The murder of George Floyd re-opened discussions about diversity, equality and inclusivity at home and abroad. At the Bar, those discussions highlighted the poor outcomes for Black barristers at all stages in the profession. This article focuses on the progression of Black barristers to silk and explores some of the statistical information on taking silk and the picture it paints.

In January 2021, the Bar Standards Board (BSB) published its latest diversity data. The report’s conclusions are mixed: the percentage of barristers from all Black and Minority Ethnic groups at the Bar increased by 0.5% from December 2018 to 14.1% across the whole Bar, but at silk level, there remains a marked disparity. Only 8.8% of all QCs in England and Wales identify as being Black or from a Minority Ethnic group, with all the rest being white or preferring not to say.

Obtaining silk

Queen’s Counsel Appointments’ (QCA’s) data on silk applications and appointments is a useful starting point. These statistics highlight the extent as well as systemic nature of the problems.

The first thing to note is that the QCA continues to use the acronym ‘BAME’ (Black, Asian and Minority Ethnic) to share its data. Deconstructing BAME, the homogenous and deeply unhelpful shorthand, reveals that Black barristers are the least represented of all of the groups contained in the BAME category and are statistically less likely than any other ethnic group to take silk. Excluding all those silks who did not provide any information regarding their ethnicity, only 1.3% of QCs are from Black/Black British backgrounds. White QCs make up the greatest proportion of silks at 90.7%.

From the figures supplied to me by the QCA, in the nine years between 2012 and 2020, the following statistics emerge:

  • 2,173 barristers applied for silk and 954 of them were successful.
  • Of the 2,173 who applied, only 281 applicants fell into the Black Asian and Minority Ethnic group.
  • Of the 281 Black Asian and Minority Ethnic applicants, 118 were appointed. So far, so good – until one drills down further:
    • Of the 118 who were recommended, only 1.2% or 11 barristers identified as Black.
    • In four of the nine years for which I had received data, no Black barristers were recommended for appointment.

In the 2019 competition, six Black women were recommended for appointment. It felt like the green shoots of change had finally sprouted but, sadly, the euphoria of that moment slowly ebbs away when you look at the very latest figures.

In the 2020 competition, 116 QC appointments were made, of which 14 barristers identify as Black, Asian and Minority Ethnic. The monolithic term made it impossible to discern how many of these 14 barristers were Black as opposed to other ethnic groups. When I asked the QCA for the breakdown, the answer was that only one of the 14 identifies as Black.

In the 2019 competition, I was one of those six Black women recommended for silk and yet the QCA data states that only five of the ‘BAME’ barristers recommended that year identified as Black. I therefore acknowledge that the ‘Other’ subcategory is likely to include barristers who identify as Mixed/Multiple Ethnic Groups, and therefore the statistics may be slightly better if those figures were further broken down. Nevertheless, these latest statistics remain bleak and provide evidence, if evidence were required, that for progress to be made, the picture needs to be accurate and clear – there is no place for the term ‘BAME’ in the collection and sharing of data.

Reasons for this disparity

The next glaring factor that emerged is that Black applicants are more likely to be filtered out prior to interview than members of any other group. The percentage of applicants who progressed from the ‘paper-sift’ to interview over the 2012 to 2020 period were: Black/African/Caribbean 33.4%; Asian/Asian British 62.1%; white 71.6% (see chart below).

 

The disparity between groups is stark. I question whether the ‘paper-sift’ process itself is part of the problem. Two Panel members review each application including the list of important cases, narrative description of practice and self-assessment alongside the judicial, practitioner and client assessments. The Panel then assess applicants in full and, crucially, only applicants with reasonable prospects of being recommended, as evidenced by their assessors, are invited for interview. In other words, the first obstacle is that a silk application lives or dies on reputation. If the judges, practitioners and solicitors from an applicant’s selected cases do not say that that applicant is ready for silk, the chances of an invitation to interview appears to be vanishingly thin.

Most Black barristers have lived experienced of discrimination in the profession. Most of the callers to report judicial bullying and micro aggression to the Bar Council are Black female barristers. Some Black practitioners have publicly, and with great courage, provided incontrovertible evidence that a particular experience was racist. In 2020, a Black female barrister was mistaken for a defendant on three occasions in one day while at court. At least one of the people who mistook her for the defendant is a member of the legal profession. The perception still exists within the profession that skin colour precludes a Black person from being a barrister, let alone a QC. It will have an impact on who succeeds in the process.

There is also a large number of Black barristers who don’t apply. Of the 281 Black, Asian and Minority Ethnic barristers who applied for silk between 2012 and 2020, 37 were Black. By contrast, 157 Asian/Asian British barristers applied.

Black talent and the lack of advancement

In addition to the low numbers who apply and the low numbers who are interviewed, there are wider issues of opportunity and progression within the profession which discourage Black talent from applying.

The BSB’s race equality 2018 report identified self-doubt and confidence issues as a potential barrier for Black barristers. Part of the problem is the lack of role models at silk level, and a sense that taking silk just is not as open to them. On the current statistics, they are right.

