Diversity at the Bar has, quite rightly, been a central concern of the Bar Standards Board (BSB), Bar Council as well as barristers’ chambers for many years. The most recent diversity data collated by the BSB (2018, published February 2019) shows that male barristers outnumber females by almost two to one, with women making up just 37.4% of the Bar. The picture is still more polarised amongst QCs, only 15.8% of whom are women. Black, Asian & minority ethnic (BAME) and disabled practitioners are also underrepresented, in comparison with the working population as a whole.
It is, however, not only access to a career at the Bar that has concerned the BSB, but also the distribution of work amongst practising barristers. This issue was highlighted in detail in a recent article in The Lawyer which demonstrated, through a four-year analysis, that female barristers appeared in only 30% of Employment Appeal Tribunal and employment-related Court of Appeal hearings. (‘How gendered instructions at the employment Bar are scuppering female barristers’ ambitions for silk’, The Lawyer, July/August 2019. See also HHJ Emma Nott’s analysis of work allocation at the Bar, ‘Gender at the Bar and fair access to work (3)’, in issue of Counsel.)
At Cloisters, a set where many members specialise in discrimination law, we have welcomed the BSB’s initiatives to encourage diversity at the Bar. We have sought to develop internal practices that not only implement the equality and diversity rules but, where possible, go beyond them and our own statistics reflect this, with women accounting for 47% of our barristers.
In this article, we explain some of the steps we have taken to embed equality of opportunity into our recruitment and work allocation practices – and how we hope to improve in future.
The recruitment approach
There are many barriers – actual and perceived – to qualifying as a barrister from a ‘non-traditional’ background. We, therefore, consider it important to try to demystify the profession and the recruitment process so far as possible. For this reason, Cloisters reserves five of its ten annual mini-pupillages for applicants from less advantaged backgrounds, including those with a disability or who have (or have in the past had) caring responsibilities. Strong applicants who do not secure a mini-pupillage are invited to an open evening, where they can meet a range of chambers’ barristers. This year, we are introducing a series of vocational training seminars, run by Cloisters barristers, which are made available to law students from backgrounds under-represented at the Bar.
Cloisters has for many years operated an ‘institution blind’ and objective pupillage application marking scheme. This process has now been made significantly easier at the initial shortlisting stage by the introduction of an option to remove identifying information (age, sex, educational institutions etc) from application forms at source, so that it is not known to markers. The odd comment may reveal characteristics in any given case (there are always a few captains of gendered sports clubs and references to O Levels!), but we feel using this option removes, so far as possible, information that may unconsciously bias the marker. As a safety net, all forms are double-marked and, if there is a significant disparity in the scores, the form is referred to a third marker.
We are open about the criteria we use to mark pupillage application forms, and we welcome enquiries from potential applicants about the way in which we operate our selection process.
We continue to strive to widen access to the profession, and to this end have introduced a positive action scheme under which candidates from disadvantaged backgrounds receive limited additional marks at paper shortlisting to recognise structural disadvantage. This has already resulted in a greater proportion of such candidates progressing to the interview stages of our process. We also recognise that the traditional structure of pupillage can be a deterrent for applicants with caring responsibilities or disabilities so, from this year, offer pupils the options of part-time pupillage, flexible working arrangements, and home working.
We have also endeavoured to adopt an objective approach to the tenancy selection process at the end of pupillage. We rely heavily on assessments of advocacy, drafting and research skills, which are set and marked by a range of members of chambers, prior to an interview conducted by our tenancy committee which reviews all the marks and makes a recommendation to chambers. Feedback from supervisors is considered but makes up a small proportion of the final mark. Whilst it demands a significant effort from all those involved, we have found that this system is the best way to reduce the weight given to individual subjective views on pupils, which can be influenced by unconscious bias.
Fair allocation of work
The figures quoted in The Lawyer article cited above, together with reports of the low level of magic circle firm instructions sent to female barristers, serve to emphasise the importance of the BSB requirement to review the allocation of unassigned work. In our view, however, focus on unassigned work (which often makes up a relatively small proportion of the briefs arriving in chambers) may obscure a pattern of discrimination in instructions sent to named barristers. In order to build up a full picture of the allocation of work as between barristers with different protected characteristics, chambers needs to look at the distribution of all instructions, and also at comparative billings, to see whether patterns emerge.
When we first began to look at how to monitor unassigned work coming into chambers, it seemed a daunting task. We were able to source some software to assist, but the task was not straightforward. Our clerks had to enter additional information onto the system when unassigned work arrived in chambers, and in order to analyse the distribution of that work, barristers had to provide their diversity data. We obtained a very high level of response to our diversity data survey by emphasising the importance of this information for monitoring purposes and by limiting the availability of that data to a single system user to preserve confidentiality. Entering the data onto the system was a time-consuming process and, even then, evaluation was difficult as it involved extracting information into separate spreadsheets, which could not easily be brought together for analysis.
Nevertheless, we were able to obtain information not only about unassigned work but also about instructions more generally, so as to analyse the briefing of barristers by reference to particular protected characteristics. This information led us to dig deeper and to consider whether any patterns we detected were reflected in billings. With this evidence, we were able to consider potential remedial measures. As an example, we were able to obtain remarkably consistent data showing the impact of parental leave on both instructions and billings, and to use that information to help devise supportive measures for individuals returning from such leave.
Towards a Bar without barriers
We are pleased to say that, in recent months, more advanced software has become available that seems likely to make the process of monitoring the allocation of work within chambers much more user-friendly. (Cloisters uses LEX.) We consider the continued development of technological and other solutions to assist chambers in carrying out this monitoring to be absolutely essential if the Bar is serious about changing the status quo when it comes to the allocation of work.
Without robust data, there is no evidential basis on which to challenge practices which may be limiting talented members of our profession and perpetuating a system where only 15.8% of our QCs are female; only 7.8% come from BAME backgrounds; and only around 1% have a disability.