OPINION Diversity and inclusion: beyond the tick boxes

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Time to rethink the Bar’s approach to diversity and inclusion? To ensure that difference makes a difference, we must get to the root of the problem and commit to structural change – Zeenat Islam shares her thoughts

I was shortlisted in the Chambers UK Bar Awards 2019 for the category ‘Outstanding Contribution to Diversity & Inclusion: Future Leader’. I chose not to attend the event when I learnt of the ticket prices – in excess of £400 per person – half my rent. Although my chambers offered to pay for my ticket, I felt that I could not in good conscience attend.

My concern was about the inaccessibility of the event for so many, including myself, my loved ones and junior colleagues. It seemed inherently contradictory to have awards that excluded the people they were intended to celebrate.

I began to consider whether diversity and inclusion awards act as a metaphorical ‘pat on the back’ for things that should be a given as a matter of fairness; whether they create an illusion of advancement and progress that we perpetuate within our own bubbles; and whether actually the truth is that we are so far behind.

This led me to think much more deeply about the ‘equality, diversity and inclusion’ narrative in a way that I have not before in my earlier years of practice.

It turned out that I received the Highly Commended Award on the night, which I found out via Twitter.

This article is not really about the cost of a ticket to an awards ceremony, but rather what that is symptomatic of; in my view, a lack of meaningful engagement with equality, diversity and inclusion. I write this article from my own perspective and experience. People will undoubtedly relate to this topic in different ways. I do not have all of the answers but hope that sharing some of my experiences may provoke thought and dialogue.

Consider the root of the problem, not the result

Equality, diversity and inclusion initiatives at the Bar are largely designed to remedy the issue that the profession is not fully representative. The emphasis is on the need to improve the numbers of people from diverse backgrounds accessing the profession. But why are certain groups underrepresented to begin with? And why are we not asking this question first?

Spaces of power and influence, like the Bar, are not representative or equally accessible by underrepresented groups. The issue is structural. Racism, poverty, gender inequality and otherising are just some examples of systemic barriers that explain the status quo.

Without reference to, and understanding of, the root of the problem, equality, diversity and inclusion initiatives can be superficial strategies that are reduced to compliance, monitoring, data collection and tick boxes on forms – ironically often missing boxes for many groups of people. The narrative does not focus sufficiently on why certain groups are underrepresented and why these groups should be represented.

Representation matters in spaces of power and influence. From those spaces, decisions are made that affect all of our lives, each and every day. The legal profession must be representative of all, if the justice system is to command the confidence of the people (it says) it serves. It is not just about getting these people through the door because there are duties now to do so. It has to be rooted in an understanding that there is an absolute need for this in any democratic, socially just society.

Angela Davis, the political activist and author, said: ‘I have a hard time accepting diversity as a synonym for justice. Diversity is a corporate strategy. It’s a strategy designed to ensure that the institution functions in the same way that it functioned before, except that you now have some black faces and brown faces. It’s a difference that doesn’t make a difference.’

In order to make a difference that does make a difference, we must look deeper than the ‘tick box’ approach and commit to working towards structural rather than symptomatic change. This starts by acceptance of the problem followed by a willingness to engage with the issues, learn and act from a place of genuine concern rather than compliance.

It also means not having misplaced conversations about equality premised upon the idea that we are all the same. We are not. There is no level playing field. We have all had different starting points in life and are born into starkly different circumstances. The world relates to us in different ways. To deliver the fairest outcomes, the conversation should not be about equality, but rather equity. Seeing everyone as ‘the same’ runs the risk of ‘colourblindness’ when talking about race. The same applies when we don’t see people for who they are in relation to religion, gender and other defining characteristics. In treating people ‘equally’, we erase context, culture, histories and personal circumstances.

Widening access: what chambers can do

In terms of improving diversity of membership, chambers should actively be looking to remedy gaps in their representation and putting systems and policies in place that facilitate this. There are a number of easily removable barriers, such as offering financial assistance for unpaid work experience and mini pupillages, providing alternative work experience opportunities for those who cannot afford to take time off for a mini pupillage, or travel to London to undertake one. There should be more events, support and mentoring to target those from underrepresented groups. Pupillage funding needs to take into account that many simply cannot afford to live on many of the awards that are offered, and therefore do not apply. It is not enough simply to say that we are committed to equality and diversity procedures.

