Pupil Diversity and the Wild Card Scheme

In the February issue of Counsel Andrew Neish QC put the case for a pupillage “Wild Card Scheme” and invited responses. Here, Simon Myerson QC sets out some drawbacks of the scheme

I would like to deal with some of the matters raised by Andrew Neish in his recent article, People like us. We ought to begin with why diversity is a good thing. There are, I think, two answers.

Firstly, there is an advantage to the Bar in representing the society in which we operate and which we seek to serve. There is a moral dimension to this as well: non-diversity is too close to discrimination to be comfortable. Secondly, that restricting our selection to a particular group – however academically talented – risks missing those who would be the most able barristers.

The wild card idea has three drawbacks. Firstly, it removes the responsibility for diversity from chambers. The proposal is that wild cards are allocated or randomly selected but chambers themselves should be capable of designing criteria which reflect achievements other than the academic. Secondly, it reinforces the idea of academic quality as the major determinant. Chambers should be encouraged to discover other qualities. And finally, it stops at interview. If the interview is designed to discriminate between candidates with superlative academic qualifications, it is unlikely to be a tool capable of choosing someone without them.

Setting up a system in which hopeless candidates are randomly selected for an interview designed to choose someone with wholly different qualifications is not diversity. Diversity is an acknowledgement that the current requirements are either too restrictive or are being operated in a way which deprives them of impact. The emphasis should be on identifying potential and widening the pool of pupils.
A start might be made by paying less. That would reduce the punt-taking considerably. Is it really the position that talented candidates would go elsewhere because they were only paid £30,000 to train? Is it really the case that the profession is desperate to attract those who will only join if they get £60,000 as they train?

Procedural fairness

We should impose procedural fairness. It is surprising, in a profession in which advancement is assisted by a clear statement of the competencies required, that it is not compulsory to offer candidates for pupillage the same opportunity. That would focus applications. It is depressing that we so often adopt the attainment of ever more stratospheric academic heights as the principal mechanism by which we choose pupils. I suspect that we do so because academic achievement is simultaneously easy to measure and deeply flattering to those doing the measuring. On analysis, professional success also requires other qualities: judgement; lucidity; robust self-belief; an ability to move on; a willingness to work hard at uncongenial tasks; an ease with many different people. That list is almost certainly incomplete yet, to the extent that these qualities are looked for at all, it is hard to argue that they are scrutinised in anything like the same detail or given anything like the same significance. Even if the current definition of academic brilliance (itself moot) is a suitable starting point, it would be sensible to assess it in the context of the development of pupils over the year and their expected future development.

For those sets in the happy position of being able to afford two well-paid pupils why not design two different sets of criteria, both open to all? One pupil would be accepted according to each. They could slug it out and Chambers would make its decision – both, one or none – in the usual way. The opening of eyes to the possibility of merit arising other than from brilliance would be an obvious benefit. Even clients might like it. ?

Simon Myerson QC, St Paul’s Chambers, Leeds
(Crime) and Byrom Street Chambers, Manchester (Civil).