YLAL social mobility report: ‘One step forward, two steps back’
Alice Cullingworth, a trainee solicitor and Young Legal Aid Lawyers (YLAL) committee member, and Gayan Samarasinghe and Shiraz Jamma, who are YLAL members, summarise the findings of the group’s report on social mobility and diversity in the legal profession and describe the launch event’s panel debate.
YLAL launched its latest report on social mobility and diversity in the legal aid sector in England and Wales, One step forward, two steps back
, in October 2013.1Available at: www.younglegalaidlawyers.org/sites/default/files/One%20step%20forward%20two%20steps%20back.pdf.
Following a keynote speech by Baroness Hale,2The full text of Baroness Hale’s speech is available at: http://supremecourt.uk/docs/speech-131030.pdf.
journalist Raphael Rowe chaired a debate between five panellists: Lucy Scott-Moncrieff, director of Scott-Moncrieff & Associates Ltd and chairperson of the Law Society’s Equality and Diversity Committee; David Johnston, chief executive of the Social Mobility Foundation; Chris Topping, partner at Broudie Jackson Canter; Simao Paxi-Cato, YLAL committee member and barrister at Invictus Chambers; and James Wakefield, director of the Council of the Inns of Court.
YLALs’ report intended to gauge how social mobility was faring in the light of recent reforms. In particular, the report considers:
•the 2013 Legal Education and Training Review, which is prompting a programme of reforms to legal education and training by the Solicitors Regulation Authority (SRA) and the Bar Standards Board;
•the scrapping of the minimum salary for trainees by the SRA from August 2014; and
•the cuts to legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, which took effect in April 2013.
YLALs’ findings are based on responses in 2012 by around ten per cent of its membership, which comprises approximately 1,600–1,700 law students, paralegals, trainee solicitors, pupil barristers and qualified junior lawyers across England and Wales. Three central findings were reached:
•first, high levels of debt combined with low salaries make legal aid work unsustainable for those from a lower socio-economic background;
•second, unpaid work experience represents a barrier to social mobility; and
•third, work experience is a prerequisite to entry to the legal aid profession.
The causes of such barriers to social mobility, and what are the appropriate responses by the legal profession, were hotly debated by the speakers and audience. The debate pointed to two central barriers to diversity within the legal profession at large, ie:
•the reluctance of firms to alter radically their selection processes for new entrants to the profession; and
•legal aid cuts which will impact disproportionately on the more diverse legal aid sector.
Why diversity matters
The 2013 Milburn Report found that, until recently, law had been one of the leading professions with regard to advancing social mobility and diversity: State of the nation 2013: social mobility and child poverty in Great Britain
(Social Mobility and Child Poverty Commission, October 2013).3Available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/251213/State_of_the_Nation_2013.pdf.
The latest Law Society statistics show that, in 2012, 47 per cent of solicitors in England and Wales with practising certificates were women and 13 per cent were from black and minority ethnic (BME) groups: Diversity profile of the profession: a short synopsis
(May 2013).4Available at: www.lawsociety.org.uk/advice/articles/diversity-in-the-profession/.
The most recent Bar Council statistics show that, in 2011, 35 per cent of those practising at the Bar were women and that ten per cent were from BME backgrounds: Bar barometer: trends in the profile of the Bar
(November 2012).5Available at: www.barcouncil.org.uk/media/177918/bar_barometer_nov_2012.pdf.
This is clearly out of proportion with the general population, 14 per cent of whom were, in 2011, BME.
There is also no doubt that candidates from a public school background are more likely to succeed: the Milburn Report advises that ‘urgent action’ is needed in response to the fact that 30 per cent of solicitors in England and Wales and nearly 40 per cent of pupil barristers in 2011 attended fee-paying schools (page 243). Baroness Hale commented that this gap is reflected in the judiciary ‘with almost three-quarters of the senior judiciary – High Court and above – going to independent schools, three-quarters going to Oxbridge and another fifth going to Russell Group universities’ (page 3).
All the panellists at the event recognised the importance of diversity within the legal profession. Lucy Scott-Moncrieff argued that it has wide societal consequences:
It’s really important we have a profession and a judiciary that reflects the population so people feel their experiences are being shared by those listening to them, and advising them and judging them. It’s a crucial part of the credibility of the justice system.
However, it appears that diverse candidates are concentrated in the legal aid sector. The Milburn Report notes that while the publicly funded Bar usually recruits a more diverse intake, the commercial Bar remains ‘unrelentingly socially exclusive’ (page 243). David Johnston described some of the challenges that diverse candidates face in more highly remunerated areas, such as corporate law. He said that the profession:
… has an idea of what a member of the profession should look like. I don’t mean physically, but in terms of mannerisms, cultural understandings, and qualifications from which university. In big firms people get as far as the interview room and then they are deemed ‘not what our clients would expect’. Things like accent or dress-code matter – all sorts of things people admit to you privately but would never admit to publicly.
