Lawton: Looking to inform the debate
The Bar Council needs to be clearer in the legal justificating for its controversial 10,000 Black Interns programme, a barrister has suggested.
An analysis [1] published by Greg Lawton, a member of Nine Chambers in Manchester, called on the Bar Council to clarify how the scheme was lawful under the Equality Act 2010.
Applicants must be over 18, Black or of Black heritage, currently studying at a UK university, or be a graduate within the last three years.
We reported earlier this month [2] on a discrimination claim brought by Sophie Corcoran on the basis that her application to join the programme was rejected because she was white.
The Bar Council said it would “vigorously contest the claim.”
It has previously argued that the programme was lawful under section 158 and section 159 of the 2010 Act.
Mr Lawton said section 158 enabled chambers offer people from underrepresented groups some training or access to the legal sector – for example, by shadowing a barrister for a period of time. But this could not be linked to employment.
Section 159 allowed them chambers to use “positive action” when recruiting or promoting someone. For example, a chambers could give a job to a candidate from an underrepresented group if all the candidates were equally qualified.
Mr Lawton wrote: “For the lawfulness of the scheme, it is not clear whether – and if so, how – reliance on both sections could be valid.
“It appears that, between s.158 and s.159 of the Equality Act 2010, only s.158 has the potential to provide a viable lawful basis. However, the ability to rely on s.158 would depend not least on demonstrating that s.159 is not engaged. This would appear to be a difficult task.”
Successful candidates are told they will begin their paid, six-week (minimum) internship over the summer, earning at least real living wage.
Mr Lawton said: “It is unclear how the placement of a candidate in the internship could be lawful on the basis of s.159.”
The barrister questioned: “For what reason is the payment stated on the website to be ‘at least Real Living Wage’? That the payment is stated to be a wage may indicate that it is a payment for work or services.
“The regular hours suggested by the Bar Council may provide a further indication of the same. If the actions taken by some under the programme are in connection with recruitment, s.159 would apply, and the actions may be unlawful.”
Having raised questions about section 159 and paid employment, Mr Lawston said: “Section 158 could not be relied upon if the scheme is connected with recruitment.”
He noted that some of the activities in the programme included observing or shadowing barristers, but “other activities appear to involve work”.
He framed the fundamental question as: “Does the internship involve employment, contract work, a contract of apprenticeship, or a service of finding employment? Or is the individual undertaking an internship simply shadowing and learning, and none of these things apply?”
This was “unclear” and Mr Lawton said the Bar Council had to clarify the point.
The Bar Council declined to comment in light of Ms Corcoran’s proceedings.
Mr Lawton has written research papers before, on whistleblowing, motor claims, judicial editing of transcripts of ex tempore judgments, and assisted suicide. Last year he gave evidence to the House of Lords on the end-of-life bill.
Mr Lawton first published his analysis in March, following comments last October [3] by Restore Britain MP Rupert Lowe, who described the scheme as “anti-white racism”. He updated it last week.
Given the commentary around the scheme, Mr Lawton said he thought twice about publishing his analysis.
In his paper he wrote: “The purpose of this paper is not to criticise the objectives of initiatives intended to address inequality or widen access to opportunities.
“However, where organisations, including professional chambers or firms, are invited to participate in schemes that may engage statutory provisions of the Equality Act 2010, it is both reasonable and prudent to consider the legal basis upon which those schemes operate.”
Mr Lawton told Legal Futures that he wanted his paper to inform the debate around this issue.
“Should a ruling ultimately determine that the scheme is not operated lawfully by someone and in some respect, then either the programme would need to be redesigned to come within the legal framework, or, should society decide that the legal framework should be altered, it is open to society to change it.”