By the time applicants for pupillage and tenancy reach the doors of commercial chambers they are already likely to be among a group largely selected from the most privileged students in the United Kingdom.

There is little or nothing the Bar can do about any inequality of opportunity and restraints on access up to and including selection for universities. Inequalities and restraints of those sorts raise wide ranging social and economic issues which can only be addressed at governmental level.    

Diversity in admission v an academic elite

However, an approach that, out of one elite group (those university educated), effectively carves out another still more elite group (those who have been most successful at the most elite universities) is liable to aggravate rather than seek to redress any lack of diversity in admission to the Commercial Bar. As is often the case, the law of unintended consequences seems to have operated. A step intended to increase access to the Bar – making the payment for pupillage compulsory – seems, if anything, to have narrowed access. Chambers which might once have taken a chance on an unorthodox candidate are less willing to do so where money is involved. With pupillage awards of £60,000 now being commonplace as the leading commercial chambers compete for what they perceive to be the best candidates, taking a punt now involves placing a significant stake at apparently long odds. 

A formal bar to entry to the Commercial Bar

Recently, COMBAR’s Equality and Diversity Committee has been trying to compile reliable information about the academic backgrounds of applicants to commercial chambers for pupillage and tenancy. The process is far from complete: information has so far been analysed for only two years, and not all chambers have responded to our requests for information. It is hoped a fuller set of data will gradually become available.

The information, both concrete and anecdotal, suggests that the numbers of applicants to commercial sets is ever increasing. Most commercial chambers require candidates to have, at least, a high 2:1. Lack of such a degree has become, in effect, a formal bar to entry to the Commercial Bar. Indeed, judging by the educational background of the junior tenants of commercial chambers as disclosed by their websites, a high 2:1 from Oxbridge or a handful of other elite universities has become a virtually indispensable requirement and a first class degree from Oxbridge a usual requirement for success. For non-law graduates, access to the conversion course run by City University (which is particularly popular with Oxbridge entrants) also appears to be an advantage.

According to the table (see above):

  • only 13 did not have a first degree from Oxford or Cambridge
  • only 4 had neither a first nor post-graduate degree from Oxford or Cambridge
  • only 4 did not (as far as can be ascertained from the websites) have a first class degree
  • 55 of the 90 had post-graduate degrees (almost always in law)
  • all but 7 of the 39 of the non-law graduates completed the conversion course at City University.

It is, of course, fair to recognise that the statistics in the table relate to applicants who, in addition to obtaining a pupillage in the first place, were offered tenancy at the end of their 12 months’ training. It could be argued that, assuming that the intake to pupillage had a wider range of degrees from a wider range of universities, the statistics simply confirm that those with the most impressive academic records on paper proved themselves to be the most able candidates for tenancy as well.

However, there is, so far, no data from which to judge whether successful applicants for pupillage came from a more diverse range of universities. The more or less formal requirement for, at least, a good 2:1 when combined with the number of applications received make it likely that most successful applicants for pupillage (like most successful applicants for tenancy) had, at least, a first class degrees and were, mostly, Oxbridge graduates. I should certainly be interested to hear from anyone involved in selecting pupils in commercial chambers that this was not, in fact, the case.

Furthermore, it is a truism that one of the obstacles to diversification of any group is the fact that, consciously or unconsciously, the existing members of the group have a tendency to select applicants who are like themselves. There seems no reason to suppose that, absent a radical re-think in the general approach adopted by commercial chambers the tenants they choose over the next ten years will come from a wider range of academic backgrounds than those chosen over the last ten. If anything, there is reason to suppose things will become narrower still as the chosen become the choosers and apply their own standards of academic achievement as the benchmark.

The Wild Card Scheme: a foot in the door

Whether any such radical re-think will happen remains to be seen. In the meantime, one of the ideas that has been floated within COMBAR’s Equality and Diversity Committee is a so-called Wild Card Scheme (“the Scheme”).

The Scheme would run parallel to the existing pupillage application routes (via OLPAS or chambers’ own application procedures). So as to be compliant with existing laws banning positive discrimination, the Scheme would be open to all as an alternative to the usual application process.

Chambers participating in the scheme would, in addition to those shortlisted for interview under their usual application procedures, randomly select or be allocated two wild cards who they would guarantee to interview. By this route, candidates who presently have no prospect of obtaining even a pupillage interview with a commercial set would at least get a foot in the door. It would then be up to them to convince their interviewers that they are worth taking a chance on.

