Demography, discrimination and diversity: a new dawn for the British legal profession?

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Acknowledgements

I would like to thank Sharon Collins, Harry Dematagoda, Paul Dougan, and Frances Evans and Lindsay Nicolson for research help, and Aileen McHarg and the anonymous referees for their comments on earlier drafts.

Notes

[1] E.g. women constituted 1.7% of the annual admissions of English and Welsh solicitors in the 1920s, 2.3% in the 1930s, 2.9% in the 1940s, and 4.2% in the 1950s, rising to 11.6% in 1972 (Abel, 1988, pp. 173 and 415). Rates of increase were similar for barristers and Scottish solicitors (Abel, 1988, pp. 80 and 328–330; Paterson et al., 1999, p. 262; McGlynn, 1998, p. 146), though much slower for advocates (Paterson, 1988, pp. 93–94).

[2] (Excluding pupils and squatters): personal communication, General Council of the Bar Records Office.

[3] Personal communication, Faculty of Advocates Records Office.

[4] I.e. 49.6% in 2000–01: personal communication, General Council of the Bar Records Office; cf. McGlynn (1998, p. 146) for earlier years.

[5] Only 27 out of 95 entrants (28.4%) over the last four years: personal communication, Faculty of Advocates Records Office.

[6] In England and Wales, consistently over 55% since 1995–96 (McGlynn, 1998, p. 12) and 63% in 2000–01 (The Law Society, 2001, p. 4).

[7] But see Shiner (1997, p. 114), regarding the Bar Vocational Course.

[8] See also Duff et al. (2000, p. 44), regarding newly qualified solicitors, and NcNabb and Wass (2005), who in their survey report that on average women solicitors in private practice earn 56% as much as men—a difference of £26,093.

[9] Some 8% in England and Wales (personal communication, General Council of the Bar Records Office); 9.7% of practising advocates in Scotland as at April 2002 (personal communication, Faculty of Advocates).

[10] E.g. in 2000, 24.5% of female English and Welsh solicitors worked outside private practice compared to 17% of men (Cole, 2001, p. 19).

[11] E.g. by a factor of 8 and 36, respectively, amongst English and Welsh solicitors in private practice in 2001 (The Law Society, 2001, pp. 5–6).

[12] Although their study was based mostly in commercial law firms (who arguably set the tone for the rest of the profession), their findings are supported by other research in the UK (Holland & Spencer, 1992) and elsewhere (e.g. Epstein et al., 1995; Hagan & Kaye, 1995; Thornton, 1996; Schultz & Shaw, 2003). See also Sommerlad (1994), McGlynn (1998, p. 12, esp. Chs 4 and 6), Sanderson and Sommerlad (2000), Sommerlad (2002) and McNabb and Wass (2005).

[13] There is even evidence that firms discriminate in favour of male interviewees by taking into account that they mature later than female interviewees (Rolfe & Anderson, 2003, p. 326; but cf. Rhode, 1988, pp. 1187–1190, noting how the evaluation of female competence is affected by gender stereotypes).

[14] Note, however, women's double bind in that if they do portray masculinist professional qualities, they are likely to be regarded as unnaturally unfeminine (Menkel-Meadow, 1985, p. 54; Sommerlad, 2002, p. 225).

[15] Though according to Duff et al. (2000, pp. 59–60) and Sanderson and Sommerlad (2000, p. 161) not all aspects of work outside private practice may be as favourable.

[16] See Holland and Spencer (1992, p. 11) on the greater number of both single and childless female as compared to male barristers. Cf. also the employer practice of recommending abortion to pregnant solicitors (McGlynn, 1998, p. 100; Sommerlad & Sanderson, 1998, p. 233).

[17] The Scottish Law Society does not monitor ethnicity, whereas the statistical base of advocates (440, out of which seven are of ethnic minority origin: personal communication, Faculty of Advocates Records Office) is too small to warrant conclusions.

[18] This expression is used to denote only black and Asian, and not white, ethnic minorities. On the terminological difficulties associated with race and ethnicity, see e.g. Vignaendra et al. (2000, pp. 133–135, 146–148) and Mason (2000, Ch. 2).

[19] Some 89.3% of the total (personal communication, General Council of the Bar Records Office).

[20] In 2001 they constituted 3.1% of all QCs (personal communication, General Council of the Bar) compared with 0.4% in 1992 (Harvie, 1992, p. 748).

[21] In 2000 they constituted 3.45% of all partners (Cole, 2000, p. 24), compared with seven out of a straw poll of 472 in 1992 (Harvie, 1992).

[22] In addition, when these factors where not held constant, ethnic minorities were found to be less likely to be retained on qualification (Duff et al., 2000, p. 23).

[23] E.g. the number of ethnic minority barristers with sufficient years practice for appointment to silk (see McGlynn, 1998, p. 149) is not out of line with the number of awards.

[24] Although the definition of class is controversial (see e.g. Scase, 1992) in the current context, the class indicators used in the studies cited below provide a sufficiently accurate picture (cf. Shiner & Newburn, 1995, p. 17; Vignaendra, 2001, pp. 8–9).

