An independent review of bullying, harassment and sexual harassment of barristers in England and Wales has recommended decisive action to protect the reputation of the bar from the stain of misconduct.

Baroness Harman KC

The report, commissioned by the bar’s representative body and led by former Labour law officer and solicitor Baroness Harman KC, recommends:

  • Mandatory anti-bullying and anti-harassment standards, policies and training.

  • A new commissioner for conduct to be appointed by the Bar Council.

  • Overhaul of the complaints system, including introducing time limits for processing cases, support services and mandatory vulnerable witness training.

  • Treating as misconduct all sexual relationships between barristers or employees with a pupil, mini-pupil or anyone undertaking work experience in their chambers.

  • An independent element in the arrangements for dealing with judicial misconduct.

Responding to the report, the Bar Council’s chair Barbara Mills KC said:

We commissioned this review because we know there is a problem. It is clear that decisive action is required. We will consider these recommendations carefully and develop a plan for change.

On the basis of the many conversations I have had with the senior judiciary and the work they have already undertaken in this area, I am confident that we will work together to bring about necessary change. This is a once-in-a-generation opportunity for the Bar to change its culture — and for all of us that change starts now.

Introducing her report, Harman said:

Those who are called to the bar are called to more than legal competence. They are called to the highest of ethical standards: honesty, integrity and impartiality. Such ethical standards are owed not just to their clients, to each other and to the courts but to our system of justice. Respect for the rule of law depends on it. But when it comes to bullying, harassment and sexual harassment, the bar does not always uphold those standards.

Those who engage in such behaviour, whether they be barristers, judges, or clerks, make a misery of the lives of those who are subjected to it. Such misconduct stunts careers, drives people out of the profession and casts a stain on the reputation of the justice system. The Bar Council, to its credit, has recognised the gravity of the problem and is determined to tackle it.

The problem is the culture of impunity for those at the top who commit misconduct. Those who are subjected to it feel unable to complain. All the jeopardy is on them. Those in powerful positions whether at the bar or in the judiciary who choose to engage in bullying, harassment or sexual harassment can be pretty confident that nothing will be done about it. And that is what must change. The jeopardy must change from the victim to the perpetrator.

She continued:

The bar is highly competitive which ensures work of the highest quality. But it also means those seeking career progression in this competitive environment dare not complain for fear of losing out by becoming known as a troublemaker…

Progress at the bar often depends on a junior barrister being taken on by a senior barrister to assist in his or her cases. But those close and important one-to-one relationships allow for predatory abuse.

The bar is a hierarchy. It needs to be to enable it to deal both with minor matters and with matters of the utmost seriousness including cases that can result in a life sentence or where millions of pounds are at stake. That means the bar needs both very junior and very senior members and everything in-between. But this results in a great power imbalance which enables that power to be abused…

The circuits (particularly outside London) are small, close-knit networks with barristers appearing regularly against each other and in front of the same judges. This small world can be highly mutually supportive, but it also makes it difficult to complain. A junior barrister will fear if they complain about a barrister who is more senior on their circuit that everyone will immediately know, they will be marked out as a troublemaker and their work will dry up. A barrister will fear complaining about a judge they know they will be appearing before regularly, worrying that it will only exacerbate the behaviour and jeopardise their clients’ cases…

The bar deals with evidence rather than rumour or supposition. And it is steeped in the doctrine of innocent until proven guilty. Both are essential principles of our law. But that can lead to barristers being reluctant to report concerns about a colleague at the bar where they do not have first-hand evidence. Avoidance of the risk of passing on an unwarranted report of misconduct reinforces the bystander culture where suspicions are widespread, but no-one has reported. The aversion to risk of an unjustified report leads to an even greater risk of allowing misconduct to persist.

Turning to the judges, Harman said:

The judiciary commands enormous respect from the Bar. Judges are the pinnacle of our legal system and admired around the world. They are afforded deference. This gives impunity to those judges who bully or harass.

