Barristers

A. Patterns of Employment

In 2011, 15,581 barristers held practising certificates.¹⁷⁵ There were 12,674 self­employed barristers, comprising 81 per cent of this total, and 2,907 employed bar­risters, comprising 19 per cent.¹⁷⁶ There were 427 sole practitioners but the rest of the self-employed Bar were in 768 chambers.

B. Organisation

Chambers is nominally a mechanism for self-employed barristers to share costs. Each one is serviced by a team of clerks which, among other tasks, allocate work to bar­risters and negotiate the barristers’ brief fees with solicitors. They are headed by a chief clerk. At one time the chief clerk took a percentage of the fees of all barristers in chambers. This is now giving way to different arrangements, including some chambers doing without a clerk. There are around 1,200 barristers’ clerks and a professional association, the Institute of Barristers’ Clerks. Members have a code of conduct¹⁷⁷ and are expected to also know the Bar Code of Conduct.

C. Obligations

Despite the unusual status of chambers as a collective of self-employed professionals, they have considerable collective responsibility. Like the previous version, the new Bar Code of Conduct contains several rules directed specifically at chambers.¹⁷⁸ These require that barristers ensure that their chambers are administered competently and

¹⁷⁴ M Mullally, ‘A Step Forward’ Legal Director 17 August 2004.

¹⁷⁵ J Sauboorah, Bar Barometer: Trends in the Profile of the Bar (London, Bar Standards Board/Bar Council, 2012).

¹⁷⁶ ibid.

¹⁷⁷ IBC, Code of Conduct for Institute of Barristers' Clerks (www.ibc.org.uk/about/code_of_conduct/).

¹⁷⁸ BSB, Bar Code of Conduct 2014, ch 5.3: Chambers rC89.

Chambers are required to have ‘corporate’ arrangements for managing conflicts of interest and ensuring client confidentiality. They must also ensure that non-authorised persons working in chambers are competent to carry out their duties and are aware of provisions of the Handbook affecting the performance. There must be systems in place in chambers to ensure, inter alia, the independence of individual members of chambers from one another.

D. Pupillage

i. A Brief History

In 1863, the Inns of Court created consolidated regulations covering admission of students, keeping of terms, conditions of call to the Bar and the grant of practising certificates. At this time it was customary to be tutored by a senior practitioner.^[2641] In 1847, students were advised to spend a year with a conveyancer or equity draftsman, then six months each with a special pleader or common law barrister and a solicitor, and finally another half-year with a barrister.^[2642] The premium for pupillage was 200 guineas but later became 100 guineas for one year.

In 1959, a requirement for completion of 12 months’ pupillage, with a qualified pupil supervisor was imposed as a requirement for practice. In 1971, following the Ormrod Committee on Legal Education recommendation, entry to the Bar was restricted to university graduates. It was not until 1975 that supervisors were stopped from charging pupillage fees. Some chambers then began offering bursaries.

In 1989, the Bar Council decided that pupils should receive a wage. Three com­mittees then failed to settle an acceptable rate or mechanism for implementation. In 1998, a working party recommended implementation,^[2643] but there were then concerns that some pupils fell within the terms of the Minimum Wage Act 1998 and that the amount set by the Bar Council would be inadequate.

In 2000, it was decided to pay all pupils, although it was possible for a pupillage that was not intended to be funded to be approved by the Bar Council. In 2002, the Bar Council announced that pupils would be paid a minimum amount, initially set at £10,000 annually. There was anxiety that this, combined with increasing regulation of pupillage, would create disincentives for chambers thinking about taking pupils, reducing an already short supply of available pupillages.

The numbers commencing their first six in 2001-02 was 812 compared with 518 over the same period in 2003-04. In the year ending 30 September 2007, 527 first six and 563 second six pupillages were registered.^[2645] Funding pupillage therefore exacer­bated an already short supply, but not by as much as feared in the long term. Typically there are only ever enough pupillages for about a quarter of those eligible.

At the same time as announcing funded pupillages, the Bar published regulations requiring that all pupillages commencing after 1 January 2003 should be advertised in accordance with the Bar Equality and Diversity Code. Then the Bar attempted to mitigate unfair recruitment practices by introducing a clearing system, but some chambers simply opted out of the process.

