Statistics don’t lie but they often mask the truth. In 2001 of the 86,603 solicitors with practising certificates approximately 37% were women and approximately 6.5% were from an ethnic minority. By December 2003, there were 11,248 Barristers in private practice in England and Wales. Of that number 21% were women and approximately 10% from a mixed or ethnic minority background. Approximately 49% of those enrolled on BVC courses in 2002/2003 were from a mixed or ethnic minority background.

Despite those figures retention, progression and promotion of both women and ethnic minorities remains a problem that the profession must grapple with. It might be said that the legal profession has so far failed to deliver effective and meaningful approaches that would give confidence to ethnic minority entrants that their prospects are not to be inhibited merely because of their backgrounds.

Though the profession as a whole presents itself as a meritocracy in which individual success is based on individual ability, there persists a seemingly intractable perception that medium to large City firms remain closed shops. In those firms the principle of success based on merit is alive and well but it would appear, only for those who are white, male and/or present with the right university credentials.

A similar assessment is often made of the Bar as a whole. In particular it is said to apply to those sets of chambers that are perceived to be in the premiership or magic circle or those specialist sets of chambers whose practitioners work in what is seen as the more lucrative areas such as company and commercial, chancery, property or tax law.
The criticism that the profession is lagging behind on the issue of diversity extends to the governance and administration of the profession - those in positions of influence and leadership, charged with guiding and directing the profession are perceived as being predominantly male and white and to come from the same club.

The concerns about continuing inequalities affecting certain groups in the wider labour market are still present. Surveying the whole of the labour market in 2000, Kirton and Green stated, “If aggregate labour market data are only cursorily examined, it can be seen that certain social groups are disproportionately represented among those employees who are low status and low paid – women, minority ethnic, disabled and older people.” [The Dynamics of Managing Diversity]. Some might say that it inevitably follows that the legal profession would itself be subject to the same pressures as is experienced in other areas of society.

Moreover, these patterns are not restricted to the United Kingdom but are found in the United States and Canada. In the United States a study in 2002 conducted by MCCA Creating Pathways to Diversity on The Myth of the Meritocracy, found that women and minorities in the legal profession faced three principle obstacles that were key barriers to recruitment and advancement within the profession. Lack of flexibility in working patterns was an important feature that prevented women achieving a realistic work-life balance. Secondly, the profession seems still riddled with outmoded but pernicious and negative stereotyping. The report found that “Stereotypes and assumptions about women and minorities still exist, stifling their career growth and a firm’s diversity progress… Such stereotypes within law firms often do become ‘self fulfilling prophecies’”. Finally, there exists a prevailing myth of a meritocracy that is itself be an obstacle to advancement and diversity.

Progression and success may work for those selected but if the selection process is flawed and if the pool from which selection is made is drawn narrowly then it undermines and confounds the very notion of merit being the basis of success.
The factors identified as restricting entry into and promotion within the profession appear to be directly relevant to the experience of ethnic minority entrants and practitioners in the United Kingdom. Ethnic minority entrants to the profession consider that, when compared to their white counterparts, they have reduced prospects of being recruited by or promoted within these City firms. Even when recruited, training and career development that would result in exposure to work as advisers for large institutional or commercial clients seems to be restricted. The consequence of this is the very low numbers of partners from ethnic minorities that can be found in these firms. Barristers chambers operating in the same practice areas as these firms seem to show no greater commitment to achieving diversity. This state of affairs can only lead to disillusionment amongst minority practitioners and inevitably to a greater attrition rate than is healthy for the profession.

Given that broad assessment, the charge that the profession has failed to match the rhetoric of its policies with real action would seem irresistible. It would seem from the statistics quoted above that there is and will be a ready and able pool from which these chambers and firms could select. The figures do not explain why there is concentration of both ethnic minority practitioners and women in such very narrow practice bands. Ethnic minority practitioners are overwhelmingly employed by smaller firms that are involved in areas of practice that rely upon public funding – in crime and family work. The same is true of those that wish to pursue careers at the Bar where criminal and family work are very largely the areas that minority practitioners will find themselves steered into. These are practice areas that are often seen as low paid with limited career prospects. Recent government approaches to public funding has done nothing to build confidence on the part of minority practitioners that even these areas are now suitable areas for pursuing a career even if they desired to do so.

Whilst many women and ethnic minority practitioners make choices to build careers in criminal and family work, their over-representation in these areas and under-representation in others cannot be put down to individual choice. There is a real sense that, for example, women and ethnic minority practitioners whose aspirations lead them to wish to pursue careers in commercial areas of work, face considerable obstacles that militate against them realising those ambitions.

The reason for this imbalance may in part be that the profession has not hitherto applied a dynamic approach to their equal opportunities policy or implemented an effective and comprehensive diversity policy. It may not yet be fully appreciated that the mere existence of an equal opportunities policy does not eliminate pernicious discrimination, disadvantage and unfair treatment.

