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Is there still a bar to diversity?

About The Author

Georgia Mitchell (Writer)

Georgia is in her second year of Law at Newcastle University. She is currently pursuing a career as a commercial solicitor, and hopes to work abroad within the EU at some point in her future career. Outside of her studies, Georgia is an avid tennis fan.

With legislation such as the Sex Discrimination Act 1975 and the Equality Act 2010 already in existence, minority groups are continuing to gain an ever increasing representation within the workplace. Even so, there is still evidence of occupational segregation between those embarking on a legal career. Despite successes such as Baroness Hale becoming a judge and the deputy president of the United Kingdom Supreme Court, the upper levels of the legal profession appear to be dominated by white, British males.

Barristers are specialists in advocacy and represent individuals or organisations in court. They are independent sources of legal advice and can advise clients on their case. In 2012, the Bar Standards Board (BSB) recorded 12,680 barristers operating within independent practices in England and Wales of which 8,420 were men and just 4,117 women. 10,215 were self-classified as ‘white British’. The Bar Standards Board has set itself a minimum target of collecting at least 30% of all diversity data from barristers on sexuality, religion and disability in attempt to tackle these uneven figures. The board is also planning more initiatives to counter under-representation of women at the Bar, as well as others to reduce reports of harassment and discrimination.

A BSB spokesman commented: ‘In January 2014 we introduced the new BSB Handbook and a new duty on barristers to report and self-report serious misconduct, including harassment and discrimination’. As set out in their new equality objectives, they will be monitoring these reports to gauge levels of compliance with the new guidelines. All relevant data will be reviewed by their equality team who will set out key recommendations for action. The BSB has set itself internal equality objectives to improve the diversity of its board and committees, and to ensure it is in possession of up-to-date information related to board and committee members.

Alongside this, schemes have been implemented by the Inns of Court and other various chambers to further improve diversity at the Bar. In 2012, the Pegasus Access Scheme was introduced by the Honourable Society of the Inner Temple with its modus operandi to encourage social mobility and diversity across the profession. In association with 58 chambers, the scheme is aimed at ensuring that students with the capability and determination to pursue a career at the Bar have the opportunity to undertake formal work experience and access key career opportunities, regardless of their background or networks.

Despite these initiatives and equality rules having been introduced in 2012, the BSB has rightly observed that the essential problem of the under-representation of women still applies today. They learned that numbers of women at the Bar seems to decrease sharply approximately 12 years after qualification. Liz Duff and Lisa Webley declared some of the possible reasons for this problem of attrition in a 2004 Law Society Study. It was found that women are more likely to pursue employment in non-legal settings, and family responsibilities result in a ‘broken career path’. Baroness Hale additionally declares in her recent lecture of June 2014 that the pressures of ‘presenteeism’ in top firms prove difficult to combine with a normal family life. ‘Presenteeism’ can be defined as a personal insecurity felt about one’s job which commonly results in an employee being pressurised into working for more hours than is contractually or even morally required. The ensuing work-life imbalance inevitably conflicts with vital family commitments and may destabilise employees’ levels of fulfilment and motivation.

Traditionally, members of the judiciary are selected from the most senior members of the Bar. This means that an increased emphasis on this pipeline of talent is crucial if the judiciary of the future is to become more diverse. There remain a number of potential obstacles likely to impede some barristers in their quest to reach the pinnacle of the legal system. One such constraint is that recent cuts made to legal aid have forced many to forsake their careers in the face of reduced earning power. Significant changes to civil legal aid in England and Wales came into effect on 1 April 2013 as part of a plan to reform the system and save £350m a year. Modifications to civil fees and charges commanded by legal experts will also be introduced to ensure that these represent value for money, and compare favourably with similar services elsewhere. This will involve a reduction in fees of 20% with the resultant decline in the wherewithal of civil lawyers in general to serve clients’ needs.

The proposed cuts to legal aid have not only compromised the availability of civil lawyers but that of their criminal counterparts as well. Many barristers have protested, fearing the anticipated 30% reduction will fundamentally damage the criminal justice system by restricting access to legal advice and representation. Concerns also exist that such steps will also severely impact the quality of representation available to those still eligible. Potential future lawyers will inevitably be dissuaded from applying to the Bar and the limitations placed on legal aid will entirely exclude less fortunate, prospective lawyers from the criminal Bar. This means there will continue to be little diversity in the socio-economic backgrounds of lawyers at the Bar.

Nicola Hill, president of the London Criminal Courts Solicitors Association, predicted that cuts would ‘mean that law firms will rapidly go to the wall in their hundreds, leaving people who can’t afford to pay privately with only the crumbs of legal aid. Firms will sack experienced, more expensive solicitors, replacing them with those who are unqualified and cheap'.

This, she anticipated, will have a damaging effect upon ambitious young lawyers and a negative impact on diversity. Baroness Hale claimed that cuts to legal aid will see fewer senior women venture into the legal profession and only serve to assist males with privileged educational backgrounds in reaching the career summit to the detriment of less advantaged competitors. Baroness Hale expanded her argument by stating that cuts to publicly-funded work will preclude progression to a lucrative law career, a state of affairs inadvertently bound to have an adverse effect on aspiring female barristers already managing the dichotomy of legal work and childcare. 

Barristers face an average reduction of 6% in their fees from the summer of 2015, as part of wider reforms designed to drastically reduce the £2 billion legal aid budget. The cuts will not only inconvenience many female barristers juggling important domestic responsibilities (according to Baroness Hale) but might, as opportunities for casework decline further, also see a downturn in the numbers of females entertaining the idea of  a law career. Baroness Hale criticised the ‘assumption that only the top barristers get the top judging jobs, meaning ‘the pool out of which they’re fishing for top judicial jobs is already heavily weighted with men’.

