The Bar remains dominated by those from a certain socio-economic background, with the expense of training the greatest obstacle to entry, says James Robottom.
Along with the upper judiciary, the Bar it forms a key part of the British establishment. Its traditions, dress, even its language – ‘chambers’ and ‘robing’ – are more redolent of a period drama than a modern, diverse society. The historic image of the Bar is clear: white, male, Oxbridge, and privately educated.
However, it is making attempts to change. In 2007 came the landmark report of a working party on chaired by Lord Neuberger. The report advocated a series of reforms, aimed at each of the different institutions who affect the demographic of the Bar.
It concluded with the stirring observation that: ‘the Bar can only flourish and retain public confidence if it is a diverse and inclusive profession’ Following the report, the Inns of Court and the Bar Council in particular stepped up efforts to increase the diversity of the profession.
One of the reforms advocated was that: ‘All barristers involved in selecting assessed mini-pupils and tenants should be required to be trained in non-discriminatory selection procedures.’
Some seven years later, the Council’s ‘fair recruitment rule’ came into force. It requires that every member of chambers’ selection panels receive training in fair recruitment processes. The width of the application of the rule however is offset by both the level of training required (as the Council makes clear, the requirement can be satisfied by reading the Council’s own 69-page Fair Recruitment Guide), and the extent to which it remains up to the individual chambers to decide on their own procedures.
The guide is designed to assist sets of chambers in meeting the Bar Code of Conduct rules on recruitment and training. Paragraph 408 of the code now both requires sets of chambers to ‘use objective and fair criteria’ in selecting candidates, and also undertake regular equality monitoring of applications, which ‘must include’ collecting and analysing data broken down by race, gender and disability.
It may therefore be possible in the future for individual sets of chambers to assess whether real progress is being made. The Council, for its part, also now publishes its annual Diversity Profile, a statistical self-assessment. While the sources for the data are voluntary, the 2014 Profile states that the Council is ‘committed to providing clear and transparent statistical diversity data and in future we hope to report more fully across all the protected characteristics as data collection is enhanced.’ That’s a start then. But the bare facts of the statistics which are available still speak for themselves. Some 44 per cent of the Bar in the 2013 survey attended a fee paying school – far higher than the percentage of children in the general population who attend such schools – and 65 per cent were male.
What then, might be the barriers to further progress being made?
The Bar is inherently unwieldy. Chambers are collections of self-employed individuals, lacking the HR departments of large businesses and solicitors firms. The inability of the Council to impose fair recruitment procedures is demonstrated in the terms of the Fair Recruitment Guide referred to above. Chapter 2 is designed to avoid ‘bias in recruitment.’
It suggests common forms of bias, among them being: ‘Believing that students from certain universities are more likely to be of a high academic standard than students from elsewhere, and allowing that belief to pre-judge a candidate rather than allowing the candidate’s performance to determine the assessment’. The guide cannot, and does not, however, seek to impose a rule that chambers treat graduate’s qualifications from all universities qualifications equally.
Should the Bar alone shoulder all of the blame? We exist in a world where universities are ranked by their excellence and where there is great competition to access the most prestigious institutions.
The Bar, like other professions, can only get involved in selection when candidates have already been through the undergraduate process. Increasing diversity of access to the top universities is an issue for society as a whole, and responsibility must be shared by the universities and institutions who help shape a candidate’s career at an earlier stage.
The 2014 entry fee for the Bar Professional Training Course (BPTC) in various institutions in London was from £17,000. This is on top of tuition fees payable during earlier undergraduate and postgraduate study. Undertaking the BPTC is compulsorily in order to qualify as a barrister, and there have long been concerns about both the level of fees charged, which rise year on year, and the number of students who complete the course only to fail to secure pupillage and later tenancy.
While the Inns of Court and the course providers themselves do offer scholarships for aspiring barristers, only a handful of top chambers offer any financial assistance with the BPTC. The availability of funding for aspiring barristers contrasts sharply with that for solicitors from top law firms. On the Legal Practice Course (LPC) at certain institutions, students will be grouped together according to the firm they are to undertake their training at. That firm will pay their fees, often for both the conversion and the LPC, as well as a stipend to live on. There are literally hundreds of such places available at top firms every year.
While the big city law firms effectively fund for-profit law schools to train their future trainees, applicants to the Bar (and, it has to be said, to less affluent solicitors’ firms) are left with comparable fees but nothing like the level of funding and support.
Quite what justifies charging these fees for the BPTC is unclear. But the expense, combined with frightening statistics on the numbers of successful applications to the Bar, must be considered the greatest impediment to enabling the most able students to access the profession, regardless of socio-economic background, race, gender, or disability.
The professional training qualification stage for the Bar is rotten, and requires a radical rethink, perhaps with the Inns of Court and chambers playing a greater role and the BPTC being scrapped altogether. Otherwise, while projects such as the Council’s excellent Bar Placement Week have a vital role to play in ensuring greater numbers from underprivileged backgrounds understand what it is like to be a barrister in the short term, there seems little prospect of significant long-term progress in making the Bar itself more reflective of the diverse society it represents.
This article was first published by Solicitors Journal in October 2014, and is reproduced by kind permission.