The development and implementation of an equal opportunities policy is the start, not the end, of the process by which those problems are tackled. In seeking to appoint on merit and successfully attracting and retaining the most able and talented, the profession needs to go further than point to the existence of an equal opportunities policy. The profession needs to place at the centre of its practices and procedures, and the centre of its very business ethic a diversity policy that incorporates equal opportunity measures that will identify the “brightest and the best” and which does not artificially limit the pool from which selection might be made.

Those who automatically associate discussions about equal opportunities and diversity with some misconceived idea that there is a call for a watering down of standards or some form of positive discrimination need not worry. This dynamic approach to diversity is about building more responsive and robust procedures - the aim is to eliminate those practices and procedures in recruitment and selection that so narrows the pool of talented individuals that the whole selection process itself becomes impaired. Diversity is about establishing consistent policies, systems, practices and procedures that enable the most talented to be identified, selected and promoted. Diversity is about enriching the profession. A strong diversity policy that informs selection and systems for training and career development is to the advantage of the profession and serves the public interest. A strong diversity policy will be the backdrop against which flexible working practices can be developed, it will, on the one hand serve to remove the perceptions that breed narrow ill-informed stereotyped views about women and minority entrants to the profession. On the other hand it will serve to remove and replace the myth of the meritocracy with the reality of meritocracy.

An effective policy on diversity will be both dynamic and responsive. Such a policy is incapable of succeeding unless it is incorporated as an integral part of an organisation’s business culture. The approach to diversity must be enshrined in all the aspects of the decision-making processes of individual firms and each set of chambers.

Increasingly public scrutiny will become focused on how the profession addresses these issues with communities looking to see how the profession’s commitment to equal opportunities is being put into effect. It is often said that the professional at all levels and in all areas should reflect the society and communities that the profession serves. This should not be taken to mean that diversity is merely about marketing aimed at achieving a structural synchronisation between the outward-facing parts of our businesses with that of our with that of our respective clients. Achieving diversity is about achieving success through the effective identification and nurturing of talent. Those that the profession serve whether in business, industry or government are working towards establishing successful policies on diversity. The legal profession is uniquely placed to show leadership in this area with innovative proactive approaches that genuinely reflect the shift in thinking that is required to achieve diversity. The wider public indeed deserve such an approach from the profession.

Whilst there is much work to be done there are a few initiatives that demonstrate that some within the profession recognise the problem and understand that the solution can be found in a dynamic diversity policy. A number of these large City firms have joined forces with the Bar to tackle these issues, to challenge the negative perceptions about the selection and recruitment process that might result in many self-selecting themselves out of competition, to share knowledge and develop policies on diversity. It signals a new commitment on the part of these firms to engage in the process of change that hopefully will be embraced by those involved in strategic decision making for other firms, whether small or large.

The Bar Council in dealing with the many challenges affecting the profession, including ensuring that a successful and vibrant independent referral Bar is able to attract the very best candidates, whatever their background, must set diversity at the core of future policy. The present and past Chairman has reiterated the Bar’s commitment to achieving this aim. The Circuits too are increasingly aware of the need to strengthen their representative roles by ensuring that the diverse composition of their membership is reflected in the leadership and the management of Circuit affairs. There are other encouraging signs too emanating from the professional associations (notably, the Family Law Bar Association and the Criminal Bar Association) that the emergence of a dynamic diversity policy is of vital importance for the future of the profession. This view is one that would benefit other professional associations, particularly those operating in the commercial sector, seeking to make a positive contribution to the debate on the issue of the openness of the profession as it affects their particular areas.

These initiatives are the start. They recognise the importance for the future development, consolidation and growth of the profession of a system of selection, recruitment and promotion anchored in a business ethic that has diversity as one of its central tenets. Dynamic proactive views of diversity can only enhance the profession. Having unmasked the truth behind the statistics it is clear that those committed to building and maintaining public confidence in the integrity of the profession can achieve that goal in part by implementing dynamic policies on diversity that will serve to dispel the myth about the meritocracy.

Karl King, Barrister, Hardwicke Building
Karl King is in Chambers at Hardwicke Building and has been a practicing Barrister since 1985. Karl’s practice is entirely civil, the main focus being in property but including commercial and residential landlord and tenant work and housing. Karl is head of Chambers Housing Team. In 2000 Karl became an elected member of the South Eastern Circuit and is Chair of the South Eastern Circuit’s Minorities Committee representing the interests of practitioners on the wide range of issues that impact on professional life. Karl is also a member of a recently formed Steering Group that has been established to examine and advise on diversity in the legal profession. Chairing the Steering Group is Brenda King, Chair of African & Caribbean Diversity and other members include Stephen Hockey (Managing Director, Michael Page Legal) and HR practitioners from Clifford Chance, Baker & McKenzie and other leading law firms.