In the late-1980s, concerns about recruitment and the quality of pupillage led the Bar Council to commission a longitudinal study. The Bar cohort study was based on a survey of 822 students entering practice. It covered three years from the vocational course taken in 1989/90, through pupillage in 1991 to practice in 1993.^[2646] In the mid- 1990s two reports led to the conclusion that the quality problems in pupillage training lay not in the structure or written guidance, but in the implementation of pupillage guidelines.^[2647]

As a result of the reports on pupillage, the Bar Council published a Guide to Good Practice in Pupillage.

ii. Prerequisites

Before commencing pupillage a barrister must sign a declaration and undertaking,^[2649] the Standard Declaration of Call, and be called to the Bar. No period in cham­bers completed before commencement counts towards the period of pupillage. The Standard Declaration of Call requires disclosure, inter alia, of criminal offences and other matters 'which might reasonably be expected to affect the mind of a Bencher of the Inn considering your application’. An applicant must also declare that ‘so long as I remain a barrister I will observe the Code of Conduct’.^[2650] Falsification or breach of the declaration constitutes professional misconduct.^[2651]

iii. Structure and Content

An intending barrister’s pupillage is divided into a non-practising six months, ‘first six’, and a practising six months, ‘second six’.^[2652] Both or either six can be in private or employed practice. Both periods must be spent with a trained pupil supervisor approved by the Bar Council. A Pupil Master must be entered on the Bar Council’s register and, unless approval is given, may only take one pupil at a time.^[2653] The obliga­tions owed by the supervisor to the pupil barrister were set out in the old Bar Code and applied to employed barristers since 20 03.^[2654]2 The new Handbook contains sec­tions on diversity and pupillage funding.^[2655]

The first six is intended to be spent working on the supervisor’s cases, reading and researching, and the second six working on one’s own account. All pupillages should involve training in professional conduct and etiquette, practical experience of advocacy, conferences, negotiation and legal research.^[2656] Pupils must attend advocacy training and a course called Advice to Counsel.

Completion of the pupillage checklist must be confirmed by the pupil supervisor and retained by chambers for three years for review and monitoring by pupillage review panels. Weaknesses in advocacy must be reported to pupil supervisors and may be taken into account before signing the pupil’s certification form which confirms satisfactory completion of pupillage.

iv. Terms

The current minimum rate for pupillage is £12,000 although some top sets of commer­cial chambers, in an effort to compete with each other and large law firms, pay pupils over £60,000 per annum. Relatively few applications to waive payment are approved. Waivers may be given to overseas students intending to return home on completion of pupillage.

v. Quality

Detailed guidance on pupillage is provided to pupils, formerly in a pupillage file.^[2657] This was revised by the Bar Standards Board and reissued as a pupillage handbook in 2011.^[2658] It brings together the regulations with a commentary. Responsibility for the quality of pupillage falls on heads of chambers.^[2659] They must take all reasonable steps to make proper arrangements, including drawing up a chambers pupillage policy, making an annual return to the Bar Council, and appointing a Pupillage Training Principal to take responsibility for pupils and pupillage arrangements.

vi. Entry

a. Data

During the period from 2007 to 2011, the numbers of barristers holding practising certificates grew at nearly 1 per cent per annum.^[2660] In 2010/11, 1,494 barristers were called to the Bar. In the same year only 446 first six pupillages were registered, a decrease of 3 per cent on 460 in 2009/10. The higher number of second six pupillages (477) was actually a decrease of nearly 4 per cent on 2009/10. In 2010/11, 191 newly qualified barristers began work as employed barristers, an increase of 12 per cent on the previous year.

Patterns of entry show a slight decrease in the proportion of women progressing at most stages. In 2010/11, of 1,414 students recruited to the BPTC, 52 per cent were women and 48 per cent men. In the same year, of the 1,494 barristers called to the Bar, 49 per cent were women and 51 per cent men. This reversed the trend of the previous four years, when women were called in larger numbers. These figures benchmark the gender profile approaching the bottlenecks of pupillage and tenancy.

Of the pupils registered in 2010/11, 41 per cent were women and 54 per cent men, while 5 per cent did not disclose their gender. In the previous four years, women had the majority of pupillages twice. When men had the majority, however, it tended to be by a larger margin.^[2661] In 2010/11, 52 per cent of tenants and newly employed bar­risters were women and 48 per cent were men. This was a reversal of the previous year, when 56 per cent of new tenants were men.

Analysing entry for BME candidates is slightly more complicated. The BPTC is recognised as an entrance qualification for lawyers in some former British Commonwealth countries, and the course has a large intake from these and other non-EU countries. Therefore, while many overseas BME students are called to the Bar on completion of the BPTC, they do not necessarily seek pupillage or tenancy.

