In April 2020, the Bar Council warned that COVID-19 could undo the Bar’s efforts to improve diversity amongst the profession. This stark warning stems from a survey which revealed that the interruptions caused by the COVID-19 crisis mean that the publicly funded Bar and the young Bar is at risk of sinking, as a result of the limited access to work.
The junior Bar – more likely to be saddled with debt from qualifying, less likely to have an established practice, savings, financial structures in place – is most at risk of being forced to leave the profession by the financial impact of the lockdown.
The junior Bar makes by far the biggest contribution to the diversity of the Bar as a whole. Statistics released by the BSB in 2019 show that women constitute 37.6% of the Bar, but 46.3% of those practising under 5 years’ call.Of first six pupils in 2018/2019, 55.5% are women. In 2019, 13.5% of the Bar as a whole identified as Black, Asian and Minority Ethnic (BAME), compared with 13.7% of those practicing under 5 years’ call. Of first six pupils in 2018/2019, 17% identify as BAME.
Compounding matters, BAME and state-educated barristers are more likely to do legally aided work, an area which has been particularly affected. For example, in the criminal sphere, with crown court trials stopping altogether, and likely to be few and far between for many months to come.
Implications will run deep
The true impact of the crisis may not be seen immediately. The Bar Council survey of junior barristers (up to 7 years in practice) revealed that 71% cannot survive six months under present circumstances, and 83% cannot survive a year.
The implications for diversity run deeper than a cull of juniors. The Bar’s efforts in attracting diverse candidates to the profession are being severely undermined. Is anyone going to want to come to the Bar if it is left decimated after this crisis is over? Will they take the risk? Should they?
This is also a time in which a spotlight is being directed at systemic racism and inequality with a sustained urgency, including at the Bar. The Bar, already conscious of the need to diversify itself, must surely feel the obligation to do so as never before.
The Bar must be representative of the society it serves. It must not be a profession reserved for the rich, the white, the able bodied, the male. Nor, increasingly, is it. Needless to say, embracing measures to ensure non-traditional candidates are not excluded through lack of opportunity or bias is not designed to – and nor should it – make traditional candidates ‘feel that the cards are stacked against them’. Do not mistake the removal of undeserved privilege for the reapportionment of a limited pool of opportunity to practise at the Bar.
There is no reason why a particular type of person should dominate the profession – and by doing so, monopolise the pool from which judges tend to be drawn, up to and including those who sit in the Supreme Court, shaping our laws. On the contrary, a legal profession that is representative of the society it serves will ensure outcomes that reflect the divergent experiences of us all.
The Bar must – and increasingly does – take action to make itself as diverse as the communities we live in. But we must remedy the fact that only two women have ever sat on the Supreme Court and not a single BAME individual. There are less than a handful of BAME judges in any court higher than the High Court (see JUSTICE report). Even among judges in the lower courts, those from BAME backgrounds are underrepresented (see Lammy Review).
Meanwhile, black people are six times more likely to be subjected to stop and search than white people. Within drug offences, if you are BAME you are 240% more likely to receive a custodial sentence than if you are white (Lammy Review). Even the terminology more likely to be used to describe BAME people than white – 'gang' versus 'group', for example – betrays the over-criminalisation of BAME, and particularly black, individuals.
Women are a minority among defendants in the criminal justice system. As such, their particular needs are often overlooked. Little has changed since the Corston Report called for radical change in 2007.
The Bar may not be the ultimate source of these injustices, but it is our job to cross-examine, call experts and make submissions on behalf of our clients. In doing so, we are the conduit for our clients’ experiences, ensuring that these are properly represented throughout the legal process. A diverse Bar, with diverse experiences, can do this all the more effectively. What is more, a truly diverse profession will help to dispel the ‘us and them’ archetype which can be an obstacle to clients placing their trust in the profession and the legal system as a whole.
Using this time to redouble our diversity efforts
The COVID-19 crisis clearly represents a threat to diversity at the Bar through its financial implications. However, it also offers opportunities to bolster the Bar’s efforts to improve diversity.
The increase in the use of remote technology can be used to our advantage. Conducting suitable hearings remotely even after the crisis is over would allow those with childcare or caring responsibilities greater flexibility. This has the potential to help combat retention issues, in particular in relation to women and sole/primary care givers, that have plagued the Bar (see Western Circuit Women’s Forum report, Back to the Bar).
We must and can resume important outreach work. Online webinars/conferencing have taken on a new popularity. They have the potential to reach larger audiences and avoid the obstacles that might otherwise have prevented people from attending such events, such as the cost and time of travelling. These could be offered to provincial state schools who hitherto may have been outside most chambers’ ‘catchment area’ to inspire our next generation of junior barristers.
As for prospective pupils, remote mini-pupillages and mentoring could be more widely offered. Again, remote experiences remove prohibitive travel and accommodation costs. There may even be flexibility to fit such opportunities around work. Mentoring can provide invaluable assistance to prospective pupils, many of whom have been left in limbo with pupillage recruitment rounds suspended or cancelled. We can assist by providing guidance on applications or practice ‘remote’ interviewing techniques.
With the slowdown of work, COVID-19 has given us one thing: time. Chambers as recruiters must use the time to take a long hard look at their pupillage policies and their recruitment processes. Are BAME candidates applying to chambers? Do they get selected for interview? Do they get offered pupillage? If not, why not?
We can educate and train ourselves to address deep-seated prejudices and unconscious bias. This could be done through self-study or undertaking training courses such as those on fair recruitment or equality and diversity, many of which are currently being provided online.
If we do nothing, the COVID-19 crisis may well signal a return to the exclusive Bar of the past we have worked hard to improve. But if we take the opportunity to redouble our efforts in terms of diversity, we can lay a surer groundwork for a genuinely representative Bar.
Published on 26 June 2020