Simply the Best?

The law is a profession that is based on individual talent. Achievement and attainment are a key part of preparation for entry into the Bar and law firms.

It is common to hear the phrase, “we don’t think about diversity and inclusion, we just hire the best.’

 But is the search for the ‘best’ talent as simple as that in relation to diversity?

 When I was asked to write this article, I hesitated for a moment as, whilst I do lots of work in the diversity space, it is generally in relation to law firms and corporate legal departments not the bar. However, last year I started to mentor two incredibly talented black women seeking pupillage and it’s brought me into direct contact with the challenges faced by diverse groups in both entering the bar and progressing at the bar. Rather than focus on the statistics which can be found in multiple places. I thought I would focus on a seemingly innocent notion which can cause lack of action on the issue of greater inclusion and diversity: the merit argument.

Always Hiring the Best?

The law is a profession that is based on individual talent. Achievement and attainment are a key part of preparation for both entry into the Bar and law firms.

It’s common to hear the phrase, “we don’t think about diversity and inclusion, we just hire the best.’

But is the search for the ‘best’ talent as simple as that in relation to diversity?

Law firms have had greater focus on diversity and inclusion over the past ten years mainly because it’s been a focus that their clients have made it clear they need to have. This has manifested itself in different ways with clients using rewards and penalties.

The Bar has not been as focused on this area generally as colleagues in law firms have. The reasons for this are manyfold. Some of it is structural and related to the way that barristers are instructed. Some of it is institutional and a result of biases, unconscious or not. Given many barristers are reliant for instruction from solicitors, who, while they are getting their own house in order, are still way off where they need to be in regard to diversity and inclusion, is it any wonder therefore if that isn’t a significant factor when instructing the Bar?

Similarly, until recently, many corporate clients would not think to ask barristers about this. That is slowly beginning to change particularly with some larger clients, like banks who are able to engage in direct instruction and also have the financial clout for a request for diversity to be meaningful. One general counsel at a large bank told me that a few years ago she would be told by clerks in chambers that she wouldn’t want to instruct a certain female barrister because she was pregnant. The client made it quite clear this was not acceptable, and she remarks that now her sets will not even attempt to behave in such a way That’s certainly progress, but is it only horses for certain courses? And are there deeper set structural issues we need to address to ensure that clients have a range of diverse counsel to choose from?

The Merit Argument

 What’s often then introduced at this point is the merit argument. Or it’s not me, it’s you! If diverse groups were able to be at the Bar, then they would be. The seemingly neutral ‘Merit Argument’ is actually a complete Trojan Horse, which hides a range of discriminatory viewpoints.

 The way that barristers work as independent contractors allied with certain chambers has necessarily made collective action around topics like diversity less easy to get action on. This individualistic structure also raises an issue which is prevalent in professional services firm of all sorts, particularly ones that rely on some sort of ‘star culture’. It’s the idea that natural talent or merit will always out and therefore special measures for diverse groups should not be necessary. But if we unpick this seemingly unbiased argument there are actually a lot of prejudices contained within it.

Firstly, it firmly places the blame for lack of representation at the feet of the underrepresented groups. If you didn’t make it well, you just weren’t good enough- sorry (not sorry!)

Secondly the dominant group is thereby, via this logic, much more talented and deserving of their positions than other groups. This now puts this seemingly innocent argument about merit on a slippery slope. Indeed, at the end of that slope lie the swampy mires of full-on eugenicist thinking, that particular groups are just cleverer than others.

To debunk this, we just have to look at the arguments put forward by contextual recruitment which invites prospective employers to not just consider A level or degree results but consider the wider context in which these were reached. If you are the first member of your family to go to a university, you do not have the same context and familiarity with the process as the children of graduates. If you are studying in a school where the level of A level passes is low, then by achieving any decent A level results you have significantly outperformed. If you have to work or care for family members while studying that is another contextual challenge. What all of these skills tap into is grit and resilience, now both seen as significant skills for career success -and more so than exam grades. Someone who can demonstrate the passion, dedication and perseverance to pursue a career at the Bar, even if it isn’t the easy or logical option but brings the passion and dedication to try is surely an asset any profession would want?

That’s why across the legal profession we have to interrogate what we mean by the ‘best ‘and recognise that this can be a very loaded term.

Given the Bar is still predominantly white, male and from advantaged social groups, what is needed to make any sort of change happen is the recognition that the best person doesn’t have to look, act or sound like you, the incumbent. And then you need the active desire to make that change by becoming an ally – in both words and actions.

A good starting point in becoming an ally is to interrogate this argument about merit and your own sense of what good looks like, who will be the best? Is it always going to be someone who looks, acts and sounds just like you? If you start to unpick the neutrality of the merit argument, maybe it will introduce the possibility that someone who took a vastly different and, probably, much more challenging route, even if they did not achieve the same level of attainment you had, on paper anyhow, might be, in reality, be just as deserving.

 By Dr Catherine McGregor, Editor-in Chief of the Minority Corporate Counsel Association’s Diversity and The Bar Magazine

Catherine McGregor is a consultant, creator of thought leadership and writer.

Editor-in Chief of the Minority Corporate Counsel Association’s Diversity and The Bar Magazine. She has a long-standing focus on inclusion and diversity and how best to achieve this in the legal profession. Her website can be found at www.catherinemcgregor.co.uk

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