Diversity at the Bar: where do we go from here?

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Just when we could see progress in diversity finally finding traction, the loss of so many colleagues threatens to set us back years, if not decades – Jo Sidhu QC and Elaine Banton  share some positive ideas to support and build diversity

We all should know that diversity makes for a rich tapestry, and we must understand that all the threads are equal in value no matter what their colour.’

In a year blighted by extraordinary turbulence and uncertainty, these words from Maya Angelou are a timely reminder of how vital it is to ensure that the Bar remains accessible to, and inclusive of, every strand of the society it serves. A fair balance in colour is but one of the elements necessary to maintain a healthy and representative profession fit for the 21st century.

There is no doubt that we have already made significant strides in promoting and delivering diversity and inclusion at the Bar. The importance and value of these virtues have gradually become embedded in our organisational structures and in our discourse about our policies and programmes. But the mission has not been an easy one. We must recognise that, while the Bar has proven it is infinitely adaptable in responding to the demands of the market, it is nonetheless an inherently conservative organisation. Change comes only incrementally, often driven by the efforts of key individuals working to re-shape and modernise our institutions.

So where are we now?

The Bar Standards Board’s latest Diversity Report (2019) tells us that we are seeing steady progress in our gender balance with women now constituting 38% of the Bar. In addition, 55% of our pupils are female which may bode well for the future depending upon whether we are able to address the chronic problem of attrition. Given that only 16.2% of our QCs are women there is plainly still much work to do.

Similarly, we have seen a modest increase in the numbers of Black, Asian and minority ethnic barristers to 13.6% of the Bar’s membership. Although comparisons with the general population are inherently problematic, it might be noted that the proportion of Black, Asian and minority ethnic workers generally in England and Wales is 14.4%. There has also been a slight increase in the presence of barristers drawn from the Black, Asian and minority ethnic communities among QCs. Further, by January 2020 the proportion of pupils from these communities had risen to 19%, which seemed a good omen. However, this was of course pre COVID-19.

These headline figures may, therefore, hide a more nuanced and less satisfactory picture. Firstly, as with the female Bar, there continues to be a significant disparity in the number of Black, Asian and minority ethnic silks (only 8.1%), which highlights unresolved problems in achieving across the board consistency in career progression. By comparison, white barristers make up 85.3% of the Bar but 91.5% of silks. Secondly, there have been notable differences in experiences between particular minority ethnic communities in gaining entry to the Bar. Asian barristers make up 7.2% of the profession (and 6.2% of the working population). But the ratio for Black barristers reveals an opposite pattern (3.2% vs 3.7%). Furthermore, there is a real disparity between the proportion of Asian (7.5%) and Black (3.44%) barristers amongst the junior Bar, compared to Asian (4%) and Black (1.14%) barristers within the ranks of our QCs. So, even amongst Black, Asian and minority ethnic practitioners progress is uneven.

The differential rates of advancement amongst Asian and Black barristers respectively mirror a variation in experiences within minority ethnic communities in wider society. Statistics demonstrate poorer outcomes for black people through a range of areas extending from treatment in schooling, health profiles, access to housing and employment opportunities, to discrimination in policing and within the criminal justice system. No wonder then that many black barristers raise legitimate concerns that the continual consolidation of statistics under the acronym BAME disguises the reality of a lag in the advancement of black members within our profession. There is therefore now a strong argument that the Bar must adopt a more targeted approach to eliminating racial disparities not least because, without action, the even more worrying patterns of underrepresentation of black people within the senior judiciary is unlikely to change.

The threat of regression

The negative impact of the COVID-19 crisis on the prospects for sustained success in improving diversity should not be underestimated. Chambers with a significant dependency on publicly funded work were already feeling the financial strain of a longstanding decline in income from legal aid. A prolonged period of disinvestment by the government in the justice system has profoundly compromised the long-term viability of these sets. That is why the sudden closure of criminal courts in March was the last straw for many. As a result, the ongoing exodus of barristers from our ranks has been accelerated and regrettably some chambers are being forced into closure.

For a variety of reasons, not least the barriers to entry into those chambers that undertake mainly private work, barristers from ethnic minority communities and female practitioners have become unevenly concentrated in sets that rely upon a dwindling fund of legally aided cases. For example, the presence of black barristers within the fields of commercial, chancery and PI is as low as 1% -2%. This has led to a structural distortion in the demographics of diversity within our profession. It also means that these practitioners are the most vulnerable to being driven out from our ranks as the stagnation of our justice system starves them of the ability to work. The lack of alternative sources of financial support that is all too often the corollary of a less advantageous socio-economic background merely increases the risk of their premature departure. Just when we could see progress in diversity finally gaining some traction, the loss of so many colleagues threatens to set us back years, if not decades.

The next generation – new hope?

