Racial equality & diversity in the legal profession

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.