News Stories

General: 03 June 2014

Women and The Law

Women in the Irish Legal System:

“A learned girl is one of the intolerable monsters of creation”

–Saturday Review, 1869

Introduction.

Good evening everybody and welcome. In the interests of time I will save the usual housekeeping and thank yous until after my Respondents have spoken. I would however, like to extend a warm and special welcome to our guests this evening; Supreme Court Justice Ms Mary Laffoy, High Court Justice Mr Michael Peart and qualified Barrister and Senator, Ivana Bacik–welcome to you all.

I am here to speak to you tonight about Women in the Irish Legal System and I propose to break that presentation up into 3 sections. I will open by addressing some of the major “firsts” as achieved by women before moving on to examine the difficulties that have been and still are faced by women in the legal system today. I will then conclude with some of my own thoughts on the current and future position of women in the legal profession.

The Firsts:

“ I believe that anyone can conquer fear by doing the things he fears to do”

–Eleanor Roosevelt

In the course of 2016, a historic event is going to take place within the four walls of this very room. As is tradition, the portrait of the retiring Chief Justice will be hung among the most prominent of their predecessors. But for the first time in Irish history that portrait will be of a woman, our current and first ever female–serving Chief Justice, Ms Susan Denham. Not only is Judge Denham’s attaining our highest judicial position a monumental personal achievement, it is also a landmark for all women in the legal system that highlights just how rapidly women have progressed in their short time as part of the legal profession. While tonight’s discussion will primarily centre around those who have practiced as barristers some of the information applies just as equally to female solicitors and I will make reference to that as I go along.

The oldest law school in the country, King’s Inns began training law students in the year 1541 on the site where the Four Courts stand today but it was nearly 400 years before women were permitted to cross the threshold of this historic institution as students. On the 1st of November 1921, Averil Deverell and Francis Christian Kyle made history by becoming the first 2 women to take their call to the Bar, alongside 18 male classmates. Not satisfied with being the first woman to take her call to the bar, Francis Kyle went one step further and became the first woman to receive the John Brooke Scholarship, the top Irish students’ law prize, having come first in the Bar Entrance Examinations. The call of these 2 women made headlines not only in Dublin and Belfast but in London, New York and India and it marked the beginning of women’s progression through our legal system. From that date, the number of women entering our legal system rose; slowly at first, indeed it’s only in the last 25 years that there are in excess of 100 women in practice at the Bar. However, it is only in the last 10 to 15 years that that number has increased three fold, and continues to increase year on year.

Despite the increase in numbers of women entering the legal profession not only as barristers but also as solicitors from that date, it was 1963 before women made headlines again. It was at this time that Eileen Kennedy, a solicitor from county Monaghan became the first appointed female judge–reportedly packing out court rooms for days with people coming to witness the novelty of it all. Unfortunately, it remained a novelty to have a female judge in the years that followed and it was not until 1980 that another woman was appointed to the bench. At that time the late Justice Mella Carroll became the first woman appointed to the bench of a superior court, taking her seat in the High Court. But this wasn’t her only “first” achievement. Having taken her call in 1957, she became the second female to take her call to the inner bar; second only to Frances Moran, who took silk in 1947 but never practiced as a Senior, she left the title of first practicing female Senior to Mella Carroll. Justice Mella Carroll was 11 years a Superior Court judge before another woman joined her on the bench, when in January 1991 Justice Susan Denham, as she then was, joined her as a judge of the High Court. However, that partnership was relatively short lived as Justice Denham was appointed as the first female to sit as a judge of the Supreme Court in December of the following year. Chief Justice Denham was called to the bar in 1971 and was called to the inner bar in 1987. She has had a highly distinguished career as not only a barrister but also as a judge, being part of some the State’s most significant decisions. But it was on July 25th 2011 that she solidified her place in history, by becoming the first ever female appointed to the position of Chief Justice.

If these are the achievements that can be, and that are being attained by women, why are we still outnumbered by men at the bar? And further, why are we so vastly outnumbered by men at the inner bar–and are there common factors which are contributing to this gender imbalance? I propose to address the first of these questions in a general sense as I go through the rest of the presentation but I will address the latter first, the answer of which will lead me on to some of the other facts that affect this gender imbalance. 

The Difficulties:

“In particular the State recognises that,  by her life within the home, woman gives to the State a support without which the common good cannot be achieved”.

