We need to talk about race: a mid-term report

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Microaggressions in court and everyday racism: what white colleagues don’t have to put up with and a 10-step plan for improving diversity and inclusion. By Professor Leslie Thomas QC

We may have different religions, different languages, different colored skin, but we all belong to one human race.’

Kofi Annan

 

Earlier this year I was approached by Counsel to write an article on race and diversity at the Bar. I did so. That article appeared in the July 2020 issue. This is a follow-up article. Look at it as a mid-term report as to how we are doing as a profession. My verdict is that we could be doing so much better. There is still a lot of room for improvement.

As I was writing this article, news broke that a friend of mine and a fantastic young talented barrister, Alexandra Wilson, author of In Black and White, was the subject of unacceptable and racist behaviour while doing her job. No, she was not subjected to explicit racist abuse. You don’t have to be to suffer these microaggressive behaviours in the workplace. But she was made to feel that the space in which we all inhabit and is part of our daily professional lives, the courtroom, only belongs to some of us and not all of us – despite the fact that we all have the same qualification to practise at the Bar and appear in court.

What was that behaviour? She was repeatedly assumed not to be a barrister. And, indeed, was shouted at by a clerk to get out of court. Alexandra noted that none of the white barristers were challenged or made to justify their existence.

How is Alexandra different? She is a young Black woman. When we people of colour are assumed to be defendants where our white colleagues are not, this is racism, pure and simple. An assumption is made by just looking at the colour of our skin that we are to be seen in a negative light. Let’s face it – saying you are a defendant isn’t paying you a compliment. If you are Black, you must be the defendant, not a court professional. The fact is that Black counsel are disproportionately seen more negatively than white counsel and assumed not to be who we are.

Alexandra’s story is not unique. I remember, when I was a young barrister over 30 years ago, another brilliant Black woman barrister telling me a similar story. Her name was Nicola Williams and at the time she was a colleague of mine when I was at Wellington Street Chambers. It was 1989 and I was just starting on my journey at the Bar. Nicola would often tell me and others that whenever she went to court she would be assumed to be anyone but the barrister. She would be the defendant, the defendant’s sister, friend, clerk, etc, but never the barrister. It was something that we, Black people, could relate to. Indeed, over the course of my career this has happened to me numerous times and I have my own stories to tell. Time and time again I would shrug it off and deal with the task at hand, namely being a barrister and representing my clients, despite the fact that these microhostile encounters with court staff, other barristers, and at times judges were deeply upsetting. Many barristers of colour have similar stories to tell. So, my white colleagues, do not be surprised. This is happening all the time. And needs to stop.

I even remember one white medical expert coming up to me after we had won a case and saying just how impressed he was with how ‘articulate’ I was in court. I silently thought to myself ‘But isn’t being articulate part of being a barrister?’ Now, I am sure that this expert was trying to pay me a compliment, but it was nevertheless racist. There was an implicit assumption and hence an expectation that I would not be articulate, which is why he was surprised. In his world, Black people apparently are not articulate.

Further, being a person of colour, we are often asked by complete strangers, ‘Where do you come from?’ When we reply, for example, ‘London’, it is often followed up with ‘No, where do you really come from?’ And even if this is followed up with ‘Hammersmith’ this might be met with ‘No, where do you originate from?’ or ‘Where do your parents come from?’ These are highly personal questions based on assumptions derived from your skin colour. They are saying that you are different, that you do not belong here – despite the fact that you may be born, bred and brought up in the UK.

These questions are not just innocent curiosity. They are racist. These are things that white colleagues do not have to put up with. White colleagues do not have to routinely justify their existence. This is the privilege that their white skin gives them.

