Bullying, harassment and sexual harassment disproportionately affects more junior barristers. It tends to be done by those who have power to the less powerful. Not only are junior barristers more likely to be the recipients of this behaviour: we are less likely to report it, for fear of jeopardising our career (amongst a myriad of other reasons). This unhappy dynamic has been spelt out loud and clear by the Review but in truth, it is something that the profession already knows.
I would like to thank both Baroness Harriet Harman KC and the Bar Council for the production of this Review. I don’t doubt it may make uncomfortable reading for some and its proposals will rightly be the subject of much discussion. From a junior perspective, the Review is driving to make the profession a more inclusive and happier place to work, which should benefit both our professional working lives and the rule of law. There are certain themes within the report which I think will be particularly relevant to the junior bar.
Cultural change needed
Firstly, to make an obvious point, it is very difficult to prevent bullying, harassment and sexual harassment if the victims of this behaviour are not empowered to speak out. To enable this, there needs to be both a cultural change in perception and also changes in processes and procedure to make the system fit for purpose. The Review has numerous recommendations to help with this issue. If you are a barrister and are a victim of this behaviour, the first port of call will usually be to tell a colleague. Regrettably, our current system would require the recipient of this information to report it to the BSB per rC66. The Review proposes that barristers who act as confidents, for the purpose of giving advice and support to the victim, will no longer be under the duty of disclosure (recommendation 9).
The Review also explains how leadership within the profession need to lead by example to embed a ‘speak up’ culture. Further, the Review proposes a ‘Commissioner for Conduct’ for the Bar (recommendation 36). An external position like this could help address some of the root causes of why a junior barrister may not speak up. It is proposed the Commissioner could give advice and support to the victim of such behaviour, the benefit being they will know what advice to give and will be external to chambers/circuits. In certain circumstances, a junior barrister who has been victim of harassment may have a legitimate concern about the fairness of their chambers’ internal investigations into such issues. The Commissioner could support chambers' investigations and advise on chambers' policy. One would hope this would improve processes and increase the perception of fairness.
A further barrier to reporting is that there is a perception amongst juniors, which the Review confirms to be correct, that being a complainant in BSB proceedings is a difficult process. In recognising this issue, the Review recommends a specialist support service for complainants and respondents involved in BSB proceedings concerning bullying, discrimination and sexual harassment.
Judicial bullying is something that I discussed at the Bar Council's Bar Conference. I am not surprised that the Review “received abundant, disturbing and compelling accounts of judicial bullying” (Review para 290). At present, the main ways to raise bullying or harassing behaviour by a judge are with the judge directly, raise with it with the leadership judge of that judge or make a formal complaint to the Judicial Conduct Investigations Office (JCIO). The Review concludes that all of these avenues have significant downsides. Fundamentally, it is a matter for the Lady Chief Justice and her office to consider how to address the issues raised by the Review. Nonetheless, the Review does make helpful proposals which would be both effective in assisting the judiciary assess and deal with the problem.
Path to lasting change
One of the proposals is that the judiciary should consider participating in Talk to Spot, a secure online tool which supports anyone working at and around the Bar to confidentially raise concerns about inappropriate and abusive behaviour. It is something that has been in use since 2019. This would hopefully assist senior judges to recognise patterns and lead to a meaningful strategy to address them. The Review also proposes that the 3-month complaints time limit to the JCIO is arbitrary, too short and recommends its abolition (recommendation 32). The Review suggests the proposed Commissioner role could attend court for the purpose of observing judicial behaviour (recommendation 31). They have a similar role in Scotland and this would take pressure off the individual barrister who had reported the behaviour.
To finish, this was an independent review, on a scale that the Bar has not seen before and I hope that it can bring about lasting change in the profession.