Race at the Bar: the time is now

On 5 November 2021, the Bar Council published what we hope will prove to be a seminal report on race inequality within the profession. This report, Race at the Bar, is the first produced on this issue since the Bar Council’s Race Working Group (RWG) was established in June 2020.

The report was commissioned to produce a set of recommendations for the Bar Council and Bar-based stakeholders to tackle race inequality at the Bar. It follows in the wake of numerous accounts over the last 18 months that have provided further evidence of the barriers that barristers from ethnic minority backgrounds, and especially Black and Asian women, face in building and progressing a rewarding career at the Bar.

Focusing on the practical ways in which the Bar can begin to tackle the underrepresentation of Black and Brown talent, it also collates and presents the latest evidence on race at the Bar in one document. As such, the report is extensive and this article does not purport to replace it. The report can be viewed here. Readers are encouraged to consider, disseminate, and ultimately apply the report’s recommendations in full, wherever applicable.

This article highlights the report’s key findings and its key takeaways – what we, as members of the Bar, can do better in ensuring we remove the systematic obstacles many barristers from ethnic minority communities face in building sustainable careers.

The report’s six key findings

1. There is incontrovertible evidence, in quantitative and qualitative terms, that barristers from ethnic minority backgrounds, and Black and Asian women, face systemic obstacles in building and progressing a sustainable and rewarding career at the Bar.
2. Candidates from ethnic minority backgrounds are less likely to obtain pupillage than candidates from White backgrounds, even when controlling for educational attainment with reference to evidence such as university ranking, Bar training course grade and degree class (BSB Diversity Data 2020).
3. Black and Asian women at the Bar are four times more likely to experience bullying and harassment at work than White men (Barristers’ Working Lives 2021).
4. Even when factoring in practice area, work volume, region and seniority – women earn on average less than men, Black men earn less than White men, Black and Asian women earn less than Black and Asian men, and Black women earn the least. The income differentials vary between practice area but are significant (BMIF: Criminal Legal Aid Review Report; BSB Research Report: Income at the Bar by Gender and Ethnicity November 2020).
5. Black and Asian barristers are underrepresented in taking silk. There are just 5 Black/Black British female QCs and 17 male Black/Black British QCs in England and Wales. There are 16 male and 9 female silks of mixed ethnicity. There are 17 Asian/Asian British female QCs and 60 male Asian/Asian British QCs. This compares to 1,300 White men and 286 White women (Queen’s Counsel Appointments data; Bar Council’s CRM data October 2021).
6. Black, Asian and other ethnic minority candidates are less successful in achieving judicial appointment; rates of recommendation from the eligible pool of applicants are an estimated 73%, 36% and 44% lower respectively, when compared with White candidates (Judicial Diversity Statistics 2021).

The report offers ways to tackle some of these findings by providing the Bar and its stakeholders with 23 detailed recommendations which will lead to change in all four of the areas the RWG was tasked to look at, namely:

• the culture of the Bar (its way of life);
• access (who gets in);
• retention (who stays in); and
• progression (who thrives and becomes leaders).

Next steps

Our expectation is that chambers and other Bar-based stakeholders, using their own and other available data, will consult on, identify, and formulate goals or targets to improve diversity within the areas of the law in which they operate. They will then take positive action using toolkits and other guidance produced by the Bar Council to achieve those goals. (See also the equality and diversity page on www.barcouncilethics.co.uk.)

In our view, we should be focusing our attention on seven key areas:

1. Mentoring opportunities

The roundtable discussion groups, that were held as part of the research for the report, identified the inequality of access to networks and contacts. Those who had the opportunity to be mentored or joined a professional network emphasised the usefulness of this in improving their career prospects. For groups that are less likely to have barristers within their family or personal networks, for example, such networks are crucial in obtaining knowledge about how to enter the profession and undertaking crucial preparation for pupillage interviews.

2. The selection criteria for who gets pupillage

A number of candidates from underrepresented groups do not have the opportunity to make themselves stand out by undertaking mini-pupillages and unpaid internships. While there are initiatives aiming to rectify this, for example, the 10,000 Black Interns programme and Charter for Black Talent, the fact is that many interview panellists still do not seem to understand the gap in opportunity that currently exists.

The mitigating circumstance sections of pupillage applications frequently do not provide applicants with sufficient opportunity to expand on knowledge and strengths gained by adversity or along the non-traditional routes. Recruitment strategies which adjust the weightings attributed to mitigating circumstances and interview questions which allow candidates to stand out at interview based on a more diverse range of experiences (‘tell us about a challenge that you faced’), can all provide a more holistic view of an individual’s abilities in the context of their lived experiences and the opportunities that have been available to them.

3. The recruitment experiences of candidates both during interview and afterwards

No-one should underestimate the importance of diverse pupillage panels, and how significant it can be for a candidate to be told of the panel in advance of interview. It can markedly improve confidence for a candidate to enter a room in the knowledge that they will not be the only person from an ethnic minority background in the room at such an important interview.