Judges have the responsibility to manage cases in their court and have a commitment to high standards at the Bar. But that enables some judges to cross the line from effective case management into bullying and harassment…

It is surprising that, despite concerns being raised for many years, the judiciary has yet to plainly and explicitly acknowledge that there are some judges who act in a way which undermines the reputation of all those in Judicial Office by bullying barristers in their courts. It is imperative that the judiciary now publicly acknowledge that there is a problem of judges bullying barristers and that they make it clear that they will be taking action to address it.

Harman believed there was both a culture of denial and a culture of excuses:

Some senior barristers are dismissive of the suggestion that there is any problem at their chambers if they have had no instances of the most egregious behaviour such as sexual assault or shouting at juniors. They fail to recognise that micro-aggressions such as ignoring or being dismissive to someone, sarcastic remarks, not including someone in invites to events with clients, repeated requests by a KC to a junior to go for a drink alone with them, may also meet the threshold of bullying, harassment or sexual harassment…

Bullying, harassment or sexual harassment cannot be excused or justified with commonly proffered arguments such as:

“You have to be robust to be at the bar. If you can’t stand the heat, get out of the kitchen”. Or

“It’s your duty to your client to attack the other side, if they’ve got a weak case or a weakling barrister”. Or

“It’s not bullying, it’s just robust case management”. Or

“Judges have to kick off to keep standards up”.

Nor can there be any place for excuses such as “it was just a fleeting moment”.

What’s to be done?

“Decisive and radical change is needed to effect a reset of the culture,” Harman said. “There needs to be clearly signalled insistence on standards, a preparedness to support those complaining and a determination to end the careers of those who commit misconduct.”

She continued:

It must be understood by all in chambers that pupils and junior clerks are there to work, not for the sexual gratification of their seniors. There should be a new rule that it will be serious misconduct if a tenant in chambers has sex with a pupil in that chambers, with appropriately tough sanctions.

It should be made clear that it is serious misconduct to trawl for sex on LinkedIn. Women barristers and those seeking pupillage should be able to use it without being subjected to predatory trawling. LinkedIn is meant to be a professional network, not a dating app.

Anyone who hears rumours or observes something that might constitute serious misconduct should report it. The default position must go from saying nothing because “it’s not my place to get involved”, “it might just be a rumour” or “I don’t have firm evidence”, to reporting anything that might constitute serious misconduct. The culture of collusive bystanding needs to be recognised, called out and ended.

The complaints system needs a complete overhaul, with support for complainants and time-limits to end the problem of cases dragging on for years.

Strong sanctions are needed to send the message that things are going to change, that serious misconduct will not be met with a quiet word or a brief suspension but will be career-limiting or career-ending. All at the bar know that if they engage in dishonesty they will not be able to continue in the profession. It is a requirement to be honest. The same must go for those who engage in bullying, harassment or sexual harassment.

A major disincentive to complaining is that even if the misconduct is proved it may incur only a minor penalty. The concern is that the perpetrator will return to work as usual and the complainant’s working life will be untenable. Deterrent sanctions are necessary both to deter the misconduct and incentivise the complainant…

It must also be made clear to all that judicial bullying, harassment or sexual harassment will be dealt with by removal from the bench.

To ensure that changes are implemented, that advice is available and that standards are set high and upheld, I propose a new office of the Commissioner for Conduct who will be appointed by the Bar Council. Improving behaviour cannot rest only on the slight shoulders of the victims of misconduct.

Comment

It is gratifying to see the Bar Council’s commitment to change. The inns of court and individual chambers can also be expected to accept Harman’s reforms.

But many of her recommendations are aimed at the Bar Standards Board, which regulates the profession under the supervision of the Legal Services Board. It remains to be seen whether they will support all the review’s proposals.

Other recommendations are for the proposed new conduct commissioner to implement. Clearly, those will depend on the abilities of the person appointed. There is also work to be done by those who train students for the profession and the disciplinary tribunal.