Objections to the Scheme

A number of objections to this (or any other) form of Scheme have emerged from an, admittedly limited, number of responses to the idea received so far. They include:

(1) Only those with stellar academic records can cope with the intellectual rigours of practice at the Commercial Bar

This seems a somewhat doubtful claim. Some commercial disputes do, of course, raise difficult and complex issues of law: but most do not. On the contrary, most commercial disputes are legally run of the mill and depend, for the most part, on factual findings. Their conduct, likewise, does not call for academic discourse so much as for applied commonsense and organisational and tactical energy and imagination in their preparation and presentation. Both inherent probability and one’s own experience suggest that those skills are not the sole preserve of (or, in some cases, even characteristic of) the academic elite.

It is also doubtful that, over the past ten years or so, commercial disputes have changed so as to become different from and more complicated than they ever were before. It would be interesting, for example, to compare the above statistics with a similar table compiled by reference to the 15 most senior members of the same sets. It is more unlikely that such is the complexity and difficulty of the issues which now arise in commercial litigation that only those with postgraduate qualifications in some arcane academic area of the law can hope to understand them. On the contrary, there seems every reason to suppose that no such qualifications are required to handle the disclosure and chronology exercises by which junior commercial tenants are most often introduced to large cases or to conduct the smaller county court claims they handle themselves. The skills or otherwise of junior members of the commercial Bar in later professional life seem more likely to be the product of this sort of learning on the job than of spending the best years of their lives in law libraries collecting more and more academic qualifications.

(2) As the Scheme would be open to all, it would potentially randomly advantage undeserving candidates

This objection appears, to me, more theoretical than real. If each participating set offered only two wild card interviews, there would be unlikely to be more than about 40 such interviews available. This compares to, maybe, 20 times that many available via the usual process. Candidates with realistic prospects of reaching the interview round by the more conventional route would be unlikely to take their chances in the Scheme. Assuming that the nature and intention of the Scheme – to unearth potentially outstanding and unusual applicants who would otherwise have no prospect of being interviewed – were properly advertised, it also seems unlikely that relatively privileged applicants who simply could not make the grade in the usual application process would think it worth their while applying via the Scheme.

(3) Giving candidates with less glowing academic records a wild card interview in preference to candidates with better CVs would discriminate against the better qualified. If chambers are going to interview two extra candidates, shouldn’t they go to the two candidates who just missed the cut in the ordinary process?

If accepted, this argument would mean that no Scheme could ever be justified. However, the Scheme is intended to meet an entirely different need than the ordinary recruitment process. It ought not to be a question of whether one interviews two additional candidates from the elite group who, by reason of their opportunities and achievements in early life, make it beyond the initial paper filter or two wild card applicants. The two sets of candidates are not properly comparable. Without a Scheme the people likely to participate in it presently have no prospect of being interviewed at all.

(4) A candidate schooled in the Oxbridge one-to-one tutorial system is simply better able to cope with the cut and thrust of the interview process. Therefore what is the point of a wild card interview when those interviewees are bound to fail at that stage anyway?

I believe that there are two answers to this question. First, it may be that the interview procedures themselves are indirectly discriminating against large numbers of applicants, and not just wild cards, by being designed by the Oxbridge for the Oxbridge. Might not the procedures adopted themselves be a product of a self-perpetuation of recruitment of people remarkably like the recruiters themselves?

Secondly, the aim of the Scheme is the very modest one of providing access to the interview process to some of those now institutionally excluded. Candidates will be only too well aware of what they are likely to be up against once they make it through the doors of commercial chambers. Only the most self-confident and articulate are likely to apply. If, on rare occasions, interview panels cannot see the potential sitting in front of them, that will not be the fault of the Scheme. Given the intelligence, and fair-mindedness, of many members of the Commercial Bar and the fact that some of them have themselves started at disadvantages, it seems unlikely that no interview panel will ever be able to spot real talent and take a chance on it.

Extending access to the Bar

I have confined this article to the Commercial Bar only because it is within COMBAR that these matters have, so far as I know, been discussed. I have no doubt that similar issues arise in other parts of the Bar. I believe that the proposed Scheme could achieve some benefits across the whole Bar.
I would welcome any comments or suggestions about the possibility of using the above or any variant Wild Card Schemes to extend access to the Bar beyond the relatively narrow ambit of it current usual intake. E-mail:

Andrew Neish QC is a barrister at 4 Pump Court and a member of COMBAR’s Equality and Diversity Committee.