The Bar must galvanise itself to change

The UK is a diverse and multicultural society, but its institutions, especially the elite ones, frequently fail to reflect that. Even Oxford University is being criticised by the prime minister for being unsuccessful in raising the proportion of minority and lower socio-economic students. One could ask why, in a competitive, neo-liberal society, we are not seeing the meritocratic rewards of competition. Although neither the left nor the right is a sponsor of equality of outcome, both sides advocate equality of opportunity. And this is where our institutions lack credibility when they claim to be repairing past inequities.

The Bar of England and Wales has always portrayed itself as a key supporter of meritocracy, the ultimate bootstrapping group of individual professionals. There are more than 16,300 barristers in England and Wales, most practising in chambers which are cost-sharing but not fee-sharing enterprises. This enables barristers to work in a quasi-corporate structure while being self-employed. The administration and managing of chambers is done by barristers' clerks, who exert considerable authority in chambers and over barristers.

Chambers are far more strategic now about how they position themselves in the market. This has led to sections of chambers moving from one set to another in mergers and acquisitions. Even the commissioning and distribution of work has altered. Solicitors hire barristers for specific tasks rather than an entire matter, with the result that barristers' careers are more contingent and uncertain, especially in the field of crime. With the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and other moves by the government to constrain legal costs, careers at the Bar are without safety cushions. Legal aid no longer covers the first years of practice while barristers secure their professional footing.

Gender gap

Despite worsening economic conditions, the Bar appears to be growing, but its composition is skewed. There are equal numbers of men and women at the pupillage stage - according to the Bar Standards Board (BSB), but this data is contested - yet female attrition is marked thereafter. Since 2010 the percentage of female barristers has not changed significantly, remaining in the mid-30s, with the present percentage being 35 per cent. By the time we reach the elevated rank of Queen's Counsel, women make up only 13 per cent - in other words, men dominate at 87 per cent of QCs. This lack of progression is important because our judiciary selection procedures still focus on QCs as the source of judges.

If we examine the effect of gender more closely, we can see that the distribution of men and women throughout different fields is variable. Work by Anna Zimdars, a lecturer at King's College London, on diversity at the Bar shows women to be over-represented in lower-status areas of work such as crime and family, while men predominate in the corporate and high-value individual types
of work.

Moreover, these differences are augmented by the educational institution attended. Attendance
at Oxford or Cambridge has a disproportionate effect on obtaining pupillages and tenancies, taking silk, and applying for judicial positions. Research by Michael Blackwell, assistant professor of law at LSE, on the taking of silk demonstrates that even with changes to the appointment process, a combination of being male, Oxbridge educated, and working in the 'right' kind of chambers leads to greater opportunities and success in applying for silk. While the Bar might like to think of this state of affairs as a reflection of meritocratic outcomes, the distortions are too great for that to be an acceptable answer.

Lack of representation

Indeed, the situation is further compounded when we take into account ethnicity. Students from minority ethnic backgrounds tend not to attend Oxbridge or Russell Group universities. They therefore lack the initial foundations to gain pupillages and entry to chambers. They don't have the social connections that ease the way into mini-pupillages and internships. Pupil barrister Elaine Freer's study of Inner Temple's Pegasus Access and Support Scheme (PASS) to assist disadvantaged students in obtaining mini-pupillages illustrates how one Inn of Court's attempt to effect social change has had some positive results. The other Inns appear to have
no interest, but the initial results show that misconceptions of the Bar can be altered through
a carefully monitored scheme like PASS. As it stands, PASS is too small and limited to affect the ethnic profile of the Bar, but at least it is a start. Ethnic minorities are grossly under-represented at the Bar. Even the BSB figures show that only 12 per cent of the practising Bar come from black, Asian, and minority ethnic (BAME) backgrounds. More try to enter the Bar, with over 15 per cent of ethnic minorities in pupillage. From there it is a downward curve, with only 6 per cent achieving silk.

We have considerable difficulty in discerning the numbers of disabled barristers at the Bar because the BSB data collection is poor. Of those that disclose disability, the percentages vary between 0.1 per cent for QCs to just over 1.5 per cent for the Bar as a whole. The statistics for sexual orientation are more or less useless as well. And, finally,
for socio-economic background, the BSB
mainly focuses on education, showing that a preponderance of those who answer the questions come from the state sector - but as 73 per cent refused to answer, the statistic is effectively meaningless.

Data collection

So, the profile of the Bar lacks clarity, but even on the basis of what we appear to know, the conclusion is that the Bar is not diverse, and so unrepresentative of society. The Bar must be held responsible for this in two ways. First, assistance for those who lack the advantages of white, middle-class, professional parents requires substantially more investment. Schemes like PASS should be the norm, not a rarity. Second, the Bar can improve the way it collects data on diversity and, indeed, on the Bar in general.

The Legal Services Board (LSB) requires all the front-line regulators to collect statistics on diversity. The approach of the BSB, as compared to the Solicitors Regulation Authority, has been relaxed. Chambers are told to collect a range of data but are not compelled to give it to the BSB. Nor does it appear that the BSB has greatly improved its data collection since the LSB first introduced the requirement.

In its 2013 review, the BSB reported that more than a third of chambers saw the collection of diversity data as an invasion of privacy. For gender there is a 98 per cent response rate from chambers, but for sexual orientation and socio-economic background the rate drops to 20 per cent. Research on data gathering shows that larger chambers are prepared to disclose more information than smaller ones and that barristers are more open about gender, ethnicity, and age than they are about sexual orientation, disability, and socio-economic background. Unfortunately, it is not clear why this distinction occurs, and the BSB appears not to have probed into this refusal.

If such an important and vital institution as the Bar is to serve a multicultural and diverse population like the UK, its profile and composition must begin to approximate that of society. At present, it is nowhere close. The regulator, the BSB, must show more tenacity in collecting data on the Bar: it does neither itself nor the Bar any favours by not pushing this agenda forward. As
it stands, the Bar is elitist and remote and, in the 21st century, with warnings emanating from writers like Thomas Piketty on inequality, the
Bar must galvanise itself to change or risk marginalisation.

John Flood is a professor of law and the director of the Law Futures Centre at Griffith University Law School in Brisbane. He is an honorary professor of law at University College London and visiting professor of law at the University of Westminster. From 2012 to 2014 he was a Leverhulme research fellow studying the global context of the re-regulated legal services market. @GriffLawSchool

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