In my opinion our system of justice is implicitly racist. It is not colour blind. Alexandra’s and many of our experiences are testament to this. These are not one-offs. It is a system which is based on white privilege and white supremacy. We people of colour see it every day and continue to see it. From the top of the profession where there is a shameful lack of diversity among the senior judiciary, all the way down to how court security staff and ushers/clerks treat Black and Brown people, including barristers. It is a damning indictment as to how court users of colour are treated appallingly. The immigration tribunal and the criminal courts are particularly bad. As I observed in my previous article, the Lammy Review in 2017 found that Black defendants were 240% more likely to receive a prison sentence for a drug offence than white defendants, and that Black people, who make up 3% of the population, make up 12% of prisoners and 21% of those in youth custody. Every one of those Black prisoners was sent there by a judge. In my previous article I also related a colleague’s experience of everyday racism in the immigration tribunal.

Alexandra could not have put it better when she said in a BBC interview that: ‘No one should have to be shouted at and told to get out of court, whether they are defendants or barristers.’ So our profession needs to take a long hard look at itself.

I repeat that I am not a race expert, but I am learning. We all have to learn. So what do we have to do? I want to suggest a plan for improving diversity, which I set out below:

Increasing the presence of Black people in senior positions within the legal industry: what we must do

Theory

  1. The Bar has to acknowledge that there is a problem with racism as it pertains to recruitment, retention and promotion.
  2. We have to recognise and dismantle the idea that our legal system is built merely upon the idea of meritocracy. Privilege plays a significant part.
  3. We should discard false notions about chambers being ‘equal opportunity employers’ with a reliance that the problem can be solved with some unconscious bias training. These tools have proven themselves to be ineffective and the reality is they have made no material difference to the advancement of Black people and people of colour within the profession.
  4. We should take the focus away from white people. Implementing changes in this respect is an attack on the structural unfairness of (and inherent white privilege within) the system, not a personal one.

Practice

  1. We must, as Black people, educate and gain a better understanding of ourselves.
  2. It is necessary to garner and encourage the support of white allies – we are all in this together and cannot achieve lasting and effective change on our own. Black people and people of colour need white allies in positions of power to facilitate the changes we want to see. Changes are more likely to take place if there is a collaborative approach.
  3. Our white allies must educate themselves. They cannot look to Black people and people of colour to educate them. A good starting place is the compilation of anti-racism resources by Ayesha Rana which can be found here.
  4. Challenge white allies and non-allies who are sceptics. Demonstrate that the facts speak for themselves – gather the statistics. Anecdotal evidence is not enough.
  5. Crunch the data – take David Lammy’s approach in his review on the unequal treatment of Black people within the criminal justice system: if there are no justifiable reasons for different treatment, that differing treatment must be attributed to racism.
  6. Part of the data gathering exercise must involve people of colour speaking about their experiences. They will need a safe space to do so. Therefore, the Bar Council and individual chambers need to devise a questionnaire to be completed by all non-white people within the organisation. This will enable those people to tell the organisation about their experiences. With data you know where you are at; the experiences become solidified.
  7. The profession, whether that be the governing body or individual sets of chambers, need to commission a race expert to assist with drafting appropriate questions to include within the questionnaire.
  8. Each set of chambers should devise a list of achievable positive actions to take – active measures which will benefit Black people (eg set clear targets to increase numbers, mentoring, specialist recruitment). These measures are not positive discrimination and are therefore not illegal under the Equality Act.
  9. Chambers should follow the lead of the Bar Standards Board’s Race Task Force Committee and implement a reverse mentoring programme where the mentees are senior white members of the profession and the mentors are junior people of colour. The experiences of people of colour should be discussed.
  10. Off the back of the discussions which arise from the reverse mentoring sessions, take steps to implement positive actions which will tackle underrepresentation.
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Professor Leslie Thomas QC

Professor Leslie Thomas QC, of Garden Court Chambers, is Gresham College’s first Black Professor of Law in its 400-year history and is a Visiting Professor at Goldsmiths, University of London. A former Joint Head of Chambers at Garden Court, Leslie is a human rights/civil liberties specialist with an emphasis on inquests and public inquiries. He is a Master of Bench at Inner Temple and received the Lifetime Achievement Award (2017) in the Diversity Legal Awards from the Black Solicitors Network.