School of Law

Lady Carmichael

 

I came to Glasgow University in 1986, having left school from fifth year.  That hadn’t initially been my intention, but I had put in an application, unsure whether it would be accepted, as my 17^th birthday wasn’t until after the start of the university term.  I was accepted, I won a bursary, and I achieved the higher results needed, so it seemed to make sense to leave school. 

In retrospect, I think I was very young, and not particularly confident, streetwise or mature.  The extent of my academic engagement varied.  I started well, and ended reasonably well, but in the middle was fairly comprehensively distracted by other interests, particularly music.  I played keyboards, not very well, in a blues band.

A particularly cherished part of my life as a student was studying comparative law with Dr (latterly Professor) Esin Örücü.  At that time a law student could take the majority of her honours courses in the same subject area.  Comparative law offered the opportunity to go abroad for four weeks at the start of the senior honours year.  A small group of us went to Erasmus University in Rotterdam for a week, and then worked in law firms in Rotterdam and Amsterdam for another three weeks.  Our task was to write a dissertation in relation to how the practice of the lawyers we worked with was relevant to European integration.   It was my first ever trip abroad.  It was exciting and inspiring, and a great bonding experience for the students involved.   

I was aware of the possibility of a career at the Bar at an early stage.  What crystallised my intentions were visits to the Law Faculty by Clerks of the Faculty of Advocates.  They brought with them junior advocates who were able to speak about life at the Bar both formally and also informally, over a glass of wine.  Simpson and Marwick WS offered me a Bar traineeship – one year of training in a solicitor’s office, rather than the two required for qualification as a solicitor – and I moved to Edinburgh in 1991 to take that up.  The traineeship was ideal for someone wishing to become an advocate.  Simpson and Marwick introduced trainees to appearance work in the small claims court from the very start of their traineeships, and provided many opportunities to attend the Court of Session to instruct counsel.     

Devilling, or pupillage, the specialist training over several months to become an advocate, in those days consisted only of time spent with devilmasters.  I was fortunate that Peter Anderson of Simpson and Marwick suggested I should ask John Baird (later Sheriff Baird) to be my devilmaster.  He was a very good and supportive teacher.   

After devilling, I was admitted to the Faculty of Advocates in 1993 and initially had a very general civil practice, mainly, but not exclusively, in personal injuries.   I was not aware of any gender-based discrimination as to the cases in which I was instructed.   It is, however, rare to come to know why one may not have been instructed in a particular matter.  There was no reliable way of knowing whether I was submitting fees at the same level as men colleagues, and, at the time, no institutional monitoring to assess whether there might be a gender-based disparity in fee income. It was the case, and to some extent remains the case, that women are more often instructed in some areas of practice than others.  I never felt that any judge discriminated against me in the conduct of a case because I was a woman.  I generally felt in the early years of practice that I was operating on an equal footing with male contemporaries.

Sexual mores at work were different in the early 1990s from what they are now.  There were  - thankfully infrequent – occasions when I had unwelcome sexual attention from other lawyers where that was professionally inappropriate.  I am sorry now that I didn’t complain at the time.  To do so felt difficult.  It made me alert later on to situations where I perceived that that might be happening to a junior practitioner.

My practice became more focused on public law after 2000, when I was appointed as a standing junior to the Home Department, and began to be instructed in many immigration and asylum cases.  Some of these involved very interesting issues that were litigated through to the House of Lords (in the days before the creation of the UK Supreme Court).  Devolution meant that there were now two governments to subject to scrutiny through judicial review.  I appeared for the UK government as a standing junior, but mainly against the Scottish Government as junior counsel for petitioners in cases relating to prisoners’ rights.

Because I had become an advocate at the age of 23, I had already been in practice for 9 years when I first became a parent.  I never stopped work completely, and continued to do written work throughout.  There was a financial imperative to keep working, as I was self-employed.  The costs I had to cover increased, not least because of the cost of childcare.  Because of that imperative, I didn’t really have much scope to worry about how it would be perceived if I took more time off.  It is also worth mentioning that I didn’t really want to turn away work – not just because of financial imperatives, or worries about how that might be perceived, but because I loved doing the work.

After I had children, I became more aware of the way in which having children impacted then – and I think, realistically, probably still does today – differently on women than on men in the same profession.  In the early and mid-2000s, I used to work in the Advocates’ Library on the evenings before court hearings of any substance, as did many other advocates.  Most instructions were delivered in paper form.  In big cases those could extend to many volumes.  It was often simpler to leave the papers in place in the library than to get them home in the evening and back to court for the morning.   

I would leave the library in time to pick up my children from nursery.  I would then go home, have dinner with them, bath them and put them to bed.  After that I would leave them with their father and go back to the library. 

Some male counsel (who were also parents) would still be in the library.  They had not left in the hours that I had been away.  I mention this because it illustrates that different impact on women.  It is simply more difficult, although not impossible, to get the same work done in less time.  It is easier to do the work and to do it to a high standard without the hours spent collecting children, feeding them, bathing them, reading to them, and then getting back into the zone to do the professional work, whether in the library or in the study at home.  Women still are more likely to be the parents doing that sort of caring work.