There also needs to be an emphasis on outreach work with younger people and much earlier on. But one thing that must be guarded against is selling the pipe dream that anyone can get to the Bar. This is simply not true and, in my view, irresponsible. Whilst such projects can be essential in raising aspirations, providing mentoring and skills training, they cannot overcome the structural barriers. The simple fact is that the circumstances into which people were born will overwhelmingly dictate their life chances. Such projects, in my view, ought to be used as a way to equip young people from underrepresented groups with guidance and support on how to access and navigate exclusionary spaces – on their own terms.

Diverse membership is not the same as equal and inclusive

Many chambers and law firms pride themselves on the percentage of their membership that comes from underrepresented groups, such as women, BAME, those with disabilities etc. Recruiting ‘different’ people, however, does not make an institution equal and inclusive. A key consideration is whether our working cultures in chambers, courtrooms etc are truly inclusive, in allowing everyone to show up as their full selves.

I have often questioned whether I needed to be a ‘bit less me’ in order to access the Bar, and survive and succeed when I got there. Instances that I was not quite sure how to deal with, or did not actually understand at the time, include:

  • being mistaken for everyone but counsel: the transcriber, staff, or defendant’s family;
  • being told by someone that their only exposure to a Muslim, before me, was from the South Park sitcom;
  • being called the other brown girl’s name or a totally made up name; and
  • my input totally ignored until championed by those that are older, male and white.

I have lost count of the number of times I have had to say I do not drink alcohol and explain why, and awkward conversations where I have to justify why I am declining attendance at alcohol-centred events. Often these conversations are well-intentioned but people just do not get it. When I was a pupil and in my early years of tenancy, I went to these events, because I wanted to feel involved, wanted the same access to networking opportunities, and did not want to be the ‘odd one out’. I did not feel comfortable going, but I went. Over the years, I have grown in confidence to just say no – but it can be incredibly isolating and alienating.

Working towards an open minded and inclusive culture

I welcome the recent report, published in January 2020 by The Law Society’s Junior Lawyers Division: Creating a Healthy Alcohol Culture in the Legal Profession which recognises some of these important issues. The report states: ‘It is detrimental to the career progression of lawyers, development of teams and relationships with clients, if those who opt not to drink are excluded from events (or leave early) that would otherwise allow them to build business relationships and strengthen bonds with their teams.’

I encourage chambers to consider this report and its guidance on how to create a more inclusive culture. Suggestions include: picking activities and venues that cater for everyone; considering the timing of events; and introducing an alcohol policy.

Creating a more inclusive culture must also start with open mindedness, and being willing to talk about topics that we may find uncomfortable – race, religion, gender, politics – but that are necessary. It is not the responsibility of people to explain or defend their positions or choices; and there is an onus on each of us to educate ourselves to better understand the people we interact with each and every day.

Being the poster girl for social mobility

I have often felt like a poster girl for social mobility. Bangladeshi, Muslim, female, from a low income household, first generation to go to university, state-school educated, graduating top of my year in law from the University of Warwick, an LLM from the London School of Economics, pupillage secured pre-BPTC, Outstanding in BPTC, plus various scholarships, awards and the like. Is this proof that social mobility works?

Statistics suggest otherwise. For example, the Bar Standards Board’s BPTC Key Statistics 2019 states: ‘Of UK/EU domiciled BPTC graduates with an upper-second class degree and Very Competent overall BPTC grade, 44 per cent of them from white backgrounds had commenced pupillage, compared to around 23 per cent of the BAME cohort with the same degree class.’

The data collection, forms and monitoring definitely tell us something. Why is it that you are nearly twice as likely to get pupillage if you are white?

Dangers of a pervasive narrative

Sometimes imposter syndrome creeps in and I wonder if I am a token. There have been a number of jokes over the years about how many of the ‘diversity’ boxes I tick. Then I have a stern talking to myself. The point is, this is what this narrative can do – make those of us who ‘make it’ feel like we are not here because we deserve it.

Cosmetic changes do not go far enough. Until we actively engage with this subject with sincerity, the Bar and other spaces of power and influence will remain as exclusive, impenetrable and unrepresentative as they always have been.

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Zeenat Islam

Zeenat Islam is a barrister at 25 Bedford Row. She is an Associate Tutor at the University of Warwick and teaches Practical Advocacy to LLB students. She is the founder of REDEFINED: Learning for Lawyers which is an alternative learning platform for aspiring lawyers from underrepresented groups.