In 2010/11, 42 per cent of students recruited to the BPTC recorded their origin as BME, while 44 per cent were recorded as white and 14 per cent did not disclose their ethnicity. Around 20 per cent of UK domiciled students were recorded as BME.^[2662] In the same year, 1,494 barristers were called to the Bar. Of these, 34 per cent were British and 66 per cent were non-UK nationals. In the same cohort, 44 per cent described themselves as BME, 53 per cent as white, and 3 per cent did not disclose their ethnicity.^[2663] In 2010/11, 13 per cent of pupils registering and 12 per cent of tenants and new employed barristers described themselves as BME^[2664]

It is not possible to tell, from these data, what proportion of BME students recruited to the BPTC, and intending to practise at the Bar in England and Wales, actually gained pupillage or tenancy. Although BME and white students may enter the BPTC and receive call in roughly equal numbers, the much lower proportion in pupillage and tenancy could be explained by overseas BME students returning home. Therefore, there could be a number of explanations for underrepresentation of BME barristers, including inequality of opportunity.

Writing in the early 1990s, Glasser claimed that entry to the Bar was controlled by an ‘invisible’ process of selection.^[2665] This prioritised ‘ascribed’ characteristics that were irrelevant to performance. The expense of training and examinations in Latin and Greek controlled numbers effectively. This preserved the Bar as an elite haven, closed to people of lower social class and all but a few from ethnic minorities.^[2666] The Bar still has an image of privilege and selectivity based on class. The pattern may change when the Bar expands, but it is conceivable that it returns when there is relative contraction of available pupillages.

In 2001 the Bar’s own data showed that, especially the elite chambers, controlled entry by recruiting, predominantly, from Oxbridge and Russell Group universities.^[2667] This may be becoming more marked. In 2009/10, 23 per cent of Bar pupils attended Oxbridge, rising to 35 per cent in 2010/11. In 2009/10, 46 per cent of pupils attended a Russell Group university, rising to 64 per cent in 2009/10.^[2668] This recruitment pattern tends to garner privately educated recruits. While approximately 11 per cent of the population attend a fee-paying school, 40 per cent of Bar pupils did so.^[2669] This has longer-term consequences. In 2005, research by the Sutton Trust showed that judges, and solicitors and barristers in leading commercial practices were overwhelmingly privately educated and from Oxbridge and Russell Group universities.^[2670]

Statistics can be misleading. The 2010 Wood Review of pupillage claimed that the Bar ‘shows higher ethnic minority participation than the economically active population with higher qualifications’. It also suggested that the Bar shows higher female participation among new entrants than the professional employ­ment sector at large.^[2671] Nevertheless, patterns of recruitment to the Bar suggest that candidates from lower social classes, including many BME candidates, suffer disadvantages.

Potential Bar entrants from lower social classes are less likely to have attended an elite university. They rely on performance on the vocational course to demonstrate capability. The Bar’s data reveals, however, that 32 per cent of pupils had an offer of pupillage before commencing their BPTC.^[2672] Another problem is that candidates without substantial financial support may not be able to carry the level of debt acquired through education and training. Most pupils report debt, the largest group being in the £20,000-£29,000 bracket, with a small minority owing over £50,000.^[2673]

b. Regulation

The Courts and Legal Services Act 1990 took the remarkable step of making it unlaw­ful for a barrister or barrister’s clerk to discriminate against a woman in making offers of pupillage or the terms on which it was offered.^[2674] The Bar equality and diversity code, created in 1995, was updated in 2004 to take into account of legislation and awareness of equality issues. The code was not mandatory but reflected good practice guidance.

Since 2003, all vacancies for pupillage had to be advertised on a website specified by the Bar Council.^[2675] The notice must contain prescribed information about the chambers and details of the appointment process. It required chambers to have a written statement of policy on equality and diversity and an equality and diversity officer. The BSB’s 2009 chambers monitoring pilot study ‘had not been effective as well as revealing significant areas of non-compliance with the equality provisions in the Code’.^[2676] The Bar Standards Board therefore proposed strengthening the require­ments of the Bar Code in relation to equality and diversity.

In 2012, new rules were submitted to the LSB for approval as an addition to the Bar Code 1981, as amended. Under the amendment, each barrister was required to ensure that their chambers had a written statement or policy on equality and diversity and an equality and diversity officer.^[2677] Additionally, there had to be an implementation plan. From 2013, members with lead responsibility for selection of members of chambers, pupils, clerks or assessed mini-pupils had to have received recent and appropriate training in fair recruitment and selection processes. The intention was that all selection panel members were to have to receive this training by 1 July 2014.