I suppose you might ask why I didn’t just stay in the library and buck any expectation that I would go home.  The question perhaps risks undervaluing caring responsibilities.  They are valuable to those who care and those who are cared for.  They are no less important and valuable because they have traditionally been the province primarily of women rather than men.   You might ask why the men who stayed in the library made the choices they did.  None of this is to understate the importance of the professional work or getting it done to a high standard. 

Working as a self-employed advocate after I became a parent was, however, very substantially a positive experience.  The Bar was a very good place to be.  Unlike friends in private practice, I often didn’t have to show up in any particular location unless I was in court or consulting.  If I chose to sit at home typing adjustments with a baby in a sling strapped to me, nobody saw me doing it.  Nobody was in a position to question whether I should be doing it that way.  My performance was assessed on the quality of the written work I produced, and in how I presented cases in court, not on whether I was at all times notionally available in an office environment.  I did not require to produce fee income to satisfy anything other than the financial needs of my own family.  In the context of parenthood as a working lawyer, these were valuable freedoms.   

There was, and is, scope for managing work in a way that allows time for caring responsibilities.  What I found frustrating was that expectations around doing so continued predominantly to fall on women rather than on men.

In 2008 I was appointed Queen’s Counsel, while acting as junior counsel to the Fingerprint Inquiry Scotland.  Working with senior counsel to the inquiry, Gerry Moynihan QC, and Sir Anthony Campbell QC, a retired judge of the Court of Appeal of Northern Ireland, the chair of the inquiry, was a great experience.    After the inquiry ended, I entered practice again as senior counsel, and continued to act mainly in public law cases, including in particular a number of very interesting cases about limits of the legislative powers of the Scottish Parliament, including Scotch Whisky Association v Lord Advocate and Christian Institute v Lord Advocate.

From 2005 onwards, I had also been appointed to a number of part-time judicial roles.  Those helped me to understand that I enjoyed judicial work and would like to do more of it, with the result that I applied to be a Senator of the College of Justice, and was appointed in 2016.  The work is varied and interesting.  While self-employed life provided flexibility, in many other ways my professional life is now more family-friendly than it was before.  The pace of work is much more even, and it is usually easier to predict what I will be doing several months into the future.

Life outside law matters.  Although the form of my musical activities has changed, music is again an important part of my life.  I enjoy being an amateur singer, instrumentalist and composer.   I don’t want to leave “100 voices”, without at least a reference to music on the way past.

I am called Ailsa, because my father loved the operas of Richard Wagner, and wanted to name me for one of his heroines.  He and my mother settled on Elsa of Brabant, from Lohengrin, but my mother insisted on a Scottish spelling.  How I got my name became one of those often-repeated family stories.   

The story of Lohengrin derives from German mediaeval sources, and the legend of the Knight of the Swan.  In the story as Wagner told it in his opera, Elsa is accused of murdering her brother, who is missing.  A trial by combat is arranged.  She prays for a champion to save her.  A mysterious knight appears, arriving in a barge drawn by a swan.  He offers to be her champion, and asks to marry her.  She must not, however, ask who he is, or where he has come from.  The knight prevails in the combat, and Elsa is acquitted.   Elsa resists a great deal of pressure from others to ask the knight his name.  They are married, but after their wedding, she asks him his name.  This brings their relationship abruptly to an end.  The knight reveals that he is Lohengrin, son of Parsifal, and a Knight of the Grail.  As his identity has been disclosed, he must leave.  It is revealed that the swan is Elsa’s missing brother, Gottfried, who has been cursed to become a swan.  Lohengrin prays, and Gottfried is restored to human form.  Elsa, however, dies, of grief.

Elsa’s story involves a male rescuer – literally a knight in shining armour – and a hard fate for a woman who asks her husband just who he actually is.  His love and devotion are withdrawn immediately.  He returns to pursuit of a higher calling than marriage with a woman.  The story is taken from earlier sources, and Wagner himself saw parallels with classical mythology, in particular the story of Zeus and Semele (where the male character is, literally, a god, and the woman dies when his identity is revealed because she, a mortal, cannot survive looking upon a divine being).   

I mention this because I think that it is sometimes harder than we acknowledge to free ourselves from traditional narratives about the roles of men and women respectively in society generally, and in professional life in particular.  We know intellectually that they are not true, or do not need to be true. But it is still much rarer, I am afraid, to hear a woman described as “brilliant” than it is a man.  Expectations as to “soft skills” are still higher in relation to women than they are in relation to men.   Even when women achieve high office, these more subtle narratives and expectations have a way of persisting.  Having visible examples of women who have succeeded in law has been important to me.  I am enormously grateful to the women lawyers of the last century and, particularly the ten women appointed before me as Senators of the College of Justice, for the part they have played in making it easier to progress with real confidence that all roles in the legal profession are open to women.