Perhaps the most sensitive recommendations off all are aimed at the judiciary. Harman says:

At present, the appropriate sanction after a finding of judicial misconduct is decided by the lady chief justice and the lord chancellor. There is a widespread perception that the lack of independence in sanction decision-making contributes to unduly lenient sanctions and this too acts as a deterrent to the making of a formal complaint. I propose that an independent person should be added to the sanction decision-making panel.

There is certainly scope for greater openness in the work of the Judicial Conduct Investigations Office. Though more information is now published, there are still basic errors — notably failures to provide enough information to identify the office-holder whose conduct has fallen short.

The lady chief justice is rightly committed to preserving judicial independence. But that depends on allegations of misconduct being dealt with more effectively than currently appears to be the case.

Updates at 1000

The lady chief justice, Baroness Carr of Walton-on-the-Hill, welcomed the Bar Council’s focus on what she described as this important issue.

She said:

While the majority of judges behave professionally and courteously, Baroness Harman’s review refers to too many examples of judicial bullying. Such behaviour is unacceptable and should have no place in our justice system.

I am clear that the senior judiciary does not seek to excuse or minimise bullying by judges. I am absolutely committed to a modern, diverse and inclusive judiciary that upholds our values of integrity, fairness and respect to all.

“We have clear standards of behaviour expected from all judicial office holders, which is supported by training and support for judges at all levels, particularly those with leadership responsibilities. We have been focussing on judicial conduct in and out of court for many years.

But we know we have more to do. We are currently reviewing the routes available to raise concerns and resolve issues and working to challenge and change unacceptable behaviour. We need to give those who experience bullying, harassment or discrimination the confidence to speak up knowing that something will be done and that their own career will not suffer.

I look forward to continuing to work with the Bar Council on solutions. We share the same goal of ensuring our justice system is underpinned by a culture where all legal professionals can thrive, grow and maintain the highest standards of integrity.

The Bar Standards Board director general Mark Neale said:

We have been wholly supportive of this review. We also know we need to do better ourselves.

We recognise the concerns that the report raises, and we are already implementing changes, and consulting where necessary, to improve our enforcement processes. We must also provide more support to those with the courage to come forward and make reports. We fully accept that pupils and barristers will be much more willing to come forward to report harassment if they are confident that they will be sensitively supported through a robust and transparent enforcement process with no unnecessary delay.

We will now fully review the findings and recommendations and work with the profession and other stakeholders to help improve the culture at the bar.

Richard Orpin, interim chief executive of the Legal Services Board, said:

The independent review of bullying and harassment at the Bar reveals behaviour that is unacceptable and has no place in the legal profession.

We recognise the courage it takes for people to speak out about these experiences. All legal professionals should be able to work with dignity and respect. Regulators and sector leaders must act quickly and decisively to improve standards, address misconduct, and foster a safe culture across the profession.

The Legal Services Board was already

  • introducing new requirements for regulators to make sure that legal professionals understand and uphold their ethical duties

  • consulting this autumn on how regulators can encourage diversity in the profession and create inclusive workplaces

  • monitoring the Bar Standards Board against agreed undertakings designed to deliver improvements in its performance, including making its enforcement process fairer, faster and more efficient.

Solicitors’ representatives also welcomed the report. Mark Evens, vice-president of the Law Society, said:

While this review focuses on the experiences of barristers, its terms of reference cover the whole ecosystem around the bar. Bullying, harassment and sexual misconduct are unacceptable in any workplace, and we reaffirm our commitment to a zero-tolerance approach within the solicitors’ profession.

Andy Slaughter MP. chair of the Commons justice committee, added:

Today’s publication of the independent review led by Baroness Harman KC sets out a series of strong, clear-sighted findings and recommendations which must act as a watershed moment. This thorough and wide-ranging review exposes a serious and worrying degree of misbehaviour and malpractice.

Baroness Harman has been fearless in her investigation, and it is right that the Bar Council has welcomed the outcome and pledged to act on the recommendations.

Both professional standards and integrity are high across the bar, but any areas of malpractice are a cause for concern. It is not only in the bar’s interest, but the wider interest of justice that the types of misconduct revealed are acted upon and eliminated.

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