At the very start of my career, I recall being in a busy list before a judge that clearly liked his reputation for being a bit of a character. The judge was a low-talker. Counsel ahead of me in the list was having a lively but courteous exchange with the judge but was struggling to hear everything the judge was saying. Counsel explained that he had a slight hearing problem and wondered if the judge could speak a little more loudly. The judge (mercifully long since retired) replied that ‘I shall do my best, but I do wonder if the Bar is really a suitable career for someone with your disability.’
We would hope that no member of the judiciary would express such views today – or at least not get away with doing so – but barristers, pupils and BPTC students with a disability still face a myriad of barriers that can seriously hamper their careers. I regularly see these the difficulties caused by these barriers as a result of my membership of the Bar Council’s Disability Panel, as well as through being a panellist that interviews applicants for Disability Awards from the Inner Temple.
According to the Papworth Trust’s 2018 report on disability, there are 13.3 million disabled people living in the UK making up 18% of the working age population (Facts and Figures 2018 Disability in the United Kingdom). The Bar Standard Board’s most recent report on diversity indicated that of those members of the practising Bar that responded (only 49%), 5.7% of the total self-identified as having a disability for the purposes of the Equality Act 2010 (Diversity at the Bar 2018). The figures also showed that the proportion of barristers with a disability fell with seniority (7.7% of pupils identifying as having a disability as against 2.9% of silks). The practising Bar still does not fully reflect the community from which it is drawn and that it serves – at least when it comes to disability.
Access to court buildings
One of the biggest challenges that disabled practitioners face is access to court buildings. In the seven years I have been a member of the Bar Council’s Disability Panel, access to the courts has been a regular issue raised with us by practitioners and by us with the Ministry of Justice and the judiciary. Nevertheless, in a recent answer to a written question the Lord Keen of Elie, the Advocate General for Scotland and a spokesman for MOJ business in the House of Lords, admitted that as of 8 April 2019, 31 out of 56 court and tribunal buildings in Greater London were not accessible to court users with disabilities. Resolution of this problem will require serious investment in our courts and tribunals by the government but – at least at present – this does not appear to be a spending priority.
Access to chambers
A further significant challenge for the disabled practitioner is access to chambers. Chambers are often in old and/or listed buildings. Frequently these buildings were not constructed to comply with current building regulations to afford access to those with disabilities. Even when refurbished it often seems that access issues for those with disabilities are not fully appreciated. Intercoms for gaining access to chambers are often too high or otherwise not easily accessible for those in a wheelchair, corridors may be unduly narrow, poorly lit stairwells can make buildings more difficult to navigate for those with poor eyesight.
As a member of the Disability Panel I recently dealt with a query from an aspirant pupil-barrister who used a wheelchair. He explained that he had contacted several leading commercial sets asking if their premises were accessible for him. Less than half replied to his email – of itself troubling. Of those that did, the response was broadly positive but when he telephoned to make sure the information he was given was correct it became clear that only one chambers was truly accessible. For the others, the staff member who dealt with the query had conflated ramp access to the building with accessibility. It was clear to the young man that for some of the sets he contacted once in the building he would be stuck on the ground floor or would struggle to move about chambers. He explained that in his experience of mini-pupillages it is rare that chambers have a truly accessible disabled toilet. In one chambers the disabled toilet had to be accessed by using the stairs – something that rendered it useless to him. The conversation with this very talented but understandably frustrated young man was extremely difficult and for me raised a real question mark as to how truly committed to accessibility the profession is.
Take the accessibility audit
Operating on the basis that often the issue is one of a failure to appreciate that there is a problem – rather than a desire to not address accessibilities issues – the Bar Council’s Equality, Diversity and Social Mobility Committee and the Disability Panel have produced an Accessibility Audit Tool (see below). The Audit Tool has been sent to Heads of Chambers and EDOs with a view to assisting chambers to establish if chambers suffer from some of the more common access issues. It is hoped that an awareness that there is a problem may galvanise many chambers into taking – in so far as is possible – remedial action. Whilst the Audit Tool will (hopefully) help chambers, the problem of access to chambers is likely to remain a very real one for some time to come.
