Making it stick: Diversity & inclusion at the Bar

Looking out, looking in: in a interview with Gary Younge, The Guardian’s editor-at-large, Desiree Artesi explores diversity solutions and the Bar’s parallels with the media sector

Gary Younge – multi-award-winning author, broadcaster and editor-at-large for The Guardian – is the product of ‘an open, unashamed targeted recruitment effort’ to boost black journalism.

Born in Hertfordshire to Barbadian parents, he grew up in Stevenage and in his final year at Heriot-Watt University in Edinburgh won a bursary from The Guardian to study journalism. Younge has since carved a ground-breaking and critically acclaimed journalistic career. A prolific writer and also broadcaster, he has made several radio and television documentaries on subjects ranging from gay marriage to Brexit. In November 2017, his masterful piece for Channel 4, Angry, White and American, an interview of Richard Spencer, a self-styled leader of America’s alt-right, won worldwide praise.

Despite a growing number of scholarships and funding opportunities in the media sector specifically aimed at boosting diversity, Younge remains amongst a minority of black journalists. Journalism, like the legal profession, is still largely the preserve of white middle classes. Research in 2016 found that 94% of journalists in Britain are white and that 54% of leading print journalists went to Oxford or Cambridge (see below).

In an article for this magazine, ‘#CallitOut: Why are BME barristers more likely to be pursued by the BSB?’ (Counsel June 2018), I explored some uncomfortable truths about diversity and the importance of reform and change. Is it time we looked outside our immediate landscape to try to find answers? I wanted to ask Younge about his own experience, how media institutions are trying to manage change and what, if any, lessons we can learn at the Bar.

Statistics, symbols and substance

When I interview Younge I outline the areas of serious concern as they relate to the Bar and wider legal landscape. First, the low numbers of black, Asian and minority ethnic (BAME) students obtaining pupillage – highlighted in Bar Standards Board research and followed up in the Chalkley Report for the Bar Council (The Differential Attainment of Applicants through the Pupillage Gateway, February 2018. Secondly, the number of BAME judges and, in particular, the lack of appointment of practitioners from black Caribbean descent – highlighted in the Third Report by JUSTICE 2017 and in the Ministry of Justice’s 2017 Judicial Diversity Statistics. Interestingly, there seem to be – at least on paper – favourable statistics on the appointment of BAME Silks. This, however, does not appear to translate into judicial appointments to the Circuit, High Court, Court of Appeal and Supreme Court.

I ask Younge about the usefulness, or not, of statistics in the process of embedding diversity and change. He agrees that it is difficult to solve problems if their causes are unknown, but that statistics should not stand in the way of action. ‘It is important to have fair and transparent recruitment processes, regardless of what the statistics show,’ he says. ‘It is important that the staff tasked with implementing those processes are trained in diversity and, in particular, in unconscious bias. It is important that recruitment panels be gender and race neutral. In short, statistics should not hold up good governance.’

As far back as 2007, Younge wrote: ‘Symbols are important, but they should not be mistaken for substance.’ Applying this principle to the justice system, symbols allow for one black Caribbean descent judge in the County Court, High Court or Court of Appeal. Substance would deliver about 500 black judges at all levels. The reality equates to roughly 50 BAME judges, predominantly appointed in the tribunals and out of a total of some 4,920 judges (including tribunal but excluding non-legal members) in the UK as of April 2017.

Can audits, on their own, achieve anything? Younge uses the analogy of the gender pay gap: ‘Thanks to the data, we now have meaningful information and so we can begin to redress that gap. It remains to be seen whether people will act on the information.’ He points to the Race Disparity Advisory Group – chaired by Simon Woolley and set up in March 2018 to address ethnic disparities in youth unemployment, following publication of the Race Disparity Audit – as a ‘real opportunity’ to make a ‘meaningful difference’ to the race conversation across the UK.

Although collecting statistics is a first step to identification of areas of concern, Younge says that ‘ultimately, we must be clear about what we are trying to achieve’. At present, there is no audit which can explain why practitioners of black Caribbean descent are not represented in the judiciary. But, are statistics really necessary before one can arrive at a conclusion that something is not working? To use a revised version of a quote famously attributed to Mr Justice Stewart, an American judge: ‘We know it when we see it.’

One solution that has emerged as a means of driving change in the recruitment of pupils to the Bar is the blind application process, where no personal details whatsoever are included (see 'Blind recruitment', Counsel, September 2018). Take-up amongst chambers is not widespread, but Younge endorses this approach as an agent of change: ‘There is a philosophical case for the use of this model. Applicants are then being assessed on their specific experience and qualifications rather than a range of social signifiers that can skew the outcome. There is also a strategic case, in that the current position cannot get any worse.’ Having regard to the number of years it has taken the Bar to arrive at its current diversity level, things can, in the words of D:Ream, ‘only get better’.

