that’s ridiculous, I think there are only two other places in the world where you have a bigger second Chamber than the first, so it’s a nonsense and you’d have to find a way of really reducing the size.
And you have to really have mechanisms that don’t allow that kind of gridlock, so it involves thinking it through and I’m in favour of there being a constitutional convention. I think a simple referendum doesn’t work, of yes and no. I’m sure that people will say yes, reform it, but it’s the detail of the reform, and I think then you should have some kind of constitutional convention with the public working out what kind of parliament they want.
FG Elizabeth, would you want to be in an elected senate out there, would it interest you?
EB No, I don’t think I have aspirations for political office at all.
FG Who would you like to see in it?
EB Well, I think my colleagues on today’s panel wouldn’t make a bad start.
FG Yes, you see, you’re already canvassing.
HK That was very political. She might say she’s not political, but my god, that was very political.
FG Two questions, Elizabeth, that I think might appeal to you. This one comes from D Dennis Smith at Obelisk Legal. How can we get the focus changed from high achievers to how women can stay in the profession once they have a family or other commitment? I mean it’s something that Helena touched on a little bit; I mean you don’t have to be five stars at the top in order to stay in your job, do you?
EB No, but I think it depends on individual choice, what contribution would individuals like to make and how would they like to make it, would they like to make it on a full-time basis, would they like to make it on a part-time basis, do they like the adrenalin of frontline fee earning work, do they prefer the more cerebral academic research, very much questions of individual choice.
And I look at things from the perspective of my law firm and we do have a broad variety of roles available for people, both full-time and on a part-time basis.
FG I think that probably answers this [next] question, which is anonymous. Most law firms look to tackle the issue of women at the top by focusing on the top, but should law firms be focusing their attention at the more junior levels and, if so, what can they do to increase the number of women who want to stay in the pipeline? I only read that out because it’s awful when you send in a question and nobody reads it out, but we were delighted to get that.
We only have a couple more minutes left, ladies, and I do want to ask you a couple of questions about the future because we’ve had a very relevant case this week of the rape victim who was named on Twitter, which is the latest in a series of new technology legal blunders where everyone has said oh my goodness, where are we, and I’d like to ask all of you where you think the dangers are between the legal system we have at the moment, the new technology that’s coming in, because Naomi Gummer from Google says there is nothing that the law can do to predict the things that new technology will throw at us and I think from a lay person consumer’s point of view that can leave you kind of thinking oh, okay.
So I’ll start with you, Helena. What could we be doing better, if anything, do we just have to kind of wait and see at the moment?
HK To some extent, it’s the nature of law that it is almost always playing catch-up, and what one wants is it certainly to be catching up faster than it used to do, you know, in the old days where it took forever. But it’s almost inevitable that there will be a period where the law is behind what’s happening in general society and we keep finding problems arising.
I’m a criminal practitioner, and the fact that you can Google a case up and find out all manner of things about witnesses, about the person who’s on trial, and the judge can tell people not to do it but what people do in the privacy of their own bedroom, is very hard to monitor.
So there are difficulties around the new technology. How you restrain that sort of Twittering culture, that culture of getting things out there in Facebook and so on, is a serious issue and I think it’s going to present us with lots of very interesting problems. What the answers are, we’ll just deal with them as we always have, you know, one at a time as they come up and then try and make some kind of principle positions on them. But I think it’s challenging.
FG Elizabeth, what are your thoughts?
EB I think that there need to be clear principles which people need to understand, and if those principles are not adhered to I’m afraid I do think we need to find a way to ensure that the law is respected for the benefit of members of society generally.
FG So in a practical sense, what would that entail? I mean do you think that certainly with the curiosity of a jury and the availability of information, you know, that’s a dangerous interface, isn’t it, you can go back to your hotel room in the evening and you just do a Google search, you can find out all manner of things about what’s going on in a case. The jury have been told that they shouldn’t be doing that; I mean what else realistically can you do until, you know, you find out that something like that has jeopardised a trial?
EB Well, I suppose you can think of more enforcement mechanisms, which is people stay together in a confined environment with no access to technology, with no access to telephones. It is very difficult if there are people who are determined to circumvent the rules.
Sometimes however clearly we think we’ve given instructions... we’ve all had experiences I’m sure where we’ve given what we think is a very clear and limited instruction and someone simply has not understood it in the same way because they have thought that well, I’m not doing this to be negative or malign, I think it would be jolly helpful if I could just check this point, or hmm, don’t I remember that there was an article there about something, perhaps that will help serve my decision making, and it’s getting the clarity of the message and making sure people understand it.
MC But I think the Attorney General has taken this very seriously, these couple of cases where there’s been an abuse, you know, and I think that visible enforcement against individuals who do go too far here is absolutely necessary, but I think, you know, we are aware, as you point out, that communications are not going to go back to the old days.
One of the things we find very difficult, certainly with the FSA’s processes, is obviously we have a private disciplinary process that only becomes transparent at a certain stage and we are very, very cautious to guard against any leaks.
But journalists make a point of getting information on parties with whom we’re involved in disciplinary process, sometimes think it’s appropriate to front run the outcome of things so we can’t control everything that is going on. I’m very much in favour of as much transparency as is possible in any aspect of law or in any aspect of disciplinary process, but again that can be quite controversial.
FG And do you think that there does need to be a little bit more responsibility from the people who are providing the technology, because I think in the case of the rape victim who was named it was described as unintelligent re-tweeting, and actually perhaps there are a lot of people on Twitter who… it’s not that they’re unintelligently re-tweeting, it’s just that they don’t fully understand exactly what it is that can then happen.
You know, does there need to be a clearer kind of set of guidelines?
HK Well, one of the problems is, I don’t know because I haven’t looked at it closely enough, but was this being done in a malign way which was to breach the normal anonymity that covers a victim of a sexual crime in order that she can live her life without being pointed to as the woman who was raped? Or was it somebody who didn’t know that there were rules about that who then starts twittering and then it gets passed on to somebody else, and again it’s Chinese whispers. Was it mistaken or was it deliberate? And I think that one’s responses…
FG Hard to tell in under 140 characters.
HK Absolutely. But there would be different responses, and it is very difficult to find the kind of rules that deal with all of them. I mean, I think that the internet is presenting us with a lot of different problems and that’s one aspect of it, but the internet presents it in many different ways.
The idea of being able to constrain new technology is a real challenge for law, and particularly when we’re talking about freedom of expression and so on, so there’s these clashes of legal principle and democratic principle. We’re going to have to really work very hard in coming years about how far we seek to encroach upon freedom of expression in order to secure justice and in order to secure democracy and in order to do all manner of things, and I think we’re going to have to work rather hard to find a way through that thicket.
FG Yes. And sometimes it’s difficult, isn’t it, in the modern world to realise exactly how many people might be listening to what you’re saying, noticing what you’re doing. Are we all sure we’ve been okay for the last hour, because it’s gone out now? I hope that we have provided an informative hour and perhaps sometimes an educational hour for you with this IBA webcast, so I’d just like to say thank you to all the ladies who’ve joined us this afternoon, and thank you very much indeed as well for sending in your queries and your questions. It’s been a joy, an honour and a privilege.