However, the BSB also identified racial prejudice, discrimination and inequality of opportunity as barriers to progression.

First of all, work is unfairly allocated and who gets instructed is not based solely on merit. More than half of Black barristers surveyed by the Black Barristers' Network (BBN) thought that race had negatively affected the allocation of work or were uncertain whether it had been. Clerks must consistently implement systems to ensure Black barristers (particularly women), get a fair share of the junior briefs. Without cases of substance, an applicant is unable to fulfil the criteria for showcasing their excellence in the silk competition. A culture change is required to ensure opportunity for capable Black talent.

A second problem is retention at the Bar as depicted through income. The BSB’s data on income by gender and ethnicity (based on 2018 income figures) concluded there are more Black barristers than white barristers in the lowest two income bands (£0-30,000k and £30,001-60,000k*). Further analysis highlights that Black barristers have the lowest mean income band of all barristers across the Bar at 2.72. This is well below the mean income band for the Bar as a whole: 3.74.

It is not a coincidence that there is a prevalence of Black barristers in publicly funded, and therefore underpaid, work. The BBN’s survey found that well over half of its respondents practised in crime (33%) or family (34%). It could also be something more sinister – a misconception that Black barristers are not worth the money. In the BBN’s survey, the majority (54%) did not feel their fees were negatively affected by race, however, 16% felt the opposite was true and 30% were uncertain as to whether race affected their fees.

The overall picture becomes even bleaker when gender is included with race. Last year, a Black female barrister disclosed that a solicitor’s firm either refused to instruct her or would only agree to instruct her if her fees were lowered simply because she was a Black woman.

The BSB’s income report concludes unequivocally that female barristers are likely to earn less than male barristers and Black female barristers are the lowest earning group across the whole Bar. This report chimes with the BSB’s 2016 Women at the Bar research in which some respondents noted male barristers were allocated more work; a decrease in work when attempting to work flexibly; or on return from maternity leave.

Applying for silk is itself a costly business. Further, an applicant is often advised to prepare for a potential drop in income in the first year or two as they adjust and transition as a new silk. A barrister who has a disproportionately low income is unlikely to take the risk of a further hit by making the application.

Dominance of practice areas

Another consideration is the correlation between civil, chancery and commercial sets and silk appointments. In the 2018 competition, of the 108 appointments made, 71 were civil QCs (see Who Gets silk? 2019, David Wurtzel, Counsel February 2020). Only 1-2% of commercial, chancery and PI barristers identify as Black (see Diversity at the Bar: where do we go from here, Jo Sidhu QC and Elaine Banton, Counsel September 2020).

Additionally, specific sets of Chambers tend to do much better in the QC application process. Of the silks appointed in 2019, 24% came from seven London-based Chambers. The eight sets with the most QCs – all predominantly commercial, London-based sets – made up 16.7% of all silk appointments in 2020, and 13.8% of appointments this year (Legal Cheek’s The Chambers Most List 2021). Those sets have no/one or two Black members.

Although six leading commercial sets** have launched a mentoring scheme for underrepresented groups at the commercial Bar, the speed of change will certainly preclude any timely or material difference at silk level.

We cannot afford to keep looking away

The Bar’s culture, tradition and shape were informed by the circumstances and experiences of its founding fathers – white men from privileged backgrounds. That inevitably created a system which has, at its very core, the notion that whiteness is the norm and as a result it perpetuates structural and systemic unfairness obstacles to those who enter the profession from a variety of other backgrounds and heritage.

David Lammy MP, in his review of the treatment of, and outcomes for, Black individuals in the criminal justice system suggested that an ‘explain or reform’ approach should be adopted by that system: ‘If there are apparent disparities by ethnic group, then the emphasis should be on institutions in the system to provide an evidence-based explanation for them. If such an explanation cannot be provided, action should be taken to close the disparity’ (Lammy Review p 14).

There is no justifiable explanation, other than race, for the obstacles to progress that exists for Black barristers. Race and systemic discrimination is the sole identifiable cause for the disparity.

The Bar cannot afford to keep looking away. While it may increasingly say it strives to represent equality and inclusivity, it currently does not look like the population it serves, and at the current rate, is unlikely ever to look like that society.

Active steps will be required to ensure a levelling out of the playing field. A leap towards an enduring and sustainable solution is something I hope to achieve, together with my colleagues, on the Bar Council’s Race Working Group. Watch this space. 

* Black female barristers are the lowest earning group across the whole Bar: The BSB’s income report concludes unequivocally that female barristers are likely to earn less than male barristers and Black female barristers are the lowest earning group across the whole Bar (barristers who are employed, self-employed, QCs, barristers both inside and outside London, and barristers with similar seniority of call) Income was separated into 4 bands. Band 1 is £0-30,000k; Band 2 is £30,001-60,000; Band 3 is £60,001-90,000; Band 4 is £90,001-150,000.

** ‘Commercial sets join forces to launch mentoring scheme’, Legal Futures 29 July 2020: Blackstone, Brick Court, Essex Court, Fountain Court, One Essex Court and Three Verulam Buildings.