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Why admission to ‘the club’ is not enough: a UN mandate to give practical effect to the human right to development prompts a personal reflection on diversity and inclusivity at the Bar
By Klentiana Mahmutaj
I was recently appointed by the United Nations Human Rights Council (UNHRC) as one of five independent experts on the Expert Mechanism on the Right to Development, a right which the UN General Assembly proclaimed in 1986 as an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.
I will carry out that mandate, which lasts three years, alongside my practice at the Bar. My fellow experts and I will advise the UNHRC on how to give practical effect to the right to development at a global level. As part of our work we will address, among other things, the responsibility of States to act both individually and collectively in global and regional partnerships; and in formulating development policies and programmes that affect persons within and without their jurisdiction.
As the purpose of my UN mandate is to help states move from mere rhetoric towards making the right to development a reality, it has made me reflect on my own personal journey of development and on issues of inclusivity and diversity at the Bar.
I was born and grew up in Tirana, the capital of Albania. I was the first member of my family to go to university. After a year of studying law at Tirana University, in the Roman law tradition, in 1998 I received a full scholarship to study law at De Montfort University in Leicester. That was a time of exceptional tumult in Albania. In 1997, the tanks were in the streets. It seemed everyone had a Kalashnikov. The country only narrowly escaped a civil war and stability was slow to arrive. Only months before I left, an MP was murdered on the steps of Parliament.
I left Albania on the afternoon of 23 September 1998, having spent the morning arguing with the Consul at the British Embassy in Tirana about why he should grant me my student visa. It took some argument but, reassured that I had no intention of seeking asylum in the UK, he relented. My passport was stamped and I rushed to the airport to catch my plane, two hours later, to the UK, a country I had never before visited. Little did I know that some years later I would return to the very same British Embassy to spend several days as a guest of the Ambassador, together with distinguished members of the English Bar and the judiciary.
I was both fascinated and terrified by the prospect of becoming a barrister. With all I knew about how hard it was to get in, I was worried that coming from Albania, with imperfect English and a degree not from what Sir Humphrey would have described as ‘one of the two universities’, the odds seemed stacked against me. But an LLM in Public International Law and several internships and publications later, I thought it was time to try. One cold and rainy evening in Strasbourg, in the middle of my internship at the Council of Europe, and in what I later learned to be true barristerial fashion, I submitted my application form to Bar school two hours before the deadline.
Following Bar school and many pupillage applications and interviews (some soul-crushing, others less so) later, I secured two criminal pupillage offers. The one which I accepted, I later discovered, had had 800 applicants. My first pupillage did not lead to tenancy. I simply did not fit in and I was later told that I was ‘too human rightsy’. But six stressful months later, as a third-six pupil, I found myself a tenant in a much more vibrant and fitting chambers, 18 Red Lion Court which is now Red Lion Chambers.
My journey to pupillage and tenancy was faster than some of my contemporaries at Bar school who came from the affluent English middle-classes. It is fair to say that it is to the credit of the Bar that there were at least some members who had the flexibility, imagination and broad-mindedness to welcome someone of my less than traditional background.
In retrospect, while my entry to the Bar seems relatively painless (though it did not seem so at the time) I learned that being foreign and having a foreign surname would sometimes be held against me.
There were occasions relatively early in practice. About 10 years ago, I prosecuted a defendant appearing unrepresented in the crown court sitting in a town outside London. As all counsel who have at some point been in my position would attest, that is the classic nightmare for a prosecutor. I attempted to be fair to the defendant and to afford him greater latitude on a particular point. The judge disagreed – in my favour, I suppose one could say – but began his reasons with the words: ‘In this country, the rules of evidence….’. Despite my initial surprise, I quickly replied that I was aware of the rules as I had in fact been called to the Bar in this country. I subsequently shared the story with several members of the Bar who encouraged me to report it. I did not do so. I thought that would distract from trying to build a practice and concluded that it was an isolated example of xenophobia, which, as it turned out, was not the case. There have since been too many examples to list, including a fellow barrister commenting to me with a straight face that she was relieved to meet an Albanian ‘on the other side of the fence’, ie on the other side of the law. Another recently commented in a professional context that I had not been to the ‘right schools’ and that his plumber was Albanian, though a surprisingly well-read one.
By contrast, from 2011 or so I had the privilege to work on legal reform in Albania through the Slynn Foundation, where I worked mainly with two retired Court of Appeal judges and two prominent silks who have since become judges. The contrast with the above examples could not have been starker. My experience working with the Slynn Foundation project was a masterclass in respect, inclusivity, generous mentoring and professional excellence, for which I will always be grateful. To single out just a few, they included the late Sir Henry Brooke CMG, Sir David Latham, James Dingemans QC (now Dingemans LJ) and Philip Bartle QC (now HHJ Philip Bartle).
