Elite sections of the bar are financially exclusive - that’s why the higher courts appoint too few lawyers who went to state school.
The social, gender and racial makeup at the top of the judiciary budges little year on year. While there is improved diversity at tribunal and county court levels, there is no ‘trickle-up’ effect. The Judicial Appointments Commission’s diversity data, published today shows that.
The gulf between circuit judges appointed who were state-educated and the figure for the high court is more than 20%. That’s 68% of circuit judge appointments and 47% for the high court.
What proportion of the general population are privately educated? That would be 5%.
The stereotype of the High Court, Court of Appeal and Supreme Court containing a massive over-representation of Oxford and Cambridge graduates still holds true.
But the bench in none of these courts manages to do as well as Oxbridge on diversity. If they reflected Cambridge colleges, 62% of these elite judges would be state educated, more than half would be women and the vast majority would be solicitors.
We could blame class prejudice - a parlour games the British are keen on. But handwringing over sounding or seeming too posh and wearing funny costumes, thereby apparently putting off easily-cowed state school kids is a misdiagnosis.
This is about money, not class.
The financial gamble required to succeed in the elite sections of the bar, from which the vast majority of our most senior judges are drawn, is simply too high. It starts with a £30,000 bet that you might secure pupillage, and continues with the need to run a five-figure overdraft as you get established.
For most, the bet won’t pay off. If you don’t come from or have money, you likely don’t make the bet – ex-state school kids are on the whole less well off, not more stupid. They can do the maths on this one.
We often discuss alternative routes to the bench – academia, law firms – and these have the potential to grow. But the raw economics of the bar will continue to matter most because its best sets are undoubtedly a very, very good preparation for the higher levels of the judiciary.
If you have the wherewithal to weather the lean years.
There is a challenge in this for the solicitors profession too. Whereas barristers continue to do ever more complex and high-level advocacy and advice as their practice develops, in equivalent elite law firms, promotion commonly brings a move away from that continuing development – senior associates do the actual law, with partners in a great many cases taking on ever more business development and management responsibilities.
I question whether that tendency produces solicitors who are as ‘bench-ready’.
I can see why the debate on social mobility and diversity gets side-tracked by discussions on class and class prejudice.
In certain circles of the law there is an absolute assumption that if you are in the same room and went to certain universities, then you of course went to a fee-paying school and you send your children to one. Presumably, they think the Grange Hill theme tune would be playing if someone from a comprehensive had just walked in.
I didn’t, and my children don’t. Sometimes I can be bothered to tell them, and sometimes I can’t. My clever, eloquent eldest daughter is the same.
It’s mildly irritating, but to be fair to these people, it’s an assumption that, as the figures show, they are all too commonly safe in making.
I don’t, though, worry most about our senior judiciary and the legal profession’s glittering prizes being socially exclusive. In reality, the ‘cattle-grid’ by the entrance gate is financial exclusivity – in the main holding pen for the higher courts, you had to pay to play.
If the journey to the bench were all about merit, then the makeup of the bench would be at least as good as a forward-looking Oxford or Cambridge college. Instead, it is substantially worse.