–Article 41, Bunreacht na hEireann

An article was published by the Irish Times in December 2013 which attempted to address the latter of those two questions, the fundamental issue of why women are so vastly outnumbered by men at the inner bar. One of the statistics that article gave was that women make up less than a quarter of appointments to the inner bar over the last 10 years, with only 41 of the 166 BLs appointed to the position of Senior Counsel in that time. Of the 2269 practicing BLs, 43% are female and 45% of BLs with less than 7 years’ experience are female. These figures are interesting when we consider that it is not unusual for women to outnumber men when it comes to the time for a class to be called to the bar; this years class is 60% female. There still remains a much wider gap between men and women at the inner bar, where over 83% of 354 silks are male. So what is the difficulty that evidentially exists for women when making the transition from Junior to Senior?

It appears that the transition from Senior to Judge is not as burdensome as the jump from Junior to Senior, something that can be seen when you look at the figures for the number of women appointed to the bench, over the last 25 years, those numbers are constantly growing. A number of female judges appointed in the last 20 years appear to have spent less time as Seniors before appointment to the bench than they did as Juniors before becoming Seniors.

Examples:

Ms Justice Mella Carroll. Called 1957. Silk 1977, appointed to High Court 1980.

Chief Justice Ms Susan Denham. Called 1971. Silk 1987, appointed to High Court 1991.

Ms Justice Mary Laffoy. Called 1971. Silk 1987, appointed to High Court 1995. Supreme Court 2013.

Ms Justice Elizabeth Dunne. Never took silk, appointed a Circuit Court judge in 1996. Supreme Court 2013.

The appointment of Justice Dunne and Justice Laffoy is hugely significant, as alongside Chief Justice Denham they create an opportunity for an all female divisional sitting of the Supreme Court, for the first time ever.

The difficulty seems to remain when it comes to jumping from Junior to Senior–but why?  In The Irish Times article, Senator Bacik described that female specific problem as “the sticky floor encounter”. The trend seems to be that men and women progress at roughly the same rate until they reach their mid 30’s/early 40’s. Without being too general, it is at this point a number of women then concentrate on raising their families and having children and their career begins to slow down. But the time out that is taken to accommodate this life decision is not accommodated for by the career–the way it may be in other professions.

For example, maternity leave in a state body or public company; (in theory) you come back to the job you left (in today’s economy that’s disputable!), or the paid equivalent. At the Bar that’s not necessarily the case. The nature of the profession is that the longer you’re gone the less you’re missed and that creates a real problem for women if/when they find themselves in a position of needing or wanting to take a break to facilitate family life. The Bar council has attempted to address this issue in recent times by implementing a maternity leave policy which grants female barristers a break from their library fees for the portion of the time they will be absent. It doesn’t seem to be a solution to the problem but it does appear to be more acceptable now for those making the decision to take that break to do so without the fear of losing work from instructing solicitors.

However, there seem to be a more simplistic concept that could explain this gender imbalance without reference to the contentious issue of maternity leave and that is the concept of stability. Although taking silk is a prestigious appointment (often associated with an increase in pay) for many, it seems that appointment is like starting all over again. The fact is, there are a number of Seniors who will price their services out of the market norm resulting in their bread and butter work going to their Junior colleagues. There seems to be no middle ground, no safety net available while you make that transition–and evidence suggests that women are more inclined to seek a career that is more stable. For example, of the 12 appointees to the Attorney General’s office last year, a salaried position with the possibility for advancement, 10 of those 12 were women. The evidence seems to suggest that, for the most part, women seem to favour jobs which will give them a suitable work–life balance, and the Bar and the legal profession as a whole, seem to be providing for that more and more.

Although it is arguable that it is these major issues that are the only ones actually impeding women’s progress in the legal system, surveys carried out indicate that there are smaller battles between men and women, being fought on a daily basis at the Bar. The most widely reported issue of contention in this regard is women being on the receiving end of inappropriate comments. Now, when you consider that law is a professional environment in which great care must be taken with the use of language, it is unthinkable that in 2014 this is still an issue. 36% of women surveyed for the Gender In Justice report, of which Senator Bacik was a co author, stated that they had been on the receiving end of inappropriate comments made by men. While that is the most common discrimination faced daily something that I contend would have much more of an effect on working life at the Bar is the concept of network exclusion. The idea of ‘golf course business’ is reportedly still evident, which can result in women not getting certain work especially in corporate circles, as they are seen to be more suited to the so called “softer” areas of practice such as family law. There’s a lot that can be said in relation to that alone but I think for time keeping purposes that is something that may be best left addressed on another day!

