A 2021 study from the University of Surrey School of Law looking at gender and seniority of counsel before the UK’s highest court[1] (here) has shown that women are under-represented as leading advocates, especially in major civil and Business and Property Courts litigation before the Supreme Court. Whilst there are some reassuring findings within the study, particularly the overall positive trend in increasing representation by female counsel, there remain stark variations between areas of law.
Seemingly prompted by that study, Dame Sue Carr, the first ever Lady Chief Justice of England & Wales has, within a month of being sworn in, published guidance aimed at redressing the gender balance by providing junior counsel in general, and female junior counsel in particular, better opportunities to advance oral argument in courts and tribunals. In recognition of the importance for career development of being given the opportunity to present legal arguments to the court, the guidance is cross-jurisdictional, being co-authored by the President of every significant judicial division, including the Senior President of Tribunals.
The guidance here is now three months old, although, anecdotally, it seems many Coroners are not yet aware of its content. Whilst coroners don’t (yet) have the status of judges so as to fall under the Lady Chief Justice’s authority, it is nevertheless guidance from the highest judicial levels aimed at all judges and tribunal chairs, and so something of which all Coroners should want to be aware.
The guidance, in three succinct paragraphs, states that:
Allowing junior counsel to participate in oral argument supports their continuing development as advocates. There is also anecdotal evidence, supported by empirical data from a Supreme Court study, that women are under-represented as leading advocates, especially in major civil and Business and Property Courts litigation.
It is desirable therefore to give junior counsel in general, and female junior counsel in particular, better opportunities to advance oral argument in courts and tribunals.
It is acknowledged that this will not always be possible, and will depend upon the nature of the argument and the length of the hearing. However in all suitable cases involving leading and junior counsel, particularly where junior counsel has been heavily involved in the drafting of the written argument, judges will be expected to ask whether a speaking part for junior counsel has been considered, and will generally be amenable to both junior and leading counsel addressing the court or tribunal (junior counsel may for example, deal with intermediate points in the principal argument). In cases where this issue is likely to arise therefore, the parties should consider it in advance of the commencement of the oral argument.
Any Coroner hearing a matter in which an Interested Person is represented by both leading and junior counsel should perhaps take the opportunity to ask whether a speaking part for junior counsel has been considered, and so openly encourage being addressed by junior counsel in accordance with this guidance.
Footnotes
[1] Barczentewicz, Mikołaj (2021) Gender and seniority of counsel before the UK’s highest court. 1 March 2021, SSRN here