Money is another very real problem for disabled students, pupils and practitioners. The student, pupil or practitioner may find that they need special equipment or software or that they may incur higher travel costs as a result of their disability. If a disability means that a practitioner cannot undertake the same range of cases as their peers in chambers, their income may be depressed. In chambers with a fixed rent element that can mean in effect the practitioner paying a higher marginal rent. For the student it may be possible to obtain some help from the university/course provider or an award from their Inn (eg Inner Temple has a fund available to provide support to disabled students and pupils to help pay for equipment, support or travel that is needed due to the student/pupil’s disability). The pupil might be able to get assistance from chambers, such as a higher pupillage award or a special travel allowance. The practitioner may be able to get adjustments to the rent structure at their chambers to accommodate their circumstances. One of the big problems is the reluctance to raise the issue of money; the concern being that the student may not get the pupillage, the pupil will not get the tenancy or that colleagues in chambers will look ill upon the request for support.
Barrister’s duty not to discriminate
Problems of stereotyping of, and discrimination against, people with disabilities is a further issue. The BSB Handbook emphasises that one of a barrister’s core duties is the obligation to not discriminate against anyone (Core Duty 8). The Handbook requires barristers to ensure that recruitment in chambers is fair (eg every member of a recruitment panel should have undergone training on fair recruitment), that there is in place a system for monitoring the allocation of work and to ensure that diversity statistics are produced and published on their Chambers’ website. The Bar Council’s Wellbeing at the Bar initiative and the concomitant emphasis on mental health awareness is highlighting the fact that not all disability is visible. That said, from requests for advice I receive, a practitioner with a mental health problem often will still worry that raising their need for support will cause them to be stigmatised or discriminated against in the allocation of work or other opportunities.
Access to the Bar clearly remains a problem. The profession continues to work to better the situation but there is still more to be done. Further advice and assistance on disability issues can be obtained from the Bar Council’s Disability Panel – which can be contacted via Sam Mercer, Head of Policy, Equality & Diversity and CSR at the Bar Council, at: email@example.com.
Audit all areas
A wealth of advice regarding disability at the Bar can be found on the Bar Council’s Ethics Hub (www.barcouncilethics.co.uk) including:
Bar Council accessibility self-audit tool for chambers
Take the access audit questionnaire to establish potential access issues and become better informed about potential barriers. Designed by the Bar Council in consultation with the Bar Council’s Disability Panel, it focuses on common access issues faced by students, pupils, members of the Bar and their clients. You do not need to submit the results to the Bar Council.
Guide on the DWP’s Access to Work scheme
Access to Work is a Department for Work and Pension’s programme, delivered by Jobcentre Plus, which covers either advice and/or potential financial support for practical measures to overcome work related barriers based on a disability. Access to Work is available to barristers with a disability who are in paid employment or self-employed.
Deaf and hard of hearing people – effective communication
People may be born deaf or become deaf traumatically or as a result of ageing; some suggestions to help improve communication with clients and colleagues, together with supplementary information with respect to the courts.
Fair recruitment guide
A guide to assist chambers in achieving best practice and fairness in recruitment and selection at the Bar, to help ensure recruitment of the best candidates from the widest possible pool of talent, and assist chambers to meet rules on recruitment and training in the Bar Standards Board Handbook.
Dyslexia: supporting colleagues, pupils and students
An overview of dyslexia and how it affects individuals; information for any dyslexic member of the Bar; guidance on what pupil supervisors and chambers can do to support dyslexic individuals; and an overview of legal and regulatory requirements.
Research by Mind in 2007 found that while people with experience of mental distress are disproportionately the victims of crime, they are also too often denied access to justice. The High Court case known as FB v DPP2 con rmed that one reason for this was insufficient understanding of how to handle cases involving victims or witnesses with mental distress appropriately. A quick guide for prosecutors and advocates.
A major research project is investigating the negative and positive experiences, choices and views of qualified disabled people working or seeking to work in the legal profession in England and Wales.
Faisel Sadiq is a property practitioner at Ely Place Chambers. He is a member of the Bar Council’s Equality, Diversity and Social Mobility Committee as well as Chair of the Disability Sub-Group.