David Johnston warned that there was a danger that diverse candidates were being forced into legal aid because other areas of the profession were forcing them out: ‘It is still assumed that if you are female, from a BME group, or from a low income group, legal aid is where you should be looking’, amounting to the equation that ‘if you’re poor you should only be working with poor people’. One audience member questioned whether increasing numbers of women in legal aid was in fact a triumph for diversity, or symptomatic of legal aid coming to be seen as a second-class ‘caring profession’ relative to other areas of law.
The concentration of diverse candidates in legal aid means that female and BME groups are more likely to be less well remunerated. This fact is further illustrated by YLALs’ finding that trainees who are BME, women, working outside of London or who attended state schools would be the most severely affected by scrapping the minimum trainee salary. The concentration of diverse candidates in legal aid also means that they will suffer the most by cuts to legal aid. Chris Topping noted that given the impending legal aid cuts, the growth of barriers to diversity is a ‘ticking timebomb’.
Escalating costs and decreasing pay
YLALs’ report highlights a concern about the increasing cost of legal education. The majority of those surveyed for the report who studied the Bar Professional Training Course (BPTC) or Bar Vocational Course (BVC) paid over £9,000 in course fees, with 28 per cent paying between £9,000 and £12,000, and 35 per cent paying over £15,000. The cost of legal education leaves many graduates at the beginning of their legal careers with high levels of unsustainable debt while earning very low pay. The majority (56 per cent) of respondents who studied the Legal Practice Course (LPC) paid fees of between £9,000 and £12,000. The majority of respondents to YLALs’ survey (67 per cent) earned £25,000 pa or less. Following the SRA board’s decision in May 2012, the minimum salary, set at £18,590 pa in central London and £16,650 elsewhere, will no longer apply from August 2014. It is worrying that, at this time of escalating costs and decreasing pay, the trainee solicitors’ minimum salary will be scrapped.
On the issue of costs, Baroness Hale in her keynote speech said:
I hear stories every day of very able practitioners who are having to leave because they cannot make ends meet. Some of these are the very diverse and socially mobile young lawyers whom we want to attract into the profession. But the combination of a high-cost education and a low-paid career is going to be more and more of a deterrent (page 6).
James Wakefield agreed that the major problem facing legal professional courses is fees. High fees result in many ambitious candidates from lower socio-economic backgrounds choosing a more stable and financially rewarding career, for example, in the City as commercial lawyers.
The decreasing number of opportunities for paid employment and the increasing number of law graduates lead to the question: should a cap be placed on the maximum number of students that professional course providers can take on? Baroness Hale observed:
[W]e cannot deny people the educational opportunities which are the first rung on the ladder, because some of them undoubtedly will make it into the legal profession and some of those will make a great success of it. But it is very hard positively to encourage them to try (page 4).
James Wakefield stressed the importance of these courses in preparing students for their professional career, arguing that the focus should not be on placing a cap but on tackling the problem of costs.
To deal with the difficulties posed by the high costs of legal education, YLALs’ report recommends work-based learning as a replacement for vocational learning. This option was favoured by the majority of respondents who had undertaken the LPC (71 per cent). There are a few law schools incorporating vocational elements into their law courses; for example, London South Bank University encourages its students to undertake pro bono work at its Legal Advice Centre. All the panellists suggested that a new emphasis should be placed on other avenues available to qualification besides the traditional training contract and pupillage routes, such as the more flexible route offered by the Chartered Institute of Legal Executives.
What is the problem with unpaid internships?
A clear trend from the YLAL survey was the proliferation of unpaid work experience within the legal profession, and within legal aid, in particular. Given that 89 per cent of respondents had done some form of unpaid legal work experience, it was not surprising that there were mixed views from the audience as to whether or not all unpaid internships were ethical. YLALs’ report suggests that those who can afford to work unpaid gain a significant advantage in the job market: 80 per cent of respondents said that they felt that work experience (both paid and unpaid) had helped further their career in legal aid.
Some audience members suggested that unpaid internships are exploitative by nature. These comments from the audience reflected the concern in YLALs’ report that unpaid internships present a further barrier to diversity (para 58). Respondents to YLALs’ survey commented that they were unable to complete unpaid internships because they had an adult or child dependant, a lack of family contacts in London, where many internships were offered, or because of the small number of part-time work opportunities that were available to fund an unpaid placement. Even relatively short-term mini-pupillages can cause problems for many candidates. One respondent to the YLAL survey said:
The cost of completing mini-pupillages was a huge barrier: they are a prerequisite to pupillage but are limited by geography … [W]ith no family in London or friends able to host me for the three weeks, I had to draw on my overdraft to cover rent and transport (para 57).
