Black inclusion and the Commercial Bar

The worldwide racial reckoning which followed the video-recorded murder of Mr George Floyd Junior in Minnesota, US on 25 May 2020, led many at the Bar to think more deeply about the scar of race-based inequality on our profession. The Commercial Bar Association (COMBAR), the Chancery Bar Association (ChBA) and the Technology and Construction Bar Association (TECBAR) shared a wish to tackle racial inequality, and Black inclusion in particular, across their spheres of influence. They decided to collaborate in an enquiry and commissioned the three of us, along with Abdul-Lateef Jinadu and Jeremy Richmond KC (as members of those Specialist Bar Associations (SBAs)), to investigate and report our recommendations. Collectively, we are the Black Inclusion Group (BIG). We were supported by the equality, diversity and inclusion (EDI) leads of all three Commercial SBAs and were free to determine how we approached our task.

Our report, The Specialist Commercial Bar & Black Inclusion – First Steps was published in April 2022. The subject matter, the scope of our enquiry and the calibre of the qualitative and quantitative evidence we gathered and published make our report genuinely ground-breaking. This article aims to inform you about our work and the SBAs’ steps to tackle racial inequality in their practice areas.

Another report – is there anything new?

The focus on racial inequality, particularly in the Judiciary and at the Bar, has been increasing. The Bar Standards Board (BSB) has reported. The Bar Council has reported. Middle Temple’s Race Working Group and several other Bar organisations have reported. All reports highlight significant racial inequality. Inequality in terms of representation and progression were to some extent already visible. Racial inequality in remuneration and adverse experiences in practice have also become clear. As with other sectors, the problematic use of data for a group described ‘BAME’ has been recognised. Comparing BAME barristers with their white counterparts, masks very different outcomes for different racial groups. Evidence now confirms what we knew anecdotally: underrepresentation is most acute in relation to Black African, Black Caribbean and mixed heritage practitioners.

The BSB’s Income at the Bar report laid bare the impact of gender and race on incomes. Adjusting for areas of practice and seniority, ‘BAME’ barristers still earn significantly less than their white counterparts. The headlines were stark; BAME women had the lowest incomes overall. As a group, both Black African and Asian Bangladeshi barristers had the lowest incomes.

The Criminal Bar’s attrition issues are very much in the news. The Criminal Bar Association has highlighted the impact that attrition has for diversity at the Bar as whole. Those from diverse backgrounds and women are much more likely to be practising in the less well-remunerated, publicly funded Bar. A focus on the Specialist Commercial Bar and racial inequality for the most underrepresented group is timely. A focus on the experience of Black African, Black Caribbean and mixed heritage barristers in those well-remunerated areas of practice involves a dive into some of the greatest disparities.

Who did we speak to? Where will this take us?

We spoke to many people: the BSB, the Bar Council and others working to tackle inclusion generally and Black inclusion in particular. We read reports. We collected a large amount of evidence from the Bar. We brought Black barristers together for closed, confidential roundtable discussions. We sent a survey to the SBAs’ membership.

The experiences and views shared confidentially by Black barristers were powerful and very challenging. Twenty pages of the report summarise that material. We invite every barrister to read it and to reflect on how things need to change, uncomfortable as it is.

Between 370-400 practitioners responded to questions covering career progression, attrition and the experience or witnessing of race or ethnicity-based banter, bias and bullying, the nature and source of such behaviours and who, in a barrister’s career, had a positive and who had a negative impact.

The evidence obtained from the Specialist Commercial Bar and the views and experience of those who kindly gave us their time and shared their experience, thoughts and ideas demonstrated that there is a depressingly large mountain to climb. There are no quick fixes. We decided to focus on five specific topics that seem to encapsulate what we see as the ways forward:

1. outreach;
2. recruitment;
3. retention;
4. progression; and
5. culture.

Our findings: just a few now but please read the report

There is no substitute for reading the report including the material from the Roundtable discussions (Appendix 2) and the survey results (Appendix 3).

The Specialist Commercial Bar is failing to attract, recruit and retain Black barristers, as demonstrated by the relatively low success rate of Black applicants for pupillage, the paucity of Black silks and the complete absence of a single full-time Black High Court Judge. The outcomes for Black barristers are notably worse than for other ethnic minorities. The Specialist Commercial Bar is missing out on available Black talent.

The experience of some Black barristers in practice is one of substantial hurdles and barriers along with profound levels of isolation, dislocation and an absorbed sense of not belonging. Some contributors talked of ‘being highly visible while being overlooked’, ‘always being on trial’, finding ‘throughout my career people have regularly doubted I am a barrister’ and understanding ‘the requirement for Black excellence’. They also described experiences of overt racism.

Those accounts were supported by the fact that 47% of those who responded to the survey (the majority of whom are White) reported witnessing race or ethnicity-based unacceptable behaviours during their professional lives. Behaviours that would be contrary to the Code of Conduct. That confirms, shockingly, such behaviour is going on in plain sight.

Our call to action: some of our recommendations

In total we make 17 recommendations in the report. Our call to action is relevant to chambers as well as the SBAs. Examples of our recommendations include the following:

• On outreach, we recommend that the SBAs develop an introduction to the Specialist Commercial Bar programme for Year 12 and 13 students and build connections with universities that have higher proportions of law and non-law students from Black backgrounds.
• On recruitment, we recommend that the SBAs should proactively collaborate with existing groups already supporting aspirant barristers of Black heritage seeking pupillages at the Specialist Commercial Bar, and to hold joint sessions offering practical guidance and support on completing written pupillage applications and preparing for pupillage interviews.
• On retention, we recommend that the SBAs:
• invite member chambers to monitor and measure the allocation of junior briefs by silks, to ensure fair allocation of opportunities (particularly junior briefs), which are likely to enhance career development and progression;
• collaborate with existing Black practitioner networks and organisations to provide regular mentoring and sponsorship opportunities for Black juniors with leading practitioners in their practice areas; and
• arrange workshops with the editors of each of the principal legal directories concerning the Bar, to address underrepresentation and other identified disparities affecting ethnic minority barristers being included in the directories, particularly Black practitioners in the SBAs’ practice areas.
• On progression, we recommend that the SBAs:
• provide focused mentoring programmes and sponsorship opportunities for junior Black practitioners contemplating applications for silk and judicial appointments; and
• hold annual events, to which representatives of the judges of the Business and Property Courts are invited to assist in explaining to practitioners the evidence required to support a positive reference for the KC Selection Panel.
• On culture, we recommend that the SBAs:
• facilitate Black practitioners at the Specialist Commercial Bar networking together; and
• consider when planning all initiatives and events whether there is an opportunity to encourage senior white barristers to engage proactively with supporting the inclusion, retention and progression of Black practitioners.

What’s next...

For you? Please consider reading the full report.

For the SBAs? All SBAs welcomed the BIG report despite it being uncomfortable reading. A joint launch event is being planned. All are all working on achieving change. For instance, COMBAR has launched two scholarships for study on the Bachelor of Civil Law (BCL) for Black graduates and mentoring scheme for underrepresented groups. ChBA is developing an action plan, creating a series of ‘explainer’ online videos for school age children and liaising with BME Legal, Bridging the Bar and 10,000 Black Interns.

As for us? We will continue to work with the SBAs, including encouraging them to implement our recommendations and keep the need for change on the agenda.