In Black History Month the Bar Standards Board is very pleased to publish the following think piece by one of our Board members, Leslie Thomas QC. Leslie is also a member of BSB’s Race Equality Task Force.
As the Regulator of the Bar, we have a duty to promote diversity and inclusion. As Leslie says, legal services must reflect the society they serve if people are to have confidence in them. But in many respects, the Bar remains a distorted mirror of society. Barristers from minority backgrounds are under-represented among QCs. They earn, on average, less than their white counterparts even when you control for seniority, geography and specialism. They have a harder struggle obtaining pupillage.
I completely agree with Leslie that the answer to this continuing discrimination is action. What action? Well, chambers could start by pressing ahead with the four actions the Bar Standards Board mandated in its Anti-Racist Statement this time last year: audit practices to eliminate barriers to racial equality; take positive action where barristers from minority backgrounds are under-represented; provide anti-racist training for all barristers and staff; and publish an anti-racist statement for members of chambers and the public.
There is good practice out there in all these respects. We now need to identify, promote and generalise that good practice. That is why in our strategy consultation, published earlier this month/last month, we have prioritised working with the profession to define what constitutes good practice in chambers’ and employers’ oversight of diversity.
Working together, the profession and the regulator need to respond to Leslie’s call for action, not talk.
Mark Neale, Director General, Bar Standards Board
"The heartbeat of racism itself has always been denial. Whereas the heartbeat of anti-racism is confession." Ibram X. Kendi
Black History Month in the UK is a time where the achievements and plights of Black people receive national attention. It is a time for individual and collective introspection. It goes without saying, though I think it necessary to reiterate, that honest talk about racial equality and the celebration of Black communities should not be confined to one month in the year. In fact, words alone are in no way sufficient; action is a must. A sustained and sincere commitment to critical self-reflection, respecting and championing others and our differences, having difficult conversations and calling out racism and discrimination is necessary all year round. On this front, I regret to have to admit that our legal profession is miserably failing.
As a legal profession – individual practitioners, chambers, firms, the judiciary, regulators, pupils, trainees and students – we must refrain from only talking about race and, instead, start doing something about it. We must elevate ourselves and the profession beyond mere tokenistic, non-committal chatter to authentic, intent and meaningful action. We should demand this from all of us: to do a lot more to improve a profession and justice system that is woefully failing Black people on countless fronts.
Racial disparities and the unfair treatment of Black people by the justice system are well documented. Many say that this should come as no surprise, for it is a historic and incontrovertible truth that the justice system serves as a central institution for furthering racism and oppression. Unfortunately, however, we as the legal profession often omit ourselves from such criticism pointed at the justice system. I suspect that this could be rooted in "group-think", in which we subconsciously (or consciously) regard ourselves as being higher mortals, untainted by "irrational and uncivilised" prejudices. But such hope could not be further from the truth and only serves to enable racism.
Failure by the profession to properly tackle the multiplicity of issues that it falls foul of adds truth and weight to the view, held by many, that the profession is "White, stale and male", antiquated, exclusionary, isolating, and a place where prejudices not only exist but, in my view, thrive.
Although by no means the end goal, one of the profession's main challenges is attracting a more diverse candidate pool. This includes students, trainees, pupils and junior practitioners but especially pertains to senior levels such as QCs, managing and equity partners and the senior judiciary, where there are embarrassingly few Black people.[i] Not only does this erode public trust and confidence, demotivate prospective lawyers and impact retention, it arguably, and more importantly, allows for a pervasive and homogenised culture to flourish. As a result, distorted views of "right" and "wrong" can go unchecked, which in turn threatens the very fabric of justice, where those tasked with fighting for the underdogs of society, often Black people, actually help to uphold harmful systems and practices. Abimbola Johnson, a barrister at 25 Bedford Row, captured the issue neatly:
"The majority of lawyers are white and middle class. That whiteness and class background informs the base culture of what we do. Many in the profession mostly come across members of the Black community in courtrooms. It is a fallacy to suppose that negative views and assumptions will not find their way into our work unless we consciously make sure they do not. As practitioners, we must make sure we are not applying only white middle-class expectations of behaviour on citizens that are anything but that."[ii]
A related issue is the use of the word "BAME". Its use is incredibly unhelpful. As well as homogenising all ethnic minorities and their very different identities and experiences, this acronym helps paint a skewed picture of representation and masks underlying disparities. Human rights charity JUSTICE recognised this in its recent Judicial Diversity update report[iii], as did the Judicial Diversity and Inclusion Strategy 2020-2025, which underlined that disaggregating ethnicities would enable "more focussed action targeted at areas where diversity progress has not improved or not been sustained".[iv] The most recent judicial diversity statistics support this contention: while the proportion of judges who identified as BAME has gradually increased from 7% in 2014 to 10% this year, this was mainly due to the proportion of Asian judges having risen by two percentage points, to 5%, since 2014, while meanwhile, Black judges have increased very little, from 0.7% to 1%, in the past ten years.[v]