The Code provided that chambers’ selection processes must use objective and fair criteria. Chambers were required to review regularly the number and percentages of staff, barristers, pupils and assessed mini-pupils from different groups. They were also required to consider the spread of applications for assessed mini-pupillage, pupillage, staff and membership of chambers. Finally, they had to review the allocation of unassigned work. Chambers’ reviews were required to include data broken down by race, disability and gender, together with reasons for any disparities in that data. The review and analysis was required to be followed by ‘appropriate remedial action’.^[2678]

c. Process

The Bar Council introduced a clearing scheme in the 1990s to try and ensure that entry processes were open and transparent. In 2001, the paper-based Pupillage Application Clearing House scheme (PACH) was replaced by the Online Pupillage Application System (OLPAS), upgraded to OLPAS Pupillage Portal (OLPAS/PP) in 2009. Under this system, students can apply for up to 12 pupillages. It is, however, a voluntary system and around half of chambers do not participate.

The operation of the pupillage clearing system remains controversial. Critics claim that other employers are not bound by similar recruitment restrictions. Supporters of the system argue that the level of non-participation creates concerns about the fairness of the system generally. Various reports reflect some ambivalence about the scheme. The Neuberger Working Party recommended that recruiters should be subject to a common recruitment timetable, but not necessarily within the clearing system.^[2679] The Woods Report on pupillage agreed that participation in the clearing system should not be imposed on chambers.^[2680]

E. Post-qualification Practice

Entry-level indicators for the Bar Professional Training Course reflect the demogra­phy of the population of England and Wales, but there are significant career progres­sion problems for many women and ethnic minority entrants thereafter.^[2681]

i. Transition into Qualified Practice

Transition from pupillage to self-employed practice can be difficult. Newly qualified barristers used to be able to rely on criminal work. Even in the 1990s, the Bar cohort study confirmed the trend noted in the Goldsmith Report of declining work levels. Attracting work was only a major problem for 16 per cent in London and for 8 per cent in the provinces. There were more tenants, less magistrates’ court work and more solicitors doing minor court appearances themselves. 20 per cent of respondents reported finding it difficult to manage financially. At nearly 30 per cent, Crime remains the largest single category of pupillage specialisation.^[2682] There is strong competition for work. In the commercial and chancery sections of the Bar, there are often limited advocacy opportunities for newly qualified barristers.

ii. Terms and Conditions

a. Income

As self-employed practitioners, barristers’ earning depends on the briefs they attract and the fees they can command. At the commercial bar, Queen’s Counsel can earn more than £1 million per annum. Barristers specialising in less serious criminal defence matters argue that they cannot earn a living wage. The income of many young barristers has been adversely affected by declining rates of legal aid and competition with solicitors for the small-scale advocacy work.^[2683]

By 2005, legal aid payment rates had fallen to such an extent that there was a threat of strike by criminal defence barristers in the summer. A review by Lord Carter of Coles was preceded by the government publishishing figures showing that in 2004-05 one barrister had been paid £1.18 million from legal aid.^[2684] The next 10 barristers received more than £600,000 each from the legal aid fund. Barristers at the lower end of the scale had not seen their rates rise since 1997.

Lord Carter’s detailed proposals aimed to ensure a fairer distribution of public money. They included reducing the numbers of small solicitors’ firms allowed to do criminal legal aid work, cutting the fees paid to the top end of the Criminal Bar, redistributing them to barristers doing one to ten-day cases in the Crown Courts. The Carter reforms did not address the underlying problem that criminal legal aid was almost continually reducing in real terms. They are unlikely to reverse the long-term pattern of decline.

In the run up to the 2014 strikes of criminal defence barristers, the chair of the Criminal Bar Association claimed that some experienced barristers earned as little as £13,000 per annum.^[2685] The Ministry of Justice countered that 1,200 barristers earned £100,000 each from legal aid in 2013. Barristers responded that VAT, chambers fees, pension provision, travel and other expenses would reduce that to £50,000 of taxable income. Some, it was claimed, earned as little as £13,000.

b. Support

One of the strengths of the chambers system is the collegial support it provides to independent practitioners. In Edmonds v Lawson, the Court of Appeal noted that it was beneficial to chambers to have talented and hardworking members, just as it was beneficial to the pupils to prove worthy of tenancy in a flourishing set. It may be that these benefits are not always experienced by some women and ethnic minorities.