[25] The Inns used to record fathers' occupation but this was to ensure class exclusivity rather than inclusivity.

[26] Scottish law students are entitled to grants for the academic, but not vocational, stage of legal education, though they will normally have to pay a small ‘graduate endowment’ after graduation.

[27] Shiner and Newburn (1995, Ch. 2) also report that only 14% and 12% of those surveyed had working class fathers and mothers, respectively.

[28] E.g. in Shiner's study, Oxbridge law graduates had a 89% chance of a training contract offer, old university graduates 69%, and those from new universities 49% (Shiner, 1997, p. 53, and see p. 122 regarding pupillages).

[29] See especially the strong link between class and starting salaries (Shiner, 1995, p. 43ff), which is not shaken by subsequent pay increases (Duff et al., 2000).

[30] E.g. 63% of Oxbridge law graduates obtained training contracts in City firms, as opposed to 24% from other old universities, and 6% from new universities (Shiner, 1995, p. 18; cf. also Halpern, 1994, pp. 53–54 on firms' recruiting priorities).

[31] But see note 32 and Duff et al. (2000, p. 23) regarding the effect of institution attended on the chances of post-traineeship employment.

[32] From 0.24 to 0.30 and 0.73 to 0.80 in the case of pre- and post-LPC offers, respectively (Shiner, 1997, p. 6).

[33] From 0.30 (for those from a non-selective school) to 0.41, but no statistically significant differences regarding post-LPC offers (Shiner, 1997, p. 6).

[34] E.g. graduating from Oxbridge rather than a new university more than doubled the probability of receiving a pre-LPC training contract offer and doubled the chances of a City job (Shiner, 1997, pp. 62 and 77), whereas an Oxbridge 2.2 degree gave candidates a slightly higher chance of obtaining a pupillage than a new university first (Sedley, 2000, p. 7). See also Rolfe and Anderson (2003, pp. 320–323).

[35] E.g. this increased the chances of a pupillage from 0.81 to 0.90 (Shiner, 1997, p. 124). The effect on training contract offers was similar, albeit more complex (pp. 60–61).

[36] E.g. according to Shiner (2000, p. 109), all things being equal, an independent school and old university educated whites with a graduate or professionally qualified parent have a 70% chance of obtaining a training contract prior to the LPC, compared with 11% for non-selective school and new university educated ethnic minorities whose parents lack a degree or professional qualification.

[37] Thus, while the disadvantages of class and ethnicity might operate cumulatively as we have seen, anecdotal evidence suggests that ethnic minority (or at least African-Caribbean) women are treated better than their male counterparts, possibly because they simultaneously satisfy two equal opportunity targets (cf. Harvie, 1992, p. 748).

[38] Cf. Shiner and Newburn (1995, pp. 32–34) on expectations of gender, race and class discrimination, Morton & Harvie, 1990b and Vignaendra, 2001, p. 14, on how ethnic minority and working applicants lower their career sights.

[39] Page references are to the online version at: http://www.lawsociety.org.uk//documents/downloads/ED_DiversityHandbook.pdf.

[40] Thus, whilst both include race, sex, religion or belief, sexual orientation, and disability, the Law Society also includes nationality and ethnic origin and highlights that gender includes marital status, but has not yet followed the Bar Council in prohibiting age discrimination [but see Law Society (2004, p. 8) where it warns that age discrimination may amount to gender discrimination].

[41] Cf. also the recognition of the need to accommodate a lawyer's different characteristics stemming from their social class and education (The Law Society, 2004, p. 8).

[42] E.g. one even finds a reference to adherence to equal opportunities requirements being a prerequisite for BARMARK accreditations not in the Code's introduction or main body but hidden away in Annex G which contains the Council's policy on maternity and paternity leave.

[43] Paragraph 1.60 of the Code is entitled “Grievance, Procedure, Monitoring and Review” but omits to deal with monitoring!

[44] Noting that employed staff in chambers are only required to be given the statutory minimum (Bar Council, 2004, para. 1.137), cynics might put this down to the fact that chambers' rent rather than salaries is involved.

[45] Another less worrying objection is that the desire to accommodate requests from clients for lawyers of the same background might be exploited by those motivated by sexism, racism or class snobbery (cf. Edwards, 1995, p. 210), but this can be prevented by carefully drafted professional rules (cf. The Law Society, 2004, pp. 21 and 30).

[46] Indeed, some continue to say that they can see no gender differences at all (see Flanagan, 1991, Ch. 10; Larrabee, 1993 passim).

[47] The distinction between ‘hard/strong’ and ‘soft/weak’ affirmative action is notoriously difficult to make (see e.g. Rhode, 1988, pp. 1196–1197) but in simple terms one can characterise the former as involving some form of prima facie preferential treatment.

[48] Cf. also the Bar Council (2004, ‘Foreword’), which claims that the Bar does in fact take this lead.