But this is only one piece of a much larger problem. Once we attract more diverse representation throughout, we must ensure that these people are and feel respected and that the profession does not become a breeding ground for hostility and prejudice. Worryingly, The Law Society[vi], Bar Standards Board (BSB)[vii] and Bar Council[viii] have all released reports in the last year which make for depressing reading regarding the experiences of Black practitioners, particularly for those at the intersection of race as well as gender, sexuality and/or disability. For example, the Bar Council's Barristers’ Working Lives report found:
"There is a compounding effect of sex and ethnicity, with female barristers from non-white backgrounds being four times as likely to experience bullying, harassment, and discrimination as white male barristers (58% and 15%, respectively). Nearly two-thirds of female barristers from Black and Mixed backgrounds reported bullying, harassment, and discrimination (63% and 64% respectively)."[ix] (my emphasis added)
This turns my attention to the profession’s regulators, which serve as a fundamental cornerstone and prerequisite to the effective oversight of racial equality and respect, responsible for setting standards of conduct and best practice and holding to account chambers, firms and practitioners. We must hold our regulators' feet to the fire in their duty to hold to account chambers and firms on their diversity commitments, as well as demand "fearless" investigation into complaints of discrimination, bullying and harassment. Central to this, regulators must practise what they preach. Regulators must act as a source of inspiration and motivation, exemplifying best practices and how things should be done. It is disappointing, for example, that currently, there is only one person of colour on the Board of the BSB, although the BSB’s current recruitment for lay board members provides an opportunity for this to change. This problem is in no way unique to the BSB. It is difficult to expect the Bar to improve if its regulator is doing no better, nor can we expect the BSB to meaningfully hold the Bar to account if it comprises predominantly middle-class White people. However, as a member of the BSB Race Equality Taskforce responsible for the publication of the anti-racist statement, and with upcoming work dedicated to shifting the culture of the Bar, including roundtables dedicated to understanding the experiences of racialised minorities in the profession, I hope that the work of the BSB can act as a catalyst for change across the profession.
Integral to this question of holding to account those who act in unacceptable ways is the need to instil within us all the confidence to be able to call out discrimination and bullying when we see it and to make use of all of the necessary channels for raising complaints, including via chambers, the BSB or the Bar Council's "Spot" app (the latter two often viewed sceptically by the Bar).[x]
Tackling the above problems is no easy task, but conceding their inevitability is neither an option nor acceptable, especially for a profession that claims to be "fearless" in its commitment to justice and equality before the law, a cornerstone of the rule of law and any democratic society.
So, what can and must the profession do. I have spoken at length on what this should entail, but, in short, the below steps are necessary, go beyond some of what the BSB has requested of Chambers thus far and have been adopted from anti-racist scholars, NGOs as well as best practices already underway at the Bar.
What being an anti-racist lawyer requires
- Acknowledging, accepting and educating yourself on racism and particularly its history and enduring existence in the UK.
- Engaging in meaningful introspection, rooting out your prejudices and racism and recognising your own inherent privileges.
- Viewing racism not in its antiquated form – i.e. instances where bad people do and say bad things – but realise that racism exists in institutions, systems and structures.
- Not confusing being racist with being in a constant "state of being". Someone can easily engage in, perpetuate or facilitate racism episodically. Put differently, being a racist should not be viewed as a verb, but instead a noun.
- Realising that other forms of prejudice and oppression – sexism, homophobia, transphobia – are inextricably linked, each helping to articulate and perpetuate the other.
- Accepting that there is no room for neutrality. There is a stark binary: anti-racist or racist. As Ibram X. Kendi puts it, being a "not racist" is a racist in denial, whereas an anti-racist is a person who is willing to admit one's own wrongs and take an active approach to identifying and bettering oneself.
- Approaching the law, justice system and your practice critically. Law perpetuates racism; it is not, nor has it ever been or intended to be neutral in its application, impact and effect. You must challenge narratives, how stories are told, which facts are considered by decision-makers and tribunals.
- Engaging confidently in difficult conversations about race, both with colleagues and, where appropriate, clients.
- Being fearless in raising issues of discrimination and calling out harassment both in your personal working life and in your cases.
- Getting to a place where you do not victimise the oppressed but instead turn your cynicism and critical eye to the oppressor.
What chambers must do in relation to racial equality
What chambers must do in relation to racial equality
1. Establish a clear commitment to anti-racism, inclusivity and respect among your workforce
(i) Mark out clear expectations that your organisation is anti-racist and promotes a culture of respect and willingness to listen, self-reflect, and evolve. This commitment should be publicised in an anti-racist statement and, most importantly, reflected in behaviour, culture, operations and interactions at all levels of your organisation.
(ii) Create a safe and encouraging environment for everyone to develop the knowledge and confidence to talk about and combat racial discrimination.