Goals and continual assessment

Younge argues that we must first be clear about our goals, and not to muddle equal and social opportunities on the one hand, with institutional change on the other. He explains that ‘the goal should be to achieve institutional change and not to tinker at the edges whilst maintaining the status quo’. To this end, ‘it is important that the institutions look to broaden the people who perform key roles’. In the context of the Bar this would mean employing BAME staff at all levels of both the Bar Council and the Bar Standards Board. Similarly, the Judicial Appointment Commission ought to include BAME staff at all levels. Employing people with different experiences can broaden what is possible, feasible and acceptable. ‘In so doing we can ultimately change the conversation, and tackle the problem in a way that promotes meaningful and lasting change,’ he says.

Next, he considers it necessary to assess the blockages, which ‘may not always be obvious’. His observations are astute: ‘Sometimes blockages are at entry point, or at the point of preparation for entry. Often there is a perception problem so, for example, a young black student from a socially disadvantaged background may not consider that the Bar is somewhere that he or she might be welcomed or fit in, and so not apply. Again, the blockage might be at the recruitment stage or, even more importantly, at the retention stage. And what of commercial blockages; staying at the Bar but not progressing? Often it can be a combination of all of these factors, but the problems do manifest themselves in different ways.’

It is important to assess the problem constantly and to try different solutions because what ‘worked five years ago might not work today’. For example, the recruitment blockage might be solved, but then retention or commercial blockage becomes a problem. Here is another echo of familiarity in the context of the Bar. Fifty years ago the challenge was gender diversity and fair access to work for male and female barristers. Now women are entering the profession in almost equal if not larger numbers than their male counterparts. The challenges have moved on.

Shifting the dial

Another solution Younge points to is mentoring, which is something the Bar and the Inns have run for years. We know that simply having someone to ask, ‘This has happened, what do you think?’ or someone taking an interest, asking ‘How you are getting on?’ over a cup of tea is important; young entrants to the Bar without the socio-economic background and skills to navigate our particular institutions may well find it overwhelming.

Whilst many people shy away from the use of quotas, it is undeniable that it was a form of quota – the all-women shortlist – which shifted the dial on the number of women in politics today. I suggest that surely it is time for such a shift in our profession, and, particularly for all levels of the judiciary? What a difference it could make if we had as little as two scholarships a year for bright, BAME and economically disadvantaged entrants.

Younge reflects on his own experience of how he came to be employed by the Guardian Newspaper Group. He points to a number of eminent UK journalists who came to journalism by a similar route, which he describes as ‘an open unashamed targeted recruitment effort to bring black journalists into journalism’. Of course, this is often met with the arguments of lowering standards but in rebuttal, I would point to Younge’s awards and accolades; most recently Feature Writer of the Year (2018, UK Press Award) and Amnesty Feature Writer of the Year (2018). In 2017 his book Another Day in the Death of America won the Columbia Prize. In 2016, he was awarded a Harvard prize. He is clear that he would not have been where he is today without the targeted recruitment of black journalists. Who in their right mind would doubt that Younge has earned his stripes and raised the standard of journalism?

Embedding institutional change

What of entrenched attitudes? How can the Bar go about embedding diversity? Younge is extremely insightful on this point: ‘I am not interested in changing other people’s attitudes or views. What I do, however, seek to change is the institutions, and the rules and policies by which the institutions are governed.’ He feels strongly that ‘diversity has to be about more than talking different and acting the same. You cannot legislate for common sense and decency but you can legislate for fairness, and you can legislate for equality.’ Applying this to the Bar, can more be done to ensure that fairness and equality prevails? The answer is clearly ‘yes’ and echoed in the call to action issued jointly by Chair of the Bar Andrew Walker QC and Chair of the Bar’s Equality and Diversity Committee Robin Allen QC, following the Chalkley Report. They pledged to continue to drill down into the problems and work with ‘key intermediaries such as the Inns and BPTC providers to ensure that candidates have access to the information, advice and support that will enable them to maximise their chances of success in any application round’. Younge puts it bluntly; that it is in the interests of the survival of the Bar that it evolves. ‘Failure to evolve leads to obsolescence, loss of credibility, trusts and relevance.’

