By Charlotte Harrison, University of Portsmouth and James Hand, University of Portsmouth

This year’s ‘Silks’ day (15 March 2021) saw the 500th woman barrister to be appointed Queen’s Counsel, 72 years after the first. At 34%, it also sees by far the largest proportion of women to be appointed as one of Her Majesty’s Counsel learned in the law, in recognition of excellence in advocacy. With the proportion of women barristers at the end of the year being 38.2%, the number appointed is, as noted by the Chair of the selection panel, for the first time almost in proportion with the relevant segment of the profession.  The number of Black, Asian or Minority Ethnic QC appointments was similarly proportionate this year to the numbers in the relevant segment of the profession (that is advocates of sufficient seniority) at around 12%. However, the Bar Standards Board’s (BSB) Report on Diversity at the Bar 2020 shows that historic disproportionality for women and for people from minority ethnic backgrounds continues. While the proportion of practising QCs is slowly improving, it continues to lag considerably behind (at 16.8% for women and 8.8% for BAME, around one-third and two-thirds respectively of the working age population). Moreover, while the total number of barristers from minority ethnic backgrounds is broadly proportional to the working age population, the proportion of women is some way from parity (at 38% against 50%) although when it comes to the future, the number of trainee barristers has seen women outnumber or equal men since 2015.

The solicitor’s branch of the profession is far larger in size (with some 150,000 practising solicitors as against 17,000 at the Bar) but arguably less visible. With more women than men qualifying as solicitors for over 20 years, parity between men and women practising as solicitors was reached in 2017. When it comes to being a partner of a law firm, however, the figure is again poorer, with 34% of partners in 2019 being women and the figure dropping to below 30% for firms with 50 plus partners. Looking at ethnicity, in general the proportion of Black lawyers reflects the population and the number of Asian lawyers exceeds the proportion of the population, and the proportion of partners is comparable to the proportion of solicitors. However, the Solicitors Regulation Authority (SRA) goes on to note that “Both Black and Asian lawyers are significantly underrepresented in mid to large size firms (those with six or more partners)” with the largest firms (50+ partners) “having the lowest proportion of BAME partners – only 8%”. The largest firms also have the highest proportion of lawyers that attended private schools at 32%, nearly 50% more than the profession which is in turn around 3 times the national figure (comparable figures for the Bar are hindered by there being no information for almost half those surveyed).

More visibly, women comprised 27% of High Court judges and 23% of judges in the Court of Appeal in the summer of 2020. However, January 2021 saw the number of women on the UK Supreme Court reduced to one (barely two years after the first majority female panels on the Court). Following Lady Rose’s arrival in April, unless the next appointees include women, the Court could return to having only one woman when Lady Arden retires within the next year. The first non-white Court of Appeal judge was appointed in 2017 and only 4% of High Court judges self-identified as BAME in 2020 (8% of all court judges and 12 of all tribunal judges). As regards social background, there has been a notable move to highlight in the announcement of appointments whether the judge was for example state-educated or the first in their family to go to university.

The benefits of a diverse and inclusive profession are manifold. It should go without saying that it is important to ensure the profession attracts and recruits the best people regardless of ethnicity, gender or other background – and a non-diverse workforce and segmented hierarchies are likely to be missing out on valuable talent and perpetuating a closed-shop image. That image can, as noted by the SRA, impair a firm’s reputation, undermine commercial success, and promote damaging group-think. More specifically across the legal profession, not reflecting the population it serves risks delegitimating it. It is manifestly important for the fair administration of justice that the protection of the rights and interests of all groups within society is ensured, and that their trust in it is maintained. As such, representativeness becomes a higher duty: to be seen to include, to understand and to serve a diverse society. Greater diversity in the profession may help re-focus the lens through which the law is made, reviewed, and applied (as illustrated by the likes of the various judgmentprojects).

Increased diversity in the legal profession is important at all levels of recruitment and career progression, and visible examples and statistics have the potential to influence the decisions of young people to aspire to enter the profession in the first place. The Sutton Trust has set out 5 steps to improving social mobility in the workforce. Recommendations include advertising and paying for placement opportunities, increasing transparency in the recruitment process, and contextual recruitment practices. The report also notes that it is not just recruitment practices that warrant attention; increased focus on inclusivity and transparency is also necessary to counter the so-called ‘leaky pipeline’ which results in high levels of attrition for lawyers from certain groups on the road to senior positions.

Ultimately, it is a moral imperative for employers and the professional regulators not just to promote, but to create, an inclusive, diverse, and representative legal profession to ensure it retains its integrity and the trust of the society it serves. This is widely acknowledged as a priority issue for the profession as indicated by recent research undertaken by the legal services consumer panel and a report published in 2019 by the Legal Services Board reviewing progress made by each legal services regulator against the Board’s outcomes set in 2017. That report recognised that the sector was becoming more diverse and applauded the progress that had been made by both the SRA and the BSB. However, it noted that more progress was needed particularly in terms of the representation of certain groups entering the profession and progression to senior roles. Early last year, the SRA published its five year review of its equality, diversity and inclusion work and reiterated its commitment in a report published late last year. This month, the Law Society published its Practical Toolkit for Women in the Law. However, it has been argued that a focus on data by individual employers is the real key tomaking progress in this area, as long as it is acted upon decisively. To that end, regulators and legal employershave a significant role to play in driving activity beyond reporting, general advice, or setting policy, to swift, meaningful and specific action to achieve a genuinely diverse and inclusive profession.