Diversity at the bar, for Lord Neuberger, is an essential element not only for the credibility of the profession but also its continued success.1 But, as a profession, it continues to be one of the least diverse. Moreover its programmes to increase access lack the necessary impetus to effect real change and do not address the overwhelming structural problems that persist which limit true access to the bar.
In no other profession would the statistics that plague the Bar be accepted. While improvements have been made in relation to race, gender and disability access all those risk being overshadowed by pure economics; the chances of success at the Bar being directly linked not to skill or aptitude but wealth. A 2009 White Paper report into the professions noted that access to professions and especially law is diminishing, affecting not just the poorest in society but every level apart from the wealthiest in society. 2
Yet the solution is elegant in its simplicity. By introducing an age limit on entry to the bar so that a candidate turns 25 during the year of your pupillage you change the emphasis of the profession which can be already shown to be an ultra-graduate profession and enable those with real commitment and passion, from whatever background, to have equal access.
A system designed for you to only get so far
The current programmes to open up the bar include all manner of programmes that aim to connect those from non-traditional backgrounds with barristers. Indeed, the ex-chairman of the Bar Council, Michel Todd QC, aimed to promote equality of opportunity to the bar through dedicated school speakers3. Targeting schools is a common recommendation: a 2007 report by The Working Group, on Entry to the Bar, made no less than 15 recommendations about the bar reaching out school children4.
Yet the bar has never had problems with advertising. As a profession it is instantly recognisable from TV shows such as Silk, Law and Order and Judge John Deed. The power of these shows to even put the profession in the national consciousness should never be under-estimated. The logic behind Inner’s Temple unfortunately named Pegasus programme5 and the targeting of school children is, in essence, the problem with the bar; the number and complexity of hoops that have to be jumped through mean that anyone striving to the top has to start at a very young age. With just over 3,300 schools in the country and roughly 12,000 barristers within England and Wales, it should be a simple enough step for all barristers to play their part in increasing openness to the bar. However, reaching out to individuals will have a much smaller effect than making real and lasting changes to the actually structure of recruitment. Once the pressure drops the similar problems emerge and the whole cycle must start again.
Structural conditions almost inevitably mean that pseudo-nepotism is necessary in order to get a foot in the door. Application forms for mini-pupillages, pupillages and scholarships all contain large boxes awaiting information on mooting, debating and legal experience. These experiences are not equally available to all by the time they receive these forms, but are hugely important; digesting and analysing legislation for mooting gives you exposure to a particular set of skills that unless you have had extensive experience of the style and language of 1920s legislators, candidates cannot get anywhere else. With most pupillages applied for 18 months in advance, candidates need to have already applied for the mini- pupillage or work experience up to a year before that date. The fact that the Bar needs a set of skills found in few experiences means that the lack of opportunities and information amounts to a significant block on the chances of candidates.
Instead, the best positioned will be those with the greatest access to information, either fee paying schools which have the levels of careers services that state schools could only dream of, or where they have relatives within the law profession. Around 43%of barristers went to private schools6 so the two factors could quite conceivably be working in tandem. Gone are the days when a job could be secured via a secret handshake but connections still provide tremendous advantages. The aim of setting a specific but low age requirement is to make sure people have the time and capacity to get to the information they need in order to enjoy a career at the Bar. It also has the additional benefit of removing the pressure for people to use or even offer informal routes to experience.
Making the same opportunities available to all
A defined age requirement would ensure that, at the point of application, everyone has had fair access to the information and the best possible chance of securing the experiences necessary to succeed. The Bar-exclusive experiences that are needed are better offered and enjoyed by those already past the degree stage not schoolchildren, seeing as their competitors will often have masters or doctorates. Furthermore the age requirement will not put an cumbersome burden on those already committed to a career at the bar; the time spent working in areas of specialism or within the commercial sector would undoubtedly help themselves and the profession.
The setting of an age requirements would codify rather than transform an existing trend towards recruitment at the Bar. Information on pupils from the Magic Circle Chambers in 2010/2011 sees 81% having ultra-graduate education beyond a Law Degree or GDL and BPTC. Indeed, doctorates and years spent within a solicitors firm are both as common as these standard qualifications.7 Experience and years spent before coming to the Bar is the norm not the exception.
The necessity of a codified age requirement would be top provide clarity to the Bar, a profession that has often been accused of hiding behind the tall walls of the Inns. This means that those from all backgrounds clearly know when they have to apply and plan their job commitments accordingly. Furthermore it irons out the differences between those, often from Oxbridge or private education, who have had extensive one on one tuition who are often see to interview better.
The proposal clearly addresses an urgent problem with the Bar that has yet to be dealt with to an appreciable extent. Strides have been made in race, gender and disability access to the bar, yet the continued campaign needs to ensure that candidates from all economic backgrounds have access to a profession that needs to maintain recruitment from the very best. The argument that if a candidate is good enough then they will make it, is an easy way to pledge for inaction. It overlooks that each pupillage that is taken by one candidate reduces the hope for another. Why should a person from a poorer background be better, not equal, to those from a wealthier background to even get an interview? In such a small profession where recruitment varies per year it is vital that each candidate is offered the same chances to ensure open access.
Age discrimination legislation allows for proposals that are discriminatory as long as they are in pursuit of a legitimate aim and are proportionate.8 The aim is beyond question; the method proposed is a simple but bold solution to ensure that information and experiences which are crucial to obtaining a place at the Bar are equally open to all.
Multiple problems, multiple solutions
This proposal quite clearly leaves one major question unanswered in terms of diversity at the bar, namely the proportion of women who are admitted and retained in the profession. Many aspects of life at the Bar have changed since Helena Kennedy’s famous portrayal in EveWas Framed,9 yet significant problems still exist. The higher attrition rates for women after 10 years of call a clear problem that has to be dealt with.10 Nevertheless the Bar remains an attractive option for women: 57% of barristers under 30 are women. Adding an age restriction is unlikely to be an impediment to women’s access to the Bar. Instead the challenge is to ensure the retention of women in the profession. The challenge to ensure open access needs multiple solutions but it’s needs dynamic solutions.
1 Lord Neuberger, Final Report of Working Party: Entry to the Bar, http://cms.barcouncil.rroom.net/assets/documents/FinalReportNeuberger.pdf pg 5
2 Unleashing Ambition: The Final Report of the Panel of Fair Access to the Professions
4 Final Report of Working Party: Entry to the Bar
5 Unfortunately named as although it was obviously intended to invoke symbolism of inspiration and elevation it hardly removes the image of a profession trapped in a bygone era
7 Information taken from Brick Court, One Essex Court, Essex Court, Blackstone and Fountain Court Chambers
8 Section 13(2) Equalities Act 2010
9 Kennedy, Helena, Eve Was Framed, (Vintage, 2005)