Government’s role and accountability

Younge agrees that government has a role to play here and ‘ought to be concerned about the values and practices of chambers with whom they do business’. Millions of pounds of taxpayers’ money is spent annually to purchase legal services. It is highly arguable that the government has a clear duty to ensure that money is spent where chambers can demonstrate a diverse membership as well as fair and equal recruitment and retention processes. This is not a case of re-inventing the wheel. Such an initiative is already practised by American firms who have long been familiar with civil rights legislation and initiatives. Following the collapse of Carillion, the UK government announced in June 2018 that it would challenge its major suppliers to do better on equality and diversity and extend the Social Value Act to ‘create and nurture vibrant, healthy, innovative, competitive and diverse marketplaces of suppliers’. It’s not so far a leap to apply this to legal services suppliers.

Younge goes further and argues that the Bar should be accountable in the same way that the media is: ‘Nobody elects the media but, like the Bar, both serve the public. Neither are democratically accountable but have a responsibility to account for what they do because neither exists in a bubble. The Bar stands as a guardian of the rule of law and is the conduit through which members of the public access justice.’ When a barrister is appointed to the Bench they then become the handmaidens of justice. In both of those roles, there is a responsibility to be accountable to the public.

Perception remains king

In his opening remarks at the Grenfell Enquiry, Leslie Thomas QC unapologetically asked some hard-hitting rhetorical questions: Did the enquiry pass ‘the smell test’? Did anyone ever live in social housing? Do they know anyone living in social housing? Colleagues may bristle and say, well, for centuries we have had perfectly good justice dispensed without it being necessary to have the personal experience of those upon whom justice is meted out – but in the technological Snapchat, Twitter, Facebook, WhatsApp, WeChat age in which we live, perception is king. So what Thomas was really talking about is public perception – that justice must be done and be seen to be done. For the Bar and judiciary to remain relevant they both must adapt and evolve, and that means having a Bar and Bench that are reflective of the wider society they serve. This is a question of maintaining credibility. Younge is clear: ‘Credibility, trust and confidence in the justice system, once lost, cannot be regained.’

He puts it another way: ‘Laws are applied by people, to people and to facts relating to people. It is crucial that there is a range of experiences and perceptions in a room in order to have a full conversation.’ As barristers, we arbitrate on people’s lives and, in order to arbitrate fairly on those lives, it is important that we have a range of people – rather than effectively the same person, over and over again. Could it be time for the Bar and Ministry of Justice to set up a Race Disparity Group? They certainly have all the statistics...

Desiree Artesi is a member of Thomas More Chambers, a Bencher of Inner Temple and a member of Counsel’s Editorial Board.


Does British journalism (also) have a diversity problem?

Despite a growing number of scholarships and funding opportunities in the media sector specifically aimed at boosting diversity, Younge remains amongst a minority of black journalists.

A study led by Dr Neil Thurman, published in 2016, found that 94% of journalists in Britain were white; higher than that of the general UK labour force (87%). Compared to the general population, the study found few non-white journalists. At the time of the research, 3% of the UK population was black, compared to 0.2% of working journalists; 2.5% of working journalists were Asian, compared to almost 7% of the general population. Just 0.4% of journalists were Muslim, compared to almost 5% of the population (Journalists in the UK, Neil Thurman, Alessio Cornia, and Jessica Kunert, Reuters Institute for the Study of Journalism).

Research by the Sutton Trust in 2015 found that 71% of QCs and 74% of judges in the High Court and Court of Appeal were privately educated, while more than half (51%) of leading print journalists went to independent schools, with one in five having attended comprehensive schools. Nearly three-quarters (74%) of the senior judiciary went to Oxbridge; and 54% of the country’s leading journalists went to Oxbridge.


#I AM THE BAR: A Bar of all for all

In Summer 2018, the Bar Council launched ‘#I am the Bar’, a media campaign promoting barristers from non-traditional backgrounds to help raise the Bar’s social mobility profile. The aim is to encourage aspiring barristers from non-traditional backgrounds to apply, improve diversity within the profession, and share insight by drawing together profession-wide efforts across chambers, Inns, other organisations and individual barristers.

The Bar Council’s 2018 SOCIAL MOBILITY ADVOCATES:

  • Aadhithya Anbahan
  • Alex Cisneros
  • Joseph Curl
  • James Keeley
  • Danielle Manson
  • Dr Tunde Okewale MBE
  • Grace Ong
  • Mukhtiar Singh
  • Sarabjit Singh QC
  • Natasha Shotunde
  • Rachel Spearing

Read their stories at: www.barcouncil.org.uk/careers/i-am-the-bar-social-mobility/social-mobili...

Add your story: #Iamthebar

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Desiree Artesi

Desiree is a member of Thomas More Chambers and a Bencher of Inner Temple. Called to the Bar in St Lucia in 2004, she has been a member of the BSB Conduct Committee and the Bar Council’s Professional Practice Committee. She is now a member of Counsel’s Editorial Board.