The Bar cohort study recorded that 24 per cent of barristers thought racial discrimination, and 26 per cent felt that sexual discrimination, were major problems at the Bar.^[2686] A surprising 40 per cent of women entering the Bar suffered sexual harass­ment at work^[2687] and 70 per cent claimed to have encountered sexual discrimination in their careers.^[2688] Some support for the conclusion that the Bar is not a supportive envi­ronment for female and BME barristers may be suggested by the demographic data.

Despite the majority of new tenants being women, the overall composition of the Bar is changing very slowly. It is still the case that around 65 per cent of the self­employed Bar are men and 12 per cent are from a BME group.^[2689] These figures do, however, include the large preponderance of senior men who entered when the Bar was almost entirely white and male. Women are not proportionately represented as senior judges or QCs, perhaps because of earlier difficulties in establishing practices.

c. Opportunity

Low representation at higher levels of the Bar may be due to some groups having unsuccessful early careers. Flood’s study of barristers’ clerks in 1983 found that clerks’ criteria for allocating work showed ‘a strong reluctance to accept women and members of ethnic minorities as tenants in chambers’.^[2690] Senior barristers were said to avoid tackling the problem because clerks operated in their interests.

The Courts and Legal Services Act 1990 amended the Sex Discrimination Act 1975 to make it unlawful for a barrister or barrister’s clerk to discriminate against a woman in the arrangements made for determining to whom a tenancy should be offered, the terms on which it was offered or to discriminate against her in the benefits, facilities or services which are afforded or denied to her.^[2691]

By 1997, barristers’ clerks were still being accused of depriving black pupils of work.^[2692] The Bar Diversity Code 2004 recommended that chambers monitor the dis­tribution of briefs.^[2693] A 2007 survey of the self employed Bar suggested that female barristers do not progress as quickly as men in their careers.^[2694]

Gender and ethnicity appears to be a factor in the areas of specialisation practi­tioners gravitate towards. More recent BSB research showed that BME and female barristers are more likely to work in publicly funded work areas such as crime, where public funding supports 87 per cent of cases, and family, where it supports 58 per cent.^[2695] Twice as many women work in family as in any other practice area. BME barristers are most likely to work in civil law, where they make up 14 per cent of prac­titioners, and family, where they comprise 10 per cent.

Specialisation may be reflected in the proportions of different groups billing less than £80,000. Only 21 per cent of white men were in this group. This compares with 39 per cent of BME, 44 per cent of white women and 54 per cent of BME women billing less than £80,000. Women are more likely to be billing between £80,000 and £125,000 than men. Over 80 per cent of BME women bill less than £125,000, com­pared with 43 per cent of white men.^[2696]

There are, however, some positive data in recent research studies. The Bar Barometer reported very low attrition of BME barristers between five years’ and 15 year’s call. The high number of female barristers for pupillage has not translated into better gen­der diversity for barristers over 12 years’ call. The report stresses that this is strongly correlated with other factors such as accessibility of childcare.^[2697] Both women and BME barristers are well represented in junior judicial posts.

d. Autonomy

While self-employed status suggests high levels of personal autonomy, shortage of work puts pressure on young barristers to cultivate professional and lay clients.^[2698] Having attracted work, barristers may be less able than before to maintain an air of detachment in their professional relationships. In the Bar cohort study, a third of young barristers reported problems, for example, with poor instructions from solici­tors or in their dealings with clients or their relatives.

F. Regulation

The general provisions of the old Bar Code relating to equality and diversity applied equally to pupils and tenants.^[2699] Problems over allocation of work were recognised explicitly by inclusion of two new paragraphs in 2012. Paragraph 305.1 provided that

a barrister must not, in his professional practice, discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief or pregnancy and maternity.

Paragraph 408 of the old Bar Code addressed a number of problems related to the treatment of pupils and tenants. It required ‘the fair distribution of work amongst pupils and members of chambers’.^[2700] It provided that chambers have a written anti-harassment policy, dealing with promulgation and procedures for dealing with complaints.^[2701] It also required chambers to have a policy on parental and adoption leave and flexible working.^[2702] Each chambers was also required to appoint a Diversity Data Officer. This person was responsible for collection, processing and publication of diversity data on chambers’ website, in the first instance by 31 December 2012 and thereafter every three years.

V.