Why the Bar needs to change

He made headlines over the 'Da Vinci Code' case, but now, Mr Justice Smith is tackling the need for equal access to the Bar
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The Independent Online

It has been more than four years since Cherie Booth, QC, first warned that unless more help was given to poor and working-class students of the Bar, the judiciary of England and Wales would continue to be dominated by white males from the middle classes.

Stories about young graduates beginning their careers as barristers with £20,000- £30,000-worth of debt prompted the Prime Minister's wife to say that she would never have been able to practise law if she had had to suffer similar financial hardship. She is not alone in her concerns.

Mr Justice Smith, a High Court judge who has climbed to the top of the judicial ladder from working-class beginnings, shares Cherie Booth's views. The judge made the headlines earlier this year when he delivered judgment in the Da Vinci Code case, in which he exonerated the book's author, Dan Brown, over allegations that he had stolen the idea for his story from the work of other writers. He attracted even more public attention when an observant lawyer noticed that there was more to Smith's judgment than met the eye. Smith had actually set his own code in the paragraphs of the text of the judgment.

It is rare for a High Court judge to talk openly about topics as sensitive as education and funding. But the media interest in the Da Vinci Code case has given Mr Justice Smith the chance to highlight certain issues that he feels need to be addressed.

Like Cherie Booth, Smith does not think that he would have been able to start out on his career under the present system for funding higher education. "It is infinitely worse than 20 years ago, because someone who wants to be a barrister is facing debts of £50,000 to qualify. And it gets worse because fewer pupillages are being offered because of the current climate and the changes introduced that require all pupillages to be funded by sets of chambers."

Mr Justice Smith is also concerned about plans to stop students who pass the Bar Vocational Course from calling themselves barristers until they have completed their pupillage at a recognised chambers: "The proposal to defer call until after pupillage means that a person could complete the exam but not be able to become a barrister, despite the great expense, because a pupillage is not available.

"In addition, there are a significant number of overseas students who intend to practise in their own countries after qualifying in Britain. As they will not be called, that will not happen. And thus, links with overseas lawyers will be severed."

Peter Smith's origins were humble. He and his five siblings were brought up by their single mother on a council estate in Hornsea, East Yorkshire. Thanks to the determination of his mother, the young Smith went to Bridlington Grammar School before winning a place at Selwyn College, Cambridge.

His first contact with the legal profession ended in disappointment when he was told that he was too poor to be funded by one of the four Inns of Court. It was a rebuff that meant that he had to spend the first six years of his legal career as a law lecturer at Manchester University.

His modest background has made Peter Smith a fierce defender of state-funded higher education. "Access to funded university education is the great way in which working class or poor people can advance," he says. "That is how I obtained my education. I benefited and the state benefited. In net terms, over my working life, I have earned far more than I would have had the state not provided me with an education."

The judge also makes the point - as do many other opponents of university tuition fees - that the state received more in tax from his earnings than he received from it in grants.

He adds: "I have never felt that I have been treated on anything other than a meritocratic basis, apart from when I applied for a scholarship from one of the Inns and was told I was too poor and should get a salaried job. Northerners do get discriminated against, but you put up with it, don't you? There will always be discrimination as long as there are human beings."

Becoming a barrister is still the preserve of the middle classes and the rich, who can afford to shoulder average debts of £20,000-£50,000. Poorer law students, who can't afford such heavy financial burdens, end up as solicitors or simply find alternative careers. Solicitors do not have the same difficulties because they are able to charge for trainees' time at up to £150 an hour.

Mr Justice Smith describes the business of qualifying as a barrister as "a financial test of endurance". Many of those financial hurdles could be overcome if the Government introduced grant-assisted places for bright students who were being deterred from higher education because of the cost, he says. If help is not given to students, candidates for the judiciary will be limited to those who can afford to study for the Bar. The judge, who was the first from his county to be given a grant for the Bar exam, predicts that without a change, the Bar could die. "Everyone should have the same access to education according to their abilities," he says. If the problems are not addressed, the Bar may wither from the ground upwards. If people can't afford to come to the Bar, you are eliminating a pool of talent. It's completely wasteful."

In the last few years, the Bar has looked at several reforms whereby pooled funds would be used to help students from poorer backgrounds, but with limited success.

Now, under the stewardship of the new chairman of the Bar, Stephen Hockman, QC, the leaders of the Bar are about to unveil some radical plans to address this problem directly. They want judges to include lawyers from all kinds of geographical and social backgrounds, so that the Cherie Booths and Peter Smiths of the future are not excluded.

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