Despite the insecurity of life at the Bar, there seems to be an inexhaustible supply of hopefuls pitching for pupillage each year. 1,753 students signed up for the BPTC in 2018-19, a record number. What, then, are the prospects for mitigating the effects of the attrition of Black, Asian, minority ethnic and female barristers, and recruiting more entrants from non-traditional backgrounds? The latest figures show a worrying trend. The number of pupillages provided through the Gateway (accounting for approximately 50% of all pupillages) plummeted from 216 in 2019 to just 135 this year. In the past, the average number of pupillages allocated via Gateway and non-Gateway has been between 400 and 500. Overall, aspiring barristers now have only a 7% chance of getting an offer.

The pain of disappointment in applying for pupillage is not equally shared. While this year the success rate for Black, Asian and minority ethnic applicants in obtaining a pupillage was 3.3%, the success rate for white applicants was 8.7%. It should be noted that it is not just an applicant’s race that may play a part in their chances; the success rate for those who had a barrister or a judge as a parent leapt to 17%. It seems that the virtuous circle of inter-generational social advantage may be making it harder to level the playing field and to promote real inclusion.

Inevitably, the impact of COVID-19 will result in a further reduction in the overall number of pupillages as many chambers are forced to reduce their costs in line with falling income. Since it is those sets that depend heavily on publicly funded work that will suffer the most, aspiring female barristers and those from minority ethnic communities will lose out disproportionately. These are the very sets that have historically been the most open and welcoming to them.

Some positive ideas to support diversity

Plainly, the hardship currently faced by many at the bar has made it more difficult to protect and to build upon the diversity gains we have made. But the task is not beyond us. A range of ongoing initiatives reflects a continuing determination to ensure that the rich tapestry spoken of by Maya Angelou remains an achievable reality.

The Bar Council’s newly established Race Working Group (RWG) has participants drawn from various Bar Council Committees, Specialist Bar Associations, the Black Barristers’ Network, Circuit representatives and grass root organisations such as BME Legal, Bridging the Bar and Black Men in the Law. The RWG’s brief is to review all the available evidence and data, and then to consolidate and disseminate guidance directed to tackling areas of continuing racial disparity within the profession. Initiatives may include mentorship programmes specifically geared towards pupillage and scholarship interviews.

Focusing on sexual disparity and attrition rates in recent years has also been a priority for the Bar Council. As an example, the Accelerator Programme spans nine main areas of work including First Seven Years Support, Practice Management guidelines and standards, Legal Directories, Mentoring, Flexible Working, Culture Change and Future Leaders. One key feature of how to raise awareness of the vital importance of diversity is by embedding it into all decision-making processes within sets of chambers, rather than leaving it as an afterthought.

The BSB offers a helpful framework to the bar through their handbook Equality Rules which contains a toolkit ‘to enable chambers to meet their legal and regulatory duties, and to follow best practice in equality and diversity’. It even provides a Model Equality Action Plan which could include diversity training for clerks and the monitoring of work allocation to ensure fairness. It is encouraging to see that many chambers now have their own E&D committee, rather than relying on a single Equality and Diversity Officer (EDO).

Indeed, there has been a substantial increase in requests from various chambers for advice on positive action initiatives. The Bar Council’s EDSM Committee and the RWG are revamping Positive Action Guidance, to reinforce practical insight with examples. These can demonstrate how lawful positive action (as opposed to unlawful positive discrimination) may be utilised effectively to bring about improved diversity in chambers. The examples include schemes such as mentorship and assessed mini pupillages which target underrepresented groups.

Finally, an initiative to encourage progression into the judiciary called the Pre Application Judicial Education Programme (PAJE) was successfully launched last year. Its purpose is to better prepare Black, Asian, minority ethnic, women and disabled lawyers when applying for future judicial roles.

Building diversity in leadership

Strong leadership in support of diversity and inclusion is essential if we are to deliver it successfully on the ground. The Bar is an ecosystem of many parts. As such, our collective belief that it should be accessible to all requires a mutual commitment between each of our component bodies to propagate the benefits of diversity. But it is not just about the message itself. If we are truly serious about being representative, whether it is at the level of individual chambers, Specialist Bar Associations, the Bar Council, our Circuits or the Inns of Court, the leaders who deliver that message should also reflect the many faces of their members.

 

The Bar Standards Board’s Race Equality Taskforce has launched a series of case studies to promote racial diversity and inclusion at the Bar. The series will focus on encouraging barristers’ chambers to adopt equality and diversity best practice from across the sector in order to foster a more inclusive culture in the profession.
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Jo Sidhu QC

Jo Sidhu QC, barrister at 25 Bedford Row and No5 Chambers, Vice Chair of the Criminal Bar Association, former President of the Society of Asian Lawyers, and Bencher at Lincoln’s Inn.

Elaine Banton

Elaine Banton, barrister at 7BR Chambers, Co-Chair of the Bar Council’s Equality Diversity and Social Mobility Committee, Co-Chair of Middle Temple’s Race Equality, Inclusion and Anti-Racism Working Group and Bencher at Middle Temple.