Equally, I have been lucky to have worked on many cases in the English courts and internationally in which I have had the support and mentorship of some truly great barristers and solicitors, both as professionals and as people.
I am not from any ethnic minority which has suffered widespread discrimination. There are not enough Albanians in the UK or at the Bar to have made that statistically possible. Nevertheless, my personal experience has shown me that discrimination and lack of inclusivity are nuanced phenomena, that apply beyond established categories. Instead, they are problems deeply rooted in discomfort with, scepticism of – and at times rejection of – those who do not squarely fit the historical barrister stereotype, whether because of their gender, class, colour or a more general lack of privilege. It has also shown me that they do not stop with admission into the profession but follow you, long after, in practice. I think we fail those from disadvantaged backgrounds, and deny them equality of opportunity, if we consider our responsibilities in that regard at an end just because they have gained entry into the profession.
I start with the positive. The Bar model is unusual but also effective. It encourages self-reliance, imagination and hard work. It has enabled me to diversify my criminal practice with international work. For example, it took substantial effort and imagination but, within two years of deciding to diversify my practice, I was on the counsel team in an investment treaty arbitration. And now as part of my UN mandate, I am leading the thematic study in sustainable development in international investment law, including investment treaty arbitration.
As for the negative, apart from the lack of a safety net which is inherent in self-employment, in my view, one of the main issues which inclusivity and diversity face is the currently insufficient mentorship and career support to people that come from disadvantaged groups: whether they are women who struggle with life-work balance, ethnic minorities or the under-privileged. A more structured and tailored approach is necessary in order to provide truly equal opportunities (as opposed to outcomes) so that barristers can remain in the profession and make a success of it. Although there appears to be some movement in that regard, it only involves a handful of chambers and their impact remains to be seen.
Ultimately, admission into ‘the club’ is not enough. It is the beginning of inclusion, which without more, it turns into mere tolerance and the obstacles are merely moved one step further back, leading to a two-tier profession.
Klentiana Mahmutaj is a barrister at Red Lion Chambers and specialises in white-collar crime, human rights and international arbitration. She also holds a UN mandate as an independent expert on the Expert Mechanism on the Right to Development.
I was recently appointed by the United Nations Human Rights Council (UNHRC) as one of five independent experts on the Expert Mechanism on the Right to Development, a right which the UN General Assembly proclaimed in 1986 as an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.
I will carry out that mandate, which lasts three years, alongside my practice at the Bar. My fellow experts and I will advise the UNHRC on how to give practical effect to the right to development at a global level. As part of our work we will address, among other things, the responsibility of States to act both individually and collectively in global and regional partnerships; and in formulating development policies and programmes that affect persons within and without their jurisdiction.
As the purpose of my UN mandate is to help states move from mere rhetoric towards making the right to development a reality, it has made me reflect on my own personal journey of development and on issues of inclusivity and diversity at the Bar.
I was born and grew up in Tirana, the capital of Albania. I was the first member of my family to go to university. After a year of studying law at Tirana University, in the Roman law tradition, in 1998 I received a full scholarship to study law at De Montfort University in Leicester. That was a time of exceptional tumult in Albania. In 1997, the tanks were in the streets. It seemed everyone had a Kalashnikov. The country only narrowly escaped a civil war and stability was slow to arrive. Only months before I left, an MP was murdered on the steps of Parliament.
I left Albania on the afternoon of 23 September 1998, having spent the morning arguing with the Consul at the British Embassy in Tirana about why he should grant me my student visa. It took some argument but, reassured that I had no intention of seeking asylum in the UK, he relented. My passport was stamped and I rushed to the airport to catch my plane, two hours later, to the UK, a country I had never before visited. Little did I know that some years later I would return to the very same British Embassy to spend several days as a guest of the Ambassador, together with distinguished members of the English Bar and the judiciary.
I was both fascinated and terrified by the prospect of becoming a barrister. With all I knew about how hard it was to get in, I was worried that coming from Albania, with imperfect English and a degree not from what Sir Humphrey would have described as ‘one of the two universities’, the odds seemed stacked against me. But an LLM in Public International Law and several internships and publications later, I thought it was time to try. One cold and rainy evening in Strasbourg, in the middle of my internship at the Council of Europe, and in what I later learned to be true barristerial fashion, I submitted my application form to Bar school two hours before the deadline.
