Diversity: Cutting your losses
28 May 2013 | By Becky Waller-Davies
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27 November 2013
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13 February 2014
With legal aid cuts hitting minority-friendly areas of the bar, is it time to give up your legal dreams?
The potential effects of the cuts to legal aid, brought in on 1 April, have been well documented. What has not been publicised is the disproportionately negative effect the cuts could have on diversity at the bar.
The areas of the bar most under threat from legal aid cuts are those that often attract candidates from under-represented backgrounds.
“Many female and BME [black and minority ethnic] barristers work in family and criminal law, where the majority of cases are publicly-funded,” says Maura McGowan QC, chairman of the Bar Council.
The lack of information about the chancery or commercial bar is one reason for this. The strict criteria for mini-pupillages are another, as some write off their chances before they have even started.
Emmanouela Mylonaki, director of postgraduate studies at London South Bank University, says family, immigration and criminal law are known to be less lucrative than their commercial counterparts.
“These are not necessarily the most lucrative areas to practise in, hence connections play a small role, so it is easier for under-represented groups to practise therein,” she says. “I would agree that it is a field where minorities thrive.”
Although these areas were not as lucrative as chancery or commercial work, until now they provided a relatively stable form of income for many, both from typical and atypical backgrounds.
No5 Chambers family barrister Fayyaz Afzal says the cuts’ impact has not yet been felt, but this will change. “There are cases that already have the benefit of funding and that are working through the system. The true impact will be felt six to 12 months down the line when the current lot go.”
He believes the cuts will do greater harm than good to the public. “I know it’s asking the taxpayer to bear a greater burden but isn’t that what a fair society is about?” he asks. “Everyone pays in and at a time of distress those in need can access help.”
“It will not save as much as the Government predicts because litigants in person are going to clog up the court system. Things are going to be delayed and judges will have to spend more time on cases as they will have to manage them more. It is going to restrict access to justice for everyone and resources will have to be ploughed in to combat that.”
Afzal agrees the cuts will disproportionately affect those from BME backgrounds. “There is more chance for ethnic minority backgrounds and pupils from a different socioeconomic background in the areas of crime, family and immigration,” he says. “And those are the areas which are most affected by the legal aid changes.”
McGowan adds: “The removal of legal aid in many types of cases, coupled with the prospect of savage cuts to fees, will have a disproportionate effect on female and BME barristers. This could have long-term consequences for diversity at the bar and, ultimately, the judiciary. It concerns me to think that the hard work the bar has undertaken to increase diversity within the profession, is seriously under threat and that much of the good that has been done will be undone.”
The picture for those keen to enter the family, immigration and criminal bar does not look good, but then the career prospects of would-be barristers have never looked too rosy.
Around one quarter of Bar Professional Training Course (BPTC) graduates gain pupillage with a chambers. Add to that the graduates from previous BPTC cohorts who did not gain pupillage first time around and you begin to get an idea of the bottleneck at the lower end of the profession.
The current fear is that as the amount of work reduces, so will the number of pupillages.
“The worry is that when these cuts do bite and people realise their true severity, pupillage numbers will reduce,” Afzal confirms. “The barristers’ profession is different to that of a solicitor. Our pupils do not earn us any money, so when barristers’ earnings come down they will be less inclined to sanction pupillages. They may reduce numbers.”
Charter Chambers has decided not to fund pupillages from 2014. “We’ve decided it would actually be irresponsible to offer pupillages,” says director of chambers Ian Payn. “So after lengthy discussion and a lot of regret, we’re not going to.”
For those further up the ladder, the outlook is not so bleak but it is still a tough time to be gaining experience in the profession.
Once barristers have a few years’ experience they are viable candidates for in-house roles or other alternatives to the self-employed route. But getting experience is a challenge and young barristers will be competing with experienced practitioners if work dries up or law firms keep advocacy work in-house to keep their fee-earners busy.
So what should a barrister-to-be do? Mylonaki believes most prospective barristers will carry on regardless. “I don’t think a prospective barrister looks at cuts to legal aid and decides to desist from plans for a career in the bar,” she says. “Anyone dreaming of being a barrister has their sights set on this profession the day they decide to study law. This never dies, especially for financial reasons.”
Afzal takes a more pragmatic approach. “The bar is trying its best to warn people of their chances,” he says. “There’s still a lack of awareness. Students need to be very mindful of how difficult it is - the statistics do not look good.”
He admits, however, that he himself would never have been dissuaded by statistics or bad prospects. “Because I wanted it so much I would have carried on,” he says.