(iii) Prioritise developing anti-discrimination training, with opportunity for discussion and input from people from diverse backgrounds. This training should at least cover:
• Stereotyping, even where unintentional or "innocent"
• Acceptable/unacceptable terminology
• Individual, institutional and systemic/structural racism
• Theories including critical race theory and intersectionality
• Having difficult conversations about race with colleagues and, where appropriate, clients
(iv) Build support by creating networks, safe spaces and dedicated time for barristers and staff to talk freely, share experiences and views and learn from each other.
(v) Be candid about instances where your organisation could and should have behaved better and be open to sharing examples of how your organisation has dealt with incidents of discrimination, which will demonstrate commitment and hopefully inspire confidence for others to call out racism.
(vi) Encourage all individuals to promote inclusion and stress that an individual does not have to be from the minority group in question to act as an anti-racist, champion and ally.
(vii) Normalise a culture of awareness and recognition of diversity and race, including marking dates from the "diversity calendar", as well as initiatives like The Employment Lawyers' Association's "21 Day Racial Equity Habit-Building Challenge".
2. Commit to sustained action through visible leadership and oversight mechanisms
(i) Ensure that leadership (Head of Chambers, Senior Clerk, CEO and management committees) understand that supporting and championing racial equality is their responsibility.
(ii) Create a long-term racial equality action plan and consider appointing a dedicated Equality & Diversity Officer and committee to drive and monitor progress and hold leaders to account.
(iii) Work alongside others chambers' leadership to promote best practice, knowledge-sharing and, where appropriate, uniformity.
3. Scrutinise all operational policies, processes and procedures
(i) Conduct an audit of all policies, processes and procedures with a view to actively rooting out potentially discriminatory impacts and effects as well as ensuring such policies, processes and procedures are not only mindful of difference but value and encourage it.
(ii) Embed a commitment to racial equality into all of your major decision-making processes (for example, ensure one person on each decision-making committee has an equality remit and that committees are appropriately representative).
(iii) Reward individuals for promoting equality and diversity, and consider setting related staff performance objectives (for example, in relation to how staff approach marketing opportunities, providing support for applications for Silk etc)
(iv) Ensure that complaint systems are robust and effective, understood by barristers and staff, and that people are supported when making a complaint.
(v) Define and codify exactly when bullying and harassment count as serious misconduct, with, perhaps, the use of case studies and testimonies.
4. Develop effective data monitoring systems to inform targeted and remedial action
(i) Collect and audit data on a regular basis, regarding your organisation's:
• workforce profile
• recruitment and retention of barristers and staff
• fee income and allocation of work
• marketing opportunities
• membership of key decision-making committees
(ii) All data collated should disaggregate ethnic minority background, and this data should be used to investigate and actively address anomalies:
• consider setting targets to work towards
• use (and normalise the use of) positive action where supported and sophisticated enough to differentiate between and address the experiences of different groups
(iii) Consider publishing your figures and action plan to demonstrate commitment and transparency.
5. Ensure an inclusive approach to outreach and the recruitment of barristers and staff
(i) Critically appraise the breadth and accessibility of your channels for recruiting talent.
(ii) Consider targeted advertising and outreach work, working in partnership with charities and foundations, offering open days, mini-pupillages and mentoring programmes.
(iii) Engage with access initiatives such as Bridging the Bar, #10000 Black Interns, Urban Lawyers, Black Solicitor Network and the Kalisher Trust.
(iv) Make your application processes as transparent and accessible as possible, for example:
• consider using the Pupillage Gateway
• clarify what any job entails (so that applicants have the opportunity to fully consider whether there is any chance it may conflict with their religion or beliefs)
• inform applicants of your selection criteria
• inform candidates who is on your pupillage interviewing panel
(v) Re-examine your selection process and consider measures to combat bias, for example:
• ensuring everyone involved in recruitment has been properly trained
• using blind recruiting at first-stage shortlisting
• adopting questions and software to enable contextual recruitment
• removing unnecessary selection criteria that may prevent / deter some groups
• giving greater consideration to factors other than academic achievement
• ensuring guidelines for purely merits-based skills and competency-based selection are followed (and personal questions at interview are avoided)
• having visibly diverse panels for recruitment where possible
• appointing independent assessors of your processes
• always allow space for an applicant to detail mitigating circumstances
• work alongside initiatives names above to improve your selection process
• consider establishing a racial taskforce focused on improving your selection process
6. Support inclusive retention and career progression of barristers and staff
(i) Champion talent by offering barristers and staff mentoring or sponsoring, and consider the use of reverse- or mutual-mentoring.
(ii) Encourage all members and staff to participate in marketing, training, development, secondment and promotion opportunities.
(iii) Ensure that methods of delivering such opportunities do not have the effect of disadvantaging individuals because of their background (for example time of the day or date; use of language or physical contact; dietary requirements and/or service of alcohol).
[i] See: BSB – Diversity at the Bar 2020, p.16; Courts and Tribunals Judiciary (2013). Magistrates in post 2009; and Diversity of the judiciary: Legal professions, new appointments and current post-holders 2020 statistics
[ix] Ibid. p.3