‘How to become a QC’ raised the question: why the lack of diversity in QC appointments? The figures are deeply troubling.
Only 48 of 237 applicants were women. For black and minority ethnic applicants the situation is worse, with only 32 applicants (of either sex), of whom only nine (28%) were successful. That is against an overall success rate of 45%.
The over-representation of white men in QC appointments needs to be tackled. The selection panel notes that applications from under-represented groups are ‘particularly welcome’. But there is a tension here. Traditionally, excellence in advocacy has been measured by performance in heavyweight and high-value litigation. The demands of this work limit its accessibility for those who cannot work the punishing and unpredictable hours required. And we know that women and BAME lawyers are more likely to do less remunerative work.
Around 70% of applicants for silk are aged 41 to 50. There are many more women solicitors than women barristers in this age bracket, not least because of the bar’s high attrition rate among women. Appointing more solicitors could have been an excellent way of improving the diversity of those taking silk. There needs to be an increased focus on how to access untapped talent from both branches of the profession.
The panel’s reference to the number of women applicants being ‘stubbornly low’ is unhelpful in tending to suggest that women are to blame for failing to apply. It is time for an overhaul of the system to make it fit for the 21st century. For example, there could be:
- a graduated application fee reflecting the fact that some applicants will have substantially lower incomes as a result of their practice areas and/or because they work fewer hours;
- encouragement in the guidance and explicit provision in the application form for those working part-time or flexibly; and
- inclusion of a competency relating to the encouragement of part-time and flexible working practices as an aspect of the ‘diversity’ competency for all applicants.
The failure to accommodate part-time and flexible advocates, and those earning less, is not only likely to be indirectly discriminatory on grounds of sex and race, but also deprives the system of talent.
This is important because the judiciary is overwhelmingly drawn from the pool of practising QCs. In the short- to medium-term, this seems unlikely to change. If we want a more representative judiciary in future we need a more diverse pool of QCs now.
Emma Dixon, Feminist Lawyers Society; barrister, Blackstone Chambers, London