Baroness Hale referred to the prevalence of ‘work experience and internships in today’s recruitment criteria’, arguing that ‘[d]iverse candidates find it much harder to get these, partly because they don’t have the contacts and partly because they can’t afford to work without pay for any length of time’ (page 4).
However, some members of the audience disagreed. One BPTC student, who was volunteering at the Howard League for Penal Reform, explained that her one day per week placement allowed her to gain experience in prison law while not losing out on work opportunities or academic commitments.
On being pressed by Raphael Rowe as to whether the panellists’ firms or chambers took on unpaid interns, Lucy Scott-Moncrieff commented that her firm allowed young people, or those wishing to enter the legal profession, shadowing opportunities, but where a volunteer was doing work for the firm that would generate an income, s/he would be paid. YLALs’ report draws a similar distinction between placements that are either short-term or require a limited commitment, typically carried out at a charity, and exploitative placements lasting several weeks or even months.
There is no easy solution to the problem of unpaid internships, particularly among charities or legal aid practices that are struggling in the face of more cuts. However, YLAL suggests that firm guidelines from the Law Society and Bar Counncil should be considered to ensure that unpaid placements do not become exploitative.
Cuts to legal aid are cuts to diversity
There was one concern that all participants in the event considered both pressing and serious: the effect of the cuts to legal aid on the diversity of the profession. The effects of the LASPO Act on removing many areas of law from scope have yet to be measured, and the current government’s new round of Transforming legal aid
(TLA) cuts are already underway.6See: https://consult.justice.gov.uk/digitalcommunications/transforming-legal-aid-next-steps.
Many legal aid firms will have their funding reduced, making legal aid an unsustainable business model in the near future. While the focus of campaigning against the TLA cuts is on the devastating effect they will have on access to justice for clients, the impact on diversity within the legal profession is also a huge concern. Given the concentration of diverse candidates in legal aid, the reduction in training contracts, pupillages and careers in legal aid firms could transform the face of the wider legal profession. Any gains made over the past 30 years in encouraging more BME, low-income and female candidates could be undone in a far shorter space of time.
The financial pressures of running a legal aid practice have already led to an increasing reliance on paralegals instead of qualified practitioners. This ‘paralegalisation’ of the legal aid profession means that graduates can find themselves becoming career paralegals, working on low wages for extended periods of time. Indeed, 61 per cent of respondents had worked or were working as paralegals. During the debate, there were sentiments of frustration voiced by audience members who, despite good academic backgrounds and extensive work experience, faced immense difficulties in obtaining pupillages and training contracts.
Sitting as a member of the audience, Simon Hughes MP asked the panel what they would do to redouble their efforts to promote diversity. The panel was unanimous in agreeing on the importance of continued and renewed efforts to fight the TLA cuts to legal aid. The panellists suggested that it will take innovative ideas and solutions, particularly from young and new entrants, to help overcome the effects of the cuts. Despite all the barriers discussed over the course of the debate, Chris Topping insisted that those who want to work in legal aid should still ‘go for it’.
What can be done?
There is no doubt that everybody loses out when the legal profession becomes less diverse. Lucy Scott-Moncrieff observed that the legal aid profession could miss the best talent. David Johnston concurred, adding that we are currently accessing a very narrow pool of candidates, and stressed the economic consequences of this, citing research that indicates that breaking the link between background and achievement could increase the UK’s gross domestic product by four per cent.
YLALs’ report makes six recommendations which would go some way to rectifying the specific problems facing social mobility within the legal aid profession:
•first, the SRA should reinstate the minimum salary for trainee solicitors;
•second, funds should be allocated to facilitate work experience placements within the legal aid sector;
•third, robust guidance should be issued by the Law Society and Bar Council on the acceptable and lawful use of long-term unpaid work placements;
•fourth, professional course fees should be regulated;
•fifth, professional bodies should consider replacing the current route to qualification with a form of work-based learning; and
•sixth, recruitment guidance dealing with unpaid work experience should be promoted actively by the legal profession.
The debate will continue far beyond YLALs’ launch event.
■ If you would like to help the campaign against the TLA cuts, visit the Justice Alliance’s website: www.savelegalaid.co.uk/justicealliance
. YLAL welcomes volunteers to help distribute its report. If you would like to help or to contribute to any of YLALs’ campaigns, join us at our next monthly meeting. Visit www.younglegalaidlawyers.org
for more information.