That same Gender In Justice survey reported that 1 in 5 women had experienced one of these forms of discrimination but fewer than 10% of men surveyed have experienced any of them. That just goes to show that in 2014 when it is presumed that there is equality in employment that that presumption is more inaccurate then we would like to admit. However, I think it is important to stress that gender inequality is not something that is confined to the legal profession and is evident across the board in all professions. And unfortunately, I think it is something that will never be fully eradicated from the work place.

I have to stress that the imbalance may not be strictly related to the issues that I have just outlined, although there is no denying that they do play a major role. However, it is arguable that this gender imbalance could be related to something as obscure as the economic downturn. A number of the firsts discussed at the beginning of the evening were achieved during a time of economic prosperity so it is arguably a possibility that the gender imbalance not only at the inner bar but also at the outer bar could be in part due to the economic down turn, especially when we consider that financial stability is something which is attractive to women in their profession.

The Future:

“There will never be complete equality until women themselves help to make the laws and elect law makers”

–Susan B. Anthony

The purpose of this evening’s presentation is not to turn such a topical subject into a battle of the sexes . My aim is not to take away from the endless list of outstanding achievements of the men of the Bar and in the legal system as a whole; it is merely to highlight the importance of what women have achieved in a relatively short space of time as part of our legal system. We have had less than 100 years presence and I think it is fair to comment that we have achieved a huge amount in that short space of time.

Despite difficulties in the beginning we are now at a stage where some of the most well–known judges and Senior Counsel of this country are women. Where it once was a novelty to have a female judge it is now a norm. Positions, that for years were held exclusively by men are now being held by women, positions such as Attorney General held by Senior Counsel Máire Whelan; Director of Public Prosecutions; Claire Loftus, Chief Stae Solicitor, Eileen Creedon and President of Ireland, previously held by Mary Robinson and Mary McAleese respectively, both practicing barristers prior to their appointment as President. I think Mary Robinson summed up women’s reaction in Ireland quite well upon her election to the office of President when she said:

“I was elected by the women of Ireland, who, instead of rocking the cradle, rocked the system”.

That statement rocked the country and gave massive impetus to progressing  the rights of women who wanted the ability to choose whether they stayed at home to rear a family or to go out and work. It gave them the encouragement to realise that they could do both and that they did not have choose between the two. It gave them the freedom to realise they did not have to be exclusively defined by Article 41 of the Constitution.

There are a whole host of circumstances, motivations and issues which contribute to the gender imbalance within the Irish legal system, and all of these must be considered in turn before we can arrive at a conclusion as to why such an imbalance exists. Does gender imbalance strictly mean more men than women or does it beg the question as to why there are more men than women? – is it because policy, economy and social ideas suggest that the Bar is a more favourable place for men than women? It is next to impossible to say and maybe it is a combination of all of the above.

Something that is quite interesting to consider is the fact that the advancement of the rights of women at the Bar seems to have been quicker than their advancement publicly and in a political sense. While women are fast becoming equal in number to men not only at the Bar but across the board in the legal profession, the same situation cannot be said to be seen in politics, where men outnumber women in their hundreds. When we consider the fact that there are now gender quotas in government which are aiming to increase the number of women in politics, it is nothing short of appalling that in 2011 only 15% of Ireland’s TD’s were women. In the year 1992 that figure was only 1% lower, so when we compare the gender composition of the Bar to the gender composition of the Government, it appears that we are doing far better for our gender without the need for these gender quotas and incentives to get involved.

In the coming years it is predicted that women will outnumber men at the Bar and in reality that was bound to happen, as the legal profession became more accessible to women. For the most part it appears that women’s presence in the legal system is no longer a novelty but a norm, and gentlemen, for the sake of an easy life I would suggest you all just get used to that fact! And on that point, I will leave you to consider the following quote:

“In a society where the rights and potential of women are constrained, no man can truly be free. He may have power but he will not have freedom”.

–Mary Robinson