The Bar Council has called on the Bar Standards Board (BSB) to review the rules on fair allocation of work for barristers.
The rules cover both fair allocation of work within chambers and ensuring that discriminatory requests from solicitors “for a barrister of a particular sex or race for a particular piece of work” are rejected.
Lawyers erupted with anger last month after Rehana Popal, an Asian female barrister at 10 King’s Bench Walk, revealed that she had been asked to return her brief by a solicitor because the client wanted a “white male barrister”.
Responding to a consultation on the BSB’s strategic programme for 2019-22, the Bar Council argued that, since the diversity profile of entrants to the profession was “broadly representative”, regulatory attention on diversity should focus on career progression and ensuring existing rules were fit for purpose.
“In that vein, we urge the BSB to consider reviewing the effectiveness of the rules on the fair allocation of work.
“Our experience is that these rules are not having the desired effect to a sufficient degree and a reconsideration of the approach may be warranted.”
The Bar Council said more work also needed to be done to address “high levels of bullying, discrimination or harassment” among barristers.
“The Bar Council has been undertaking work to address these issues through our Wellbeing at the Bar programme as well as undertaking specific projects to tackle harassment and bullying.
“This momentum should be used to create an effective dialogue with the profession, to determine what (if any) further role the regulator can and/or should play in addressing the issues proportionately and effectively.”
The Bar Council agreed with the BSB that its first ‘risk theme’ – working cultures and the professional environment inhibiting an independent, strong and diverse profession – was a “key challenge” for the future.
“The retention and progression of female and BAME barristers has been a longstanding issue where there has been insufficient progress.”
However, the Bar Council said the finding from its own Pupillage Gateway survey earlier this year cited in the BSB programme, that BPTC graduates from BAME backgrounds were half as likely to obtain pupillage as white graduates, masked “a wealth of important detail”.
“The Bar Council’s own research suggests that some BAME groups do as well as or even better than their white counterparts, that some do significantly worse and that the picture is more complex still when the interaction of ethnicity and gender is considered. We recognise that the Bar Council’s research only accounts for approximately 50% of pupillages.
“Therefore, in terms of focussing regulatory attention on diversity at the point of access to the Bar, more nuanced conclusions need to be drawn before it can be determined what action, if any, should be taken and by whom.”
On working culture, the Bar Council said some research findings, including its own Working Lives surveys, were “troubling and important”, but added: “It is questioned whether the finding that average hours worked by full-time practising barristers is significant in itself: most barristers are self-employed and similar patterns may exist in other self-employed professions.
“It is very difficult to change working cultures through regulation and any reforms take time to bed in.”
On the BSB’s second risk theme – innovation and disruption in the legal services market creating threats and opportunities – the Bar Council said this could be linked to wellbeing and working culture as well.
“Specifically, we urge the BSB to bear in mind the potential risks to barristers’ welfare from court closures and associated developments such as flexible operating hours, which could lead to increased working hours for practitioners.
“These developments are also likely to have an impact on those with caring commitments.”