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The Problems With Extended Hours

The current shadow of ‘extended hours’ looming over the profession is a clear and (on reading Susan Acland-Hood, CEO of HMCTS’s blog of 9th July 2020) seemingly inevitable measure which the crown courts intend to utilise alongside new/Blackstone courts to deal with the backlogs in the justice system in the current public health crisis. Let’s be clear, these backlogs are not caused by the pandemic. In fact, the backlogs were there already as a result of ongoing under-investment and neglect of the criminal justice system, wholesale, for years. Of course, that is a whole other blog post, for another day.

Today, I want to talk about what ‘extended hours’ will really mean for those of us at the coal face. I have been a solicitor as well as a barrister. I know the exhaustion of being duty solicitor overnight, wiped out by constant interruptions by phone calls from police stations through the night, even on nights when an actual attendance wasn’t needed. (I still ponder the rationale behind the phone calls to inform you that your client would like to speak to you but can’t be brought to the phone because they’re too drunk/violent etc.) I digress. The point is that solicitors can often end up working all day in court, in the office all evening catching up on the work not done all day and then be actively working again overnight on duties.

We at the Bar, as I now am, have similar issues. All day in court. Conferences at the end of the day. The drafting of arguments, skeletons, applications, all to be ready to see our clients at 9.30 and be expected to hit the ground running at 10am in court. For the most part, we are only paid for the court part. The reality though is that all the other work, the unpaid part, has to be done. And that inevitably happens during our evenings, late at night after the children are in bed and worse still, often, over the weekend.

The point is the same and the impact felt whichever side of the profession you are on. We work long stressful hours, motivated by our commitment to our clients, to our cases and to our professional integrity to do the best we can at all times. We regularly run on fumes.

Now, add in the extra dimension of family life. Before you say it, yes, I know there are many men who play their part in helping with childcare and homelife. But the fact is, even in 2020, many more women still carry the lion’s share on a day to day basis. Various studies have concluded that throughout lockdown, it has been women shouldering much of the burden of home schooling and additional childcare responsibilities, meaning that for many, capacity is now more stretched than it has ever been. Not forgetting the burden on lone parents and members of the professions who have other caring responsibilities.

We are all waiting to hear what this ‘extended hours’ proposal is actually going to look like. Well, here’s a thing to note for our professional organisations, the senior members of the judiciary, the HMCTS staff involved in formulating it. There is no magic childcare/other carer tree. No one (except us, it seems) is going to commit to constant uncertainty in their working hours and unsocial hours (for no extra pay, just for good measure) to mind our children while we roll up our sleeves to help clear the backlogs.

The reality is that women, in the main, are going to be the ones facing the invidious choice between working or not. Women are already disproportionately affected by these competing demands, and will be even harder by the addition of ‘extended hours’.

A comparison of the position of criminal barristers to that of ‘other professions managing flexible working’, is at best a failure to appreciate the realities of the way our practices operate. At worst, it’s disingenuous. Our diaries are unpredictable. Cases are prepped and then pulled by the court for reasons unclear. Hearings are listed at extremely short notice and short shrift given to reasons why the advocate may need an alternative listing. When a trial comes in, we will have to choose to cover it, no matter what the cost to our family life or wellbeing, or return it and write off the (unpaid) lost hours of our lives on prep. There are no fixed hours. There are no fixed days. There is no fixed pay. Our daily working lives are a heady mix of variables which already make planning for the rest of our lives a mind-boggling challenge. Further uncertainty will risk many slipping towards professional and personal burn out.

This policy will inevitably be discriminatory for women if the realities of their work/life balance are not considered. So, on behalf of WICL, on behalf of all women in the profession, we urge HMCTS to consult meaningfully on the way forward. Take ideas and suggestions on board. Recognise the discriminatory impact of what extended hours will actually mean and find another way. We all want the same thing. Let’s find a better way to achieve it.

- Ravinder Saimbhi is a barrister at 33 Bedford Row.

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