Further, for many unsuccessful candidates, it may be unclear why they have not been selected when compared to their comparable White counterparts. To mitigate this, transparency is key. Chambers must get better at providing candidates with as much feedback as possible at each stage of the application process, for example by scoring data. If this is not viable, chambers should provide more generalised feedback and an insight into their selection process.

4. Access to the quality work and then ensuring that barristers from ethnic minority backgrounds are properly remunerated for the work they do

In publicly funded areas of practice, there are severe financial challenges for self-employed barristers. This disproportionately affects the retention of women, and also barristers from minority ethnic groups. Consequently, those who fall into both categories are particularly affected.

Concerns were raised in roundtable discussion groups about unfair allocation of work. Sometimes this can be due to the practices of chambers’ clerks routinely giving the better briefs to select, ‘star’ individuals in chambers. At the other end of the spectrum, it can be due to more senior members of chambers making decisions about who they choose as their juniors on cases, and repeatedly choosing the same individuals. The practices of clerks, leaders and solicitors all contribute to disparities in experiences when it comes to access to work. These will need to be improved upon to ensure positive change in retention, as well as – crucially – progression (dealt with further below).

The first way of countering this problem is to improve transparency and monitoring. While recognising the challenges for chambers in doing so, the report is clear that barristers’ income should be monitored at chambers level by ethnicity, and the information used to support practice management. Barristers can assist by making sure they fill out relevant data monitoring forms so that chambers have an accurate picture of the data.

The report recommends that action plans are developed in chambers to address inequalities in work distribution and income by race in chambers, and by clients of the Bar. It has been suggested that the Bar Council establish a methodology and toolkit to support this monitoring of work distribution and income by race, as well as training/guidance for clerks and practice managers alike. This monitoring toolkit has now been published.

5. Representation of ethnic minorities at silk level

The report concludes that the system of multiple references, and the need for colleagues to encourage, support and validate an application process, could limit visibility and confidence in even making an application.

The report recommends that chambers set targets internally, then regularly monitor practice development, and support colleagues in making applications. Heads of chambers and pupil supervisors have a key role to play, too. There needs to be proactive nurturing and fostering of talent within chambers.

The report further recommends the development of more formal and structured sponsorship programmes (by this we mean proactive support for individuals) with the core purpose of achieving career-oriented results for Black/Mixed Black barristers.

6. Representation of ethnic minorities on panels and at the judicial level

Part of achieving change on this front is about improving the diversity of the senior Bar (both QCs and senior barristers). However, it also has to do with ensuring that targets are considered for judicial appointments for barristers from ethnic minority backgrounds.

The Bar should therefore campaign and lobby:

• for panels, as well as the JAC, to ensure such targets are put in place; and
• the development of career pathways for barristers from underrepresented ethnic minority backgrounds to get onto panels and into the judiciary.

7. A change in the culture at the Bar

This is perhaps the biggest and most important change to make.

While the Bar’s history, language and traditions which are at the core of its culture can be important in many ways, by the same token, they can exclude and create a sense of ‘otherness’ in those for whom its rituals, language and behaviours are alien.

At the same time as feeling alienated by the culture, barristers from Black, Asian, and other ethnic minority backgrounds can feel hyper-visible, bullied, harassed, and marginalised at work, especially at court. Rates of bullying and harassment at work are far higher for Black and Asian barristers than for White barristers. Nearly 6 in 10 (58%) female, Black and minority ethnic barristers have personally experienced bullying and harassment at work or online compared to 15% of White men (almost four times the likelihood). For Black/Black British, African, and Caribbean barristers, more than half (53%) have reported personally experiencing bullying, harassment, or discrimination, compared to 26% of White respondents. Discrimination and bullying can come from judges and other barristers, as well as solicitors and clerks.

The RWG believes that the Bar’s culture is dynamic and can evolve, and that part of achieving change is through:

• improving access, retention and progression;
• improving knowledge and understanding – the report recommends this is achieved through training for all barristers on equality, diversity, and race awareness, with enhanced training being taken for any barrister taking on a leadership role (in their chambers, SBA/Circuits; silk or a judicial appointment);
• providing a more supportive work environment – this includes a zero-tolerance approach to bullying, harassment or discrimination with effective sanctions, and better support from a wellbeing perspective, eg forums or networks where collective experiences can be shared; and
• the narrative around leadership, representation, and visibility – only through a targeted and strategic approach being adopted to encourage Black and ethnic minority talent to stand and take up leadership positions can we ensure that the culture of the Bar truly changes at the top.

Time for action and change

The report is steeped in data as well as the lived experience of the participants and its overall message is clear – no more simply talking about the problem. Those who cannot get in or, once in, cannot stay, or experience stunted growth, are weary and bowed. This is our ‘Get Up/Stand Up’ moment – a time for action and change which is planned, specific, strategic, properly funded, and measurable.

To support effective target setting, the Race Working Group and the Bar Council will be working closely with the profession to develop guidance on setting targets.

We would welcome your feedback on the report and your views on successful target setting where it has worked (or indeed failed) and what you need to know from us in guidance.

To do so, please email: equality@barcouncil.org.uk