Looking beyond the Bar, there is evidence of a significant lack of gender balance in the judiciary as a whole in England and Wales. The 2012 annual statistics for the judiciary states that just 22.5% of the judges in ordinary courts are women and 4.2% are BME. However, the statistics appear to be even more controversial at higher levels of the judiciary with only 7 out of 38 judges in the Court of Appeal being women whilst absolutely no females or ethnic minorities have ever adopted the role of judge within the 5 heads of division.

Lord Neuberger, President of the Supreme Court has acknowledged that the senior judiciary is monolithic and ethnic minorities are greatly under-represented. He states that there has been some promising progress in addressing gender equality, but women, and in particular ethnic minorities, are still suffering from discrimination at the upper levels of the judiciary. Whilst women now represent 18% of judges in the Court of Appeal, there remain no ethnic minority judges. In the High Court, women take up 15% of the 110 judges while just 5% are non-white.

Members of the judiciary point out that, considering judges are selected from those who have historically attained the most senior positions, their current profile is likely to be more reflective of the legal profession thirty years ago. The ‘trickle up’ theory has long since been a highly prevalent belief, assuming as it does that in time the constitution of the judiciary will evolve fairly and that members of minority groups will ultimately graduate to their rightful places amongst the hierarchy of the legal system.

Is a diverse judiciary important?

It is indisputable that rich diversity within the judiciary is fundamental to a truly democratic and legitimate legal system. It plays a quintessential part in enabling the enforcement of key acts, preventing discrimination and infringements of the rights of the nation’s citizens. Only where there is diversity within a body that arbitrate in matters of considerable import will UK society find that its blend of cultures, genders and religions are reasonably and respectfully protected and promoted by the law.

The question of ‘who actually judges’ becomes far less relevant when the issue of merit is addressed. On the face of it, it would seem entirely appropriate to believe the ‘best’ person for the job should be appointed where their personal qualities and credentials have been rigorously scrutinised. Is it acceptable, though, that merit should always outweigh matters pertaining to gender and race on the scales of employability? Certainly s. 63 of the Constitutional Reform Act 2005 is highly influential and persuasive in stating categorically that selection must be made ‘solely on merit’. Many deservedly entertain the view that a judicial role rooted in reason, argument and integrity, completely discounts the relevance of genderal or racial issues. An eminent judge consistently discharges his duties irrespective of superficial factors such as these.

Undeniably, however, there are manifest benefits to be derived from much greater judicial diversity. It affords equal opportunities for all aspirational individuals harbouring lofty ambitions within the field of law. It also lends weight and credibility to the decisions and outcomes of judicial reviews. Baroness Hale has also noted that there are benefits from integrating a more diverse perspective into the judiciary. She maintains that a judiciary comprised of a broader range of backgrounds and experiences will usher in an era characterised by a ‘better kind’ of judging. The issue of judicial diversity has attracted increased political attention over the past two decades and has culminated in a consensual view- according to Baroness Hale in 2006 - that ‘a diverse judiciary is an indispensable requirement for any democracy’.

Alongside this, the Neuberger Advisory Panel of Judicial Diversity 2010 found that there is a strong case for judicial diversity. It reached the view that there should “be equality of opportunity for those eligible to apply” and “in a democratic society the judiciary should reflect the diversity of society and the legal profession as a whole.” Judges drawn from a wide range of societal starting points would bring varying perspectives to bear on critical legal issues. It stated that a judiciary which more closely mirrors the everyday world of the people will doubtless inspire more public confidence.

Generally, there is now a prevailing opinion expressed by the Equality and Human Rights Commission 2008 as well as by Durham University politics professor Judith Squires, that decades of policy formulation dedicated to equal opportunities seems not to have resulted in effective change. Instead, as remarked upon by another UK law professor Erika Rackley, there exists a ‘truth almost universally acknowledged’ that the judiciary, especially in its upper echelons, should now become significantly more representative of those whose matters it is required to serve.

It was recommended that a statutory duty should be placed on the Judicial Appointments Commission (JAC) to promote diversity. This is reflected in s. 64 Constitutional Reform Act 2005 which declares the Commission ‘must have regard to the need to encourage diversity in the range of persons available for selection for appointments’. However this duty only relates to applications, not to appointments: s. 63 states the overriding duty is to select on merit alone, limiting the duty to being a mere ‘encouragement’ of diversity. Additionally, theJAC can only appoint to the judiciary those who are eligible and willing to put themselves forward in the first place.

Finally, Helen Grant MP said:

The number of women achieving positions in the judiciary is encouraging and shows that our continued focus on the issue of diversity is having an effect. The work done by Government, the JAC and other partners is key to keeping up this momentum.

With this in mind, even though it is unquestionable that more diversity is required within the Bar and within the judiciary as a whole, it is reassuring to note that progress is being made. With professional bodies, firms and even clients themselves continuing to press the case for diversity at all levels, the march towards a satisfactory solution is surely as inexorable as it is just.

Further reading

Nick Hilborne, Legal Futures, ‘BSB bids to improve barristers’ reporting of certain diversity data

Terri Judd, The Independent, ‘Legal Profession must do more to improve ethnic diversity

Crispin Passmore, The Guardian, ‘The case for diversity, legal profession’s white

Lizz Duffy & Lisa Webley, The Law Society, ‘Equality and Diversity

Baroness Hale, Supreme Court, ‘Women in the Judiciary

Advisory panel on Judicial Diversity, 2010 report

Louisa Peacock, The Telegraph, ‘Legal aid cuts will help public school boys get to the top

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Tagged: Legal Careers

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