Following Bar school and many pupillage applications and interviews (some soul-crushing, others less so) later, I secured two criminal pupillage offers. The one which I accepted, I later discovered, had had 800 applicants. My first pupillage did not lead to tenancy. I simply did not fit in and I was later told that I was ‘too human rightsy’. But six stressful months later, as a third-six pupil, I found myself a tenant in a much more vibrant and fitting chambers, 18 Red Lion Court which is now Red Lion Chambers.
My journey to pupillage and tenancy was faster than some of my contemporaries at Bar school who came from the affluent English middle-classes. It is fair to say that it is to the credit of the Bar that there were at least some members who had the flexibility, imagination and broad-mindedness to welcome someone of my less than traditional background.
In retrospect, while my entry to the Bar seems relatively painless (though it did not seem so at the time) I learned that being foreign and having a foreign surname would sometimes be held against me.
There were occasions relatively early in practice. About 10 years ago, I prosecuted a defendant appearing unrepresented in the crown court sitting in a town outside London. As all counsel who have at some point been in my position would attest, that is the classic nightmare for a prosecutor. I attempted to be fair to the defendant and to afford him greater latitude on a particular point. The judge disagreed – in my favour, I suppose one could say – but began his reasons with the words: ‘In this country, the rules of evidence….’. Despite my initial surprise, I quickly replied that I was aware of the rules as I had in fact been called to the Bar in this country. I subsequently shared the story with several members of the Bar who encouraged me to report it. I did not do so. I thought that would distract from trying to build a practice and concluded that it was an isolated example of xenophobia, which, as it turned out, was not the case. There have since been too many examples to list, including a fellow barrister commenting to me with a straight face that she was relieved to meet an Albanian ‘on the other side of the fence’, ie on the other side of the law. Another recently commented in a professional context that I had not been to the ‘right schools’ and that his plumber was Albanian, though a surprisingly well-read one.
By contrast, from 2011 or so I had the privilege to work on legal reform in Albania through the Slynn Foundation, where I worked mainly with two retired Court of Appeal judges and two prominent silks who have since become judges. The contrast with the above examples could not have been starker. My experience working with the Slynn Foundation project was a masterclass in respect, inclusivity, generous mentoring and professional excellence, for which I will always be grateful. To single out just a few, they included the late Sir Henry Brooke CMG, Sir David Latham, James Dingemans QC (now Dingemans LJ) and Philip Bartle QC (now HHJ Philip Bartle).
Equally, I have been lucky to have worked on many cases in the English courts and internationally in which I have had the support and mentorship of some truly great barristers and solicitors, both as professionals and as people.
I am not from any ethnic minority which has suffered widespread discrimination. There are not enough Albanians in the UK or at the Bar to have made that statistically possible. Nevertheless, my personal experience has shown me that discrimination and lack of inclusivity are nuanced phenomena, that apply beyond established categories. Instead, they are problems deeply rooted in discomfort with, scepticism of – and at times rejection of – those who do not squarely fit the historical barrister stereotype, whether because of their gender, class, colour or a more general lack of privilege. It has also shown me that they do not stop with admission into the profession but follow you, long after, in practice. I think we fail those from disadvantaged backgrounds, and deny them equality of opportunity, if we consider our responsibilities in that regard at an end just because they have gained entry into the profession.
I start with the positive. The Bar model is unusual but also effective. It encourages self-reliance, imagination and hard work. It has enabled me to diversify my criminal practice with international work. For example, it took substantial effort and imagination but, within two years of deciding to diversify my practice, I was on the counsel team in an investment treaty arbitration. And now as part of my UN mandate, I am leading the thematic study in sustainable development in international investment law, including investment treaty arbitration.
As for the negative, apart from the lack of a safety net which is inherent in self-employment, in my view, one of the main issues which inclusivity and diversity face is the currently insufficient mentorship and career support to people that come from disadvantaged groups: whether they are women who struggle with life-work balance, ethnic minorities or the under-privileged. A more structured and tailored approach is necessary in order to provide truly equal opportunities (as opposed to outcomes) so that barristers can remain in the profession and make a success of it. Although there appears to be some movement in that regard, it only involves a handful of chambers and their impact remains to be seen.
Ultimately, admission into ‘the club’ is not enough. It is the beginning of inclusion, which without more, it turns into mere tolerance and the obstacles are merely moved one step further back, leading to a two-tier profession.
Why admission to ‘the club’ is not enough: a UN mandate to give practical effect to the human right to development prompts a personal reflection on diversity and inclusivity at the